STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF )
COSMETOLOGY, )
)
Petitioner, )
)
vs. ) CASE NO. 91-2664
) FERNANDO VARGAS NATAL, d/b/a ) FAHN HAIR/NAILS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on July 17, 1991 before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:
APPEARANCES
For Petitioner: Mr. Mark E. Harris, Paralegal
Department of Professional Regulation 1940 North Monroe
Tallahassee, Florida 32399-0792
For Respondent: Mr. Fernando Vargas Natal, pro se Fahn Hair/Nails
11921 South Dixie Highway, Suite 200
Miami, Florida 33156 and
Mr. Andrew H. Hand Fahn Hair/Nails
11921 South Dixie Highway, Suite 200
Miami, Florida 33156 STATEMENT OF THE ISSUES
The issue in this case is whether the Respondent violated Section 477.029(1)(c), Florida Statutes (1989), which prohibits the employment of an unlicensed individual in the practice of cosmetology.
PRELIMINARY STATEMENT
At the hearing on July 17, 1991, the Petitioner presented the testimony of one witness and offered four exhibits, all of which were received in evidence. On behalf of the Respondent, testimony was presented by two witnesses. The Respondent did not offer any exhibits.
Following the hearing, a transcript of the proceedings was filed with the Hearing Officer on August 7, 1991. The parties were allowed fifteen days from the filing of the transcript within which to file their proposed recommended orders. Both parties filed timely post-hearing submissions containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. The proposed findings of fact submitted by both parties are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times material, the Respondent Fernando Vargas Natal has been a licensed cosmetologist in the State of Florida, holding license number CL 009034.
At all times material, Fahn Hair/Nails has been licensed as a cosmetology salon in the State of Florida, holding license number CE 0053197.
At all times material, Samer Mace has been a registered nail specialist in the State of Florida, holding license number FV 0521832. Samer Mace was not licensed as a cosmetologist in the State of Florida at any time material to this case.
DPR investigator Sandra McKenzie, using the name "Linda," telephoned Fahn Hair/Nails on November 28, 1990, and made an appointment to have her hair done by Samer Mace at 2:00 p.m. on November 30, 1990. On the appointment books at Fahn Hair/Nails, Samer Mace was listed as "Sam."
Upon entering the business premises of Fahn Hair/Nails on November 30, 1990, at approximately 1:45 p.m., DPR investigator Richard Braun observed an appointment for "Linda" for hair services at 2:00 p.m. listed in the appointment book in the column for Sam." Investigator Braun also observed in the appointment book in the column for "Sam," other appointments scheduled that day for manicures, blow drys and washes.
When Fernando Vargas Natal was questioned about the allegations concerning Samer Mace's unlicensed cosmetology activities, Mr. Natal admitted to investigator Braun that Samer Mace had been providing hair services to customers at Fahn Hair/Nails.
When Samer Mace was questioned about the allegations concerning her unlicensed cosmetology activities, she admitted to investigator Braun that she had been providing hair services to customers while in the employ of the Respondent.
Fernando Vargas Natal was aware that, at all times material, Samer Mace was licensed only to perform manicures, and was not licensed to perform hair services.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
In a case of this nature, the Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. The Petitioner has met that burden. Section 477.029(1)(c), Florida Statutes (1989), prohibits the employment of an unlicensed person in the practice of cosmetology, and authorizes the imposition of disciplinary penalties for a violation of the prohibition. The evidence clearly shows that the Respondent knowingly employed an unlicensed person in the practice of cosmetology and is, therefore, in violation of Section 477.029(1)(c), Florida Statutes (1989).
For all of the foregoing reasons, it is recommended that the Board of Cosmetology enter a Final Order in this case concluding that the Respondent has violated Section 477.029(1)(c), Florida Statutes (1989), and imposing an administrative penalty of a fine in the amount of $500.00.
DONE AND ENTERED at Tallahassee, Leon County, Florida, this 4th day of September, 1991.
MICHAEL M. PARRISH, 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 IN CASE NO. 91-2664
The following are my specific rulings on all proposed findings of fact submitted by all parties. As a preface to the specific findings which follow it is noted that there is conflicting evidence on some of the relevant facts in this case. In resolving those conflicts I have, for the most part, found the testimony presented on behalf of the Petitioner to be more persuasive than the testimony presented on behalf of the Respondent.
Findings proposed by Petitioner:
The following paragraphs of the findings proposed by the
Petitioner are accepted in whole or in substance: 1, 2, 3, 6, 7, 8, 9, 10, 11,
and 12.
The following paragraphs of the findings proposed by the Petitioner are rejected as subordinate and unnecessary details: 4 and 5.
Findings proposed by Respondent:
The first sentence of the findings proposed by Respondent is rejected as contrary to the greater weight of the evidence. The second sentence of the findings proposed by Respondent is rejected as not supported by competent substantial evidence and as, in any event, irrelevant.
The third sentence of the findings proposed by Respondent
(the sentence incorporating the recommendation) is rejected as contrary to the greater weight of the evidence.
COPIES FURNISHED:
Ms. Myrtle Aase Executive Director Board of Cosmetology
Department of Professional Regulation 1940 North Monroe Street
Suite 60
Tallahassee, FL 32399-0792
Jack McRay, Esquire General Counsel
Department of Professional Regulation 1940 North Monroe Street
Suite 60
Tallahassee, FL 32399-0792
Mr. Mark E. Harris Paralegal
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, FL 32399-0792
Mr. Fernando Vargas Natal Fahn Hair/Nails
11921 South Dixie Highway, Suite 200
Miami, Florida 33156
Mr. Andrew H. Hand Fahn Hair/Nails
11921 South Dixie Highway, Suite 200
Miami, Florida 33156
Issue Date | Proceedings |
---|---|
Sep. 04, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 7/17/91. |
Aug. 21, 1991 | Petitioners Proposed Recommended Order filed. |
Aug. 13, 1991 | Memorandum to Parties of Record from MMP sent out. (proposed Recommended Order`s due8/22/91) |
Aug. 07, 1991 | Transcript of Proceedings filed. |
Aug. 01, 1991 | Letter to MMP from Andrew H. Hand (re: Charges being dismissed against respondent) filed. |
Jul. 17, 1991 | CASE STATUS: Hearing Held. |
Jul. 15, 1991 | Order sent out. (Motion to Amend Administrative Complaint, granted). |
Jul. 08, 1991 | (Petitioner) Motion to Amend Administrative Complaint filed. (From Mark Harris) |
Jun. 17, 1991 | Notice of Service of Petitioner's Request for Admissions, Request to Produce and First Set of Interrogatories to Respondent filed. (from Mark E. Harris) |
Jun. 07, 1991 | Order sent out. (Re: Petitioner's Motion to Accept Qualified Representative granted for Mark E. Harris). |
May 31, 1991 | Notice of Hearing sent out. (hearing set for 7/17/91; 9:00am; Miami) |
May 29, 1991 | Petitioners Motion to Accept Qualified Representative; Affidavit filed. |
May 20, 1991 | Letter. to DOAH from Andrew H. Hand re: Reply to Initial Order filed. |
May 17, 1991 | (Petitioner) Response to Initial Order filed. (From Tracey S. Hartman) |
May 06, 1991 | Initial Order issued. |
Apr. 30, 1991 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
Issue Date | Document | Summary |
---|---|---|
Mar. 10, 1992 | Agency Final Order | |
Sep. 04, 1991 | Recommended Order | Employment of unlicensed person for the practice of cosmetology warrants fine of $500. |