STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY )

)

Petitioner, )

)

vs. ) CASE NO. 91-0871

)

ANTHONY AUTILIO, d/b/a )

CAPELLO HAIR DESIGN, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Orlando, Florida on May 22, 1991.

APPEARANCES

For the Petitioner: Mark E. Harris

Paralegal Specialist Tracey S. Hartman, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For the Respondent: Robert E. Miller, Esquire

Piazza, Miller & Grade, P.A. Raintree Office Park

990 Douglas Avenue

Altamonte Springs, Florida 32714 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Respondent's licenses as a cosmetologist and to operate a cosmetology salon in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 15, 1990, the Department of Professional Regulation, for the Board of Cosmetology, sought to discipline the Respondent's licenses as a cosmetologist and to operate a cosmetology salon in Florida because he allowed an unlicensed beautician to practice cosmetology in his salon in violation of Sections 477.0265(1)(b)2 and (d), and 477.029(1)(c) and (h), Florida Statutes. On November 15, 1990, Respondent's counsel submitted a request for formal hearing, and by letter dated February 6, 1991, the file was

forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

After the parties had responded to the Initial order filed herein, Hearing Officer Joyous D. Parrish, by Notice of Hearing dated March 12, 1991, set the case for hearing in Orlando on May 23, 1991. When the case was transferred to the undersigned, the hearing was moved up by one day and was held as scheduled on May 22, 1991.

At the hearing, Petitioner presented the testimony of Sara Kimmig, an investigator with the Department's Orlando office, and introduced Petitioner's Exhibits 1 through 3. Respondent testified in his own behalf and presented the testimony of Elaine Nemeth, the unlicensed cosmetologist in issue here.

Respondent presented no documentary evidence.

A transcript was filed and thereafter, counsel for Petitioner submitted proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Counsel for Respondent submitted a Closing Argument in writing which was carefully considered in the preparation of this Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein the Petitioner, Board of Cosmetology, (Board) , was the state agency responsible for the licensing and regulation of cosmetologists and cosmetology salons in Florida. The Respondent, Anthony Autilio, held a license as a cosmetologist and a license to operate a cosmetology salon in Florida.

   
   

2. On August 22, 1990, Sara Kimmig, an inspector with the Department's Orlando office, entered the Respondent's cosmetology salon, Capello Hair Designers, located at 5275 Red Bug Lake Road, #117, in Winter Springs, Florida for a routine inspection. As was her custom, she examined the physical plant for compliance with the Board's sanitation rules and also checked the credentials of each operator. When she approached the station at which Ms. Nemeth was applying a permanent to a customer, she noted that Ms. Nemeth's license, displayed on the mirror, was issued by the state of Connecticut, not Florida. No Florida license was in evidence.

   
   

3. When Ms. Kimmig asked Ms. Nemeth if she had a Florida license, Ms. Nemeth admitted she did not, but indicated she had applied for one. Ms. Nemeth also admitted she had been performing cosmetology services at that station for about three weeks.

   
   

4. Ms. Nemeth has been licensed in Connecticut for over 10 years and that license has been kept current. When she first approached Respondent for a job, she asked to be a cleaner, but because of her long experience and the fact that she held a license in another state, he told her she could be his assistant and do shampoos, preparations, and cleanup, none of which requires a Florida license. She told him, then, that she had applied for a Florida license and, about three weeks before Ms. Kimmig's inspection, told him that she had received notice from the Board that she was qualified for licensure and authorizing her to practice pending the issuance and receipt of her Florida license. Respondent took Ms. Nemeth's word for that and did not ask to see the letter. On the basis of her representations, he assigned her a station and allowed her to cut hair, a procedure which does require a license.

5. On the day the salon was visited by Ms. Kimmig, Ms. Nemeth was cutting the hair of and giving a permanent to a friend of the Respondent, Bruno, a shoe salesman, who had given Ms. Nemeth a free pair of shoes sometime previously. Ms. Nemeth was doing the cosmetology work for him in repayment for his prior gift to her.

