STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2659

)

MAUREEN MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 24, 1991, in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark Harris

Qualified Representative Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Maureen Mitchell, pro se

8100 Northwest 73rd Terrace Tamarac, Florida 33321

STATEMENT OF THE ISSUE

Whether Respondent's cosmetology license should be disciplined for the alleged violation of Chapter 477, Florida Statutes, as set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

On February 14, 1991, the Department of Professional Regulation filed a one count Administrative Complaint against Respondent. The Administrative Complaint alleges that the Respondent was guilty of gross negligence, incompetence or misconduct in the practice of cosmetology in violation of Section 477.028(1)(b), Florida Statutes (1989). Respondent timely requested a hearing on the charges and the case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, Petitioner presented the testimony of three witnesses: Patricia Whitlock; Karen Olszewski, the customer whose treatment gave rise to the allegations in the Administrative Complaint; and Marjorie Beatrice Mayes,

who was accepted as an expert in cosmetology. Petitioner offered two exhibits into evidence, both of which were accepted without objection. Respondent testified on her own behalf and also presented the testimony of Barry Barton, the owner of the salon. Respondent did not offer any exhibits into evidence.

A transcript of the proceeding has been filed. At the hearing, both parties were advised of their right to file proposed findings of fact and conclusions of law prior to the entry of a Recommended Order. On August 8, 1991, Petitioner filed a proposed recommended order. Respondent has not submitted any proposals. A ruling on each of Petitioner's proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.

1. At all pertinent times, Respondent, Maureen Mitchell, was a licensed cosmetologist in the State of Florida having been issued License No. CL0079246 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was employed at Barry's Place for Hair, a cosmetology salon located in Tamarac, Florida (the "Salon").

   
   

2. On January 22, 1990, Karen Olszewski went to the Salon for a permanent. Ms. Olszewski had previously had permanents without any problems or complications.

   
   

3. Respondent was the cosmetologist who gave Ms. Olszewski the permanent on January 22, 1990. After Respondent rolled Ms. Olszewski's hair, she applied the permanent solution in accordance with the manufacturer's instructions. Within a minute after applying the solution, Ms. Olszewski complained that it was burning her scalp. Respondent told her that the solution was heat activated and there was nothing wrong.

   
   

4. Ms. Olszewski complained at least two other times while the solution remained in her hair. Respondent did not take any actions to relieve the discomfort. Barry Barton, the owner of the Salon, looked under the bag that had been placed on Ms. Olszewski's head and stated that he did not see any problems.

   
   

5. The chemicals remained on Ms. Olszewski's head and scalp for approximately 5 to 10 minutes in accordance with the manufacturer's instructions. When the recommended time had expired, Respondent shampooed Ms. Olszewski's hair. During the rinse, Ms. Olszewski again complained of pain. Barry Barton applied cold cream to the customer's scalp. The application of cold cream to an irritated scalp is not an accepted precaution or remedy for a chemical burn.

   
   

6. Respondent did not properly respond to the client's continued complaints of discomfort. Respondent should have immediately stopped the procedure being performed and checked for redness or irritation of the scalp. If the search revealed any indications of a chemical irritation or a burn or if the complaints of discomfort continued, the chemical should have been immediately rinsed with cool water and a neutralizer applied.

   
   

7. After leaving the Salon, Ms. Olszewski continued to experience discomfort. She called the Salon and the owner advised her that there was

   nothing that he could do. Ms. Olszewski went to a dermatologist who treated her for chemical burns on her scalp which were the result of the permanent.

   
   

8. Ms. Olszewski experienced some temporary hair loss and had headaches for a couple of weeks following the permanent. There is no scarring or long term damage to her scalp.

   
   

9. Respondent's conduct falls below the minimally accepted standards of a licensed cosmetologist. While there is no evidence that Respondent misapplied the chemicals or otherwise failed to follow the manufacturer's instructions, Respondent should have reacted more promptly to the customer's complaints of discomfort and terminated the procedure at an earlier point.

   
   

10. Respondent did not make voluntary restitution to Ms. Olszewski for the cost of the permanent or the cost of the medical bills incurred. Ms. Olszewski initiated an action in small claims court for the sums. No evidence was presented as to the results of that legal action.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. Section 477.028(1)(b), Florida Statutes, empowers the Board of Cosmetology to discipline a licensee found guilty of incompetency, misconduct or gross negligence in the practice of cosmetology.

