STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2702

)

KIM RAFFAELLI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 20, 1991, in Fort Lauderdale, Florida, before Stuart M. Lerner, 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: No appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the Administrative Complaint?

   
   

2. If so, what penalty should be imposed?

   
   

   PRELIMINARY STATEMENT

   
   

   On October 15, 1990, the Department of Professional Regulation (Department) issued an Administrative Complaint against Respondent, the body of which read as follows:

   
   

   1. Petitioner, Department of Professional Regulation, is the State agency charged with regulating the practice of cosmetology pursuant to Section 20.30, Florida Statutes,

      Chapter 455, Florida Statutes, and Chapter 477, Florida Statutes.

      
      

   2. Respondent is licensed to practice cosmetology in the State of Florida, having been issued license number CL 0120572.

      Respondent, at all time material hereto, has been an employee of a cosmetology salon named Salon D'Angelo and located at 4623 North University Drive, Coral Springs, Florida 33065.

      
      

   3. Inspections on or about August 8, 1990 and August 17, 1990 of Salon D'Angelo by an inspector for the Petitioner revealed that Respondent had not met the sanitation standards required by law and that the Respondent had not kept said requirements in full force in that

      
      

      1. Implements not being sanitized after each use on each patron (Rule 21F-20.002(4)(c))

         
         

      2. All equipment not free of hair, cleansed, or sanitized (Rule 21F-20.002(4)(d)(2)(a-d))

         
         

      3. Equipment and drawers not clean and sanitary (Rule 21F-20.002(4)(e))

      
      

   4. Based upon the foregoing allegations, Respondent is guilty of violating the provisions of Rule 21F-20.002, Florida Administrative Code. This in turn constitutes the violation of Sections 477.0265(1)(c), Florida Statutes (1989), and Section 477.029(1)(i), Florida Statutes (1989), as the violation of a rule of the Board of Cosmetology.

Respondent denied the allegations of wrongdoing advanced in the complaint and requested a formal hearing. On April 30, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Respondent had requested.

At hearing, the Department presented the testimony of one witness, Lewis Morganstern, one of its inspectors. In addition to presenting Morganstern's testimony, the Department offered two exhibits into evidence, both of which were admitted by the Hearing Officer. Although she had been given notice of the hearing in accordance with Section 120.57(1)(b)2, Florida Statutes, Respondent did not make an appearance, either in person or through an attorney or other qualified representative. As a result, no evidence was presented on her behalf.

At the close of the evidentiary portion of the hearing on August 20, 1991, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than ten days following the conclusion of the hearing. On September 3, 1991, Petitioner gave written "notification" that it was "waiving its right to submit a Proposed Recommended Order" in this case. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Respondent is now, and has been since September 10, 1980, licensed to practice cosmetology in the State of Florida. Her current license expires June 30, 1992.

   
   

2. At all times material hereto, including August 8 and 17, 1990, Respondent has been an employee of the Salon D'Angelo, a cosmetology salon located in Coral Springs, Florida.

   
   

3. Lewis Morganstern is an inspector with the Department.

   
   

4. On August 8, 1990, Morganstern conducted an inspection of the Salon D'Angelo, including Respondent's work station. During his inspection, Morganstern observed that (a) Respondent did not remove hair from combs and brushes before using them on the next patron; (b) the barbacide Respondent used to sanitize her combs and brushes had hair floating in it; and (c) the drawer in which Respondent stored her combs and brushes also contained her personal belongings.

   
   

5. Morganstern warned that these practices were unlawful and therefore should cease. Upon leaving, he advised that he would return to conduct a follow-up inspection.

   
   

6. As promised, Morganstern returned to the salon on August 17, 1990. He found the same violations that he had observed during his initial inspection nine days earlier.

   
   

   CONCLUSIONS OF LAW

   
   

7. The provisions of the Florida Cosmetology Act, which are found in Chapter 477, Florida Statutes, impose certain restrictions upon the practice of cosmetology in this state.

   
   

8. "Cosmetology," as that term is used in Chapter 477, Florida Statutes, "means the mechanical or chemical treatment of the head, face, and scalp for aesthetic rather than medical purposes, including, but not limited to, hair shampooing, hair cutting, hair arranging, hair coloring, permanent waving, hair relaxing, hair removing, pedicuring, and manicuring, for compensation." Section 477.013(4), Fla. Stat.

   
   

9. A "salon," as that term is used in Chapter 477, Florida Statutes, is any establishment or place of business where "cosmetology," as defined in Section 477.013(4), Florida Statutes, is practiced. Fla. Admin. Code Rule 21F- 20.001.

   
   

10. Section 477.0265(1)(c), Florida Statutes, provides in pertinent part as follows:

    
    

    It is unlawful for any person to:

    * * *

    Engage in willful or repeated violations of

    . . . any rule adopted by the [B]oard [of Cosmetology].

11. Section 477.029, Florida Statutes, provides in pertinent part as follows:

    
    

    1. It is unlawful for any person to:

       * * *

       (i) Violate or refuse to comply with any provision of this chapter or . . . a rule

       . . . of the [B]oard [of Cosmetology] . . .

       
       

       * * *

       
       

    2. Any person who violates the provisions of this section shall be subject to one or more of the following penalties, as determined by the [B]oard [of Cosmetology]:

       
       

       1. Revocation or suspension of any license or registration issued pursuant to this chapter.

          
          

       2. Issuance of a reprimand or censure.

          
          

       3. Imposition of an administrative fine not to exceed $500 for each count or separate offense.

          
          

       4. Placement on probation for a period of time and subject to such reasonable conditions as the [B]oard [of Cosmetology] may specify.

          
          

       5. Refusal to certify to the [D]epartment [of Professional Regulation an applicant for licensure.

          
          

12. Among the rules of the Board of Cosmetology is Florida Administrative Code Rule 21F-20.002. It provides in pertinent part as follows:

    * * *

    
    

    (4) The following procedures shall be followed in salons utilizing the materials or instruments used below:

    * * *

    1. Sterilization and Sanitation: The use of a brush, comb or other article on more than one patron without being sanitized is prohibited. . . .

       
       

    2. Sanitizers. . . .

       
       

       1. Sanitizing methods which are effective and approved for salons: First, clean articles with soap and water, completely immerse in a chemical solution as follows:

          
          

          1. Combs and brushes, remove hair first and immerse in 10% formalin;

          2. Metallic instrument, immerse in 25% formalin;

             
             

          3. Instruments with cutting edge, wipe with 70% alcohol; or

             
             

          4. Implements may be immersed in a Quaternary Ammonium Compound Solution.

       
       

    3. After cleansing and sanitizing, articles shall be stored in a clean, closed cabinet or container until used. Unsanitized articles