   
   

6. Mr. Autilio was not in the shop on the day Ms. Kimmig made her inspection. They spoke on the phone the next day at which time he admitted he had allowed Ms. Nemeth to start to do cosmetology work about three or four weeks previously when she advised him she had received the authorization from the Board.

   
   

7. Ms. Nemeth, in fact, had not submitted her application to the Board prior to Ms. Kimmig's inspection. Simply put, due to some family financial reverses, she did not have the required fee to submit with the application, and in addition, had not secured all the credentials verification that she needed from Connecticut. When Mr.. Autilio found out what the situation really was, after the inspection, he immediately loaned her the necessary money for the application fee and his car, and instructed her to drive to Tallahassee, submit her application, pay the fee, and get her license. By that time she had received the information she needed to verify her credentials and did what he suggested. She was issued the required authorization letter the day she submitted her application and paid the fee. She took it back to Orlando with her. At the time of the inspection, however, and for the three or four weeks previous thereto, she practiced cosmetology, in Respondent's salon and with his concurrence, without the appropriate license.

   
   

8. When Ms. Kimmig conducted her inspection on August 22, 1990, she discovered several other discrepancies, most of which were minor. Only one, some hair left in some equipment, was considered not to be minor but it is not the subject of this complaint.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

10. Petitioner seeks to discipline Respondent's licenses because he allowed an unlicensed employee to practice cosmetology in his salon. The burden of proof to establish these allegations is on the Petitioner, Board, which must present clear and convincing evidence of the alleged misconduct Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Section 477.0265, Florida Statutes, makes it unlawful for any person

to:

(1)(b) Own, operate, maintain, open, establish, conduct, or have charge of, either alone or with another person or persons, a cosmetology salon or specialty salon:

1. In which a person not licensed or registered as a cosmetologist or a specialist is permitted to perform cosmetology services or any specialty. and

   (d)Permit an unlicensed person to

   engage in the practice of cosmetology or of a specialty unless such person holds a valid, active license as a cosmetologist or registration as a specialist.

   
   

   1. Section 477.029, Florida Statutes, authorizes the Board to discipline the license of any person who:

      
      

      (1)(c). Permit[s] an employed person to practice cosmetology ... unless duly licensed ... , and

      (d). Violate[s] any provision of Section 477.0265 . .

      
      

   2. Here, the evidence clearly shows that during the period as outlined in the Administrative Complaint, Ms. Nemeth, a cosmetologist licensed in Connecticut but not, then, in Florida, worked as such in the Respondent's salon with his concurrence. It is equally clear that Respondent did not know the true status of Ms. Nemeth's licensure at the time and was, in fact, misled into believing she was properly licensed. Unfortunately, however, he failed to ask for any proof of her licensure and did not even ask to see it. Since he was responsible to insure that all cosmetology work done in his salon was accomplished by a properly licensed individual, his willingness to accept Ms. Nemeth's assurances caused him to commit the offense alleged. Intent to commit this offense is not required.

      
      

   3. Under the provisions of Section. 477.029(2), Florida Statutes, the Board may:

      
      

      1. Revoke or suspend Respondent's licenses,

      2. Issue a reprimand or censure,

      3. Impose an administrative fine of up to $500.00,

      4. Place Respondent's licenses on probation.

      
      

   4. In this case, the offense is not one of willful commission so much as it is of neglect. To be sure, Ms. Nemeth was, at the time, an experienced cosmetologist licensed in another state. As such, the likelihood of her causing harm to those who the requirement was designed to protect was slim. Consequently, under the circumstances of this no more than a reprimand and a fine would be appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be issued herein reprimanding the Respondent, Anthony Autilio.

RECOMMENDED this 3rd day of July, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Offices Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-0871

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

1. - 7. Accepted and incorporated herein.

   1. Rejected as contra to the evidence of record.

   2. 7 10. Accepted and incorporated herein.

COPIES FURNISHED:

Mark E. Harris

Tracey S. Hartman, Esquire Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Robert E. Miller, Esquire Piazza, Miller & Grace, P.A. Raintree Office Park

990 Douglas Avenue

Altamonte Springs, Florida 32714

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Margaret Aase Executive Director Board of Cosmetology

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000871

Orders for Case No: 91-000871