    
    

13. The Petitioner has the burden to prove by clear and convincing evidence that Respondent committed the violations alleged in the administrative complaint. Ferris v. Turlington, 510 S. 2d 292 (Fla. 1987). In this case, Petitioner has established that Respondent was guilty of a violation of Section 477.028(1)(b), Florida Statutes. Respondent, therefore, is subject to discipline for this violation pursuant to Section 477.029(1)(h), Florida Statutes.

    
    

14. Section 477.029(2), Florida Statutes contains the penalties the Board may impose on a licensee for violations of Chapter 477, Florida Statutes. Section 477.029(2) prescribes revocation or suspension of a license or registration, issuance of a reprimand or censure, imposition of a fine not to exceed $500, and/or imposition of a probationary period under such reasonable conditions as the Board may specify.

    
    

15. Rule 21F-30.001 sets forth the Board's guidelines for imposition of the penalties authorized in Chapter 477, Florida Statutes. The Rule reads in pertinent part:

    
    

    1. When the Board finds that any person has committed any of the acts set forth in Section 477.029(1), Florida Statutes, it shall issue a final order imposing appropriate penalties as recommended in the following disciplinary guidelines:

       * * *

       
       

       1. When the Board finds that any person licensed or registered under Chapter 477, Florida Statutes, has committed any of the acts set forth in Section 477.028, Florida Statutes, it is recommended that the Board issue a final order imposing a revocation of the license or registration involved in any such violation.

          
          

          * * *

          
          

       2. Based upon consideration of the following factors, the Board may impose disciplinary action other than the penalties recommended above:

       1. the severity of the offense;

       2. the danger to the public;

       3. the number of repetitions of the offenses;

       4. the length of time since date of violation;

       5. the number of complaints filed against the licensee;

       6. the length of time the licensee or registrant has practiced;

       7. the actual damage, physical or otherwise, caused by the violation;

       8. the deterrent effect of the penalty imposed;

       9. the effect of the penalty imposed on the licensee's or registrant's livelihood;

       10. any efforts at rehabilitation;

       11. the actual knowledge of the licensee or registrant pertaining to the violation;

       12. attempts by the licensee or registrant to correct or stop violations or refusal by licensee to correct or stop violations.

       
       

       * * *

       
       

       (p) any other mitigating or aggravating circumstances. . . .

       
       

16. Applying these factors to the facts in this case, there is no evidence of prior disciplinary action against Respondent, the injuries suffered by the customer were relatively minor, and revocation or suspension would seriously impact Respondent's livelihood. In review of these factors, an appropriate penalty would be to fine Respondent $200 and place her on probation for one year during which time she should complete an advanced training course on the use of chemicals in the practice of cosmetology.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding Respondent guilty of a

violation of Section 477.028, Florida Statutes, imposing a $200 fine and requiring Respondent to complete an advanced training course on the use of chemicals in the practice of cosmetology.

RECOMMENDED this 9th day of September, 1991, at Tallahassee, Florida.

J. STEPHEN MENTON Hearing Officer

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 9th day of September, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2659

The Petitioner has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Petitioner.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

   
   

2. Adopted in substance in Findings of Fact 1.

   
   

3. Adopted in substance in Findings of Fact 3.

   
   

4. Adopted in substance in Findings of Fact

   7 and 8.

   
   

5. Adopted in substance in Findings of Fact

   3 and 4.

   
   

6. Adopted in substance in Findings of Fact 3 - 5.

   
   

7. Adopted in substance in Findings of Fact 5.

   
   

8. Adopted in substance in Findings of Fact 5.

9. Adopted in substance in Findings of Fact 5.

   
   

10. Adopted in substance in Findings of Fact 5.

    
    

11. Adopted in substance in Findings of Fact 6.

    
    

12. Adopted in substance in Findings of Fact 6.

    
    

13. Adopted in substance in Findings of Fact 7.

    
    

14. Adopted in substance in Findings of Fact 10.

    
    

15. Adopted in substance in Findings of Fact 9.

    
    

16. Addressed in the Conclusions of Law.

COPIES FURNISHED:

Mark Harris

Qualified Representative Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Maureen Mitchell, pro se 8100 Northwest 73rd Terrace Tamarac, Florida 33321

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kaye Howerton, Executive Director Department of Professional

Regulation

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: 91-002659

Orders for Case No: 91-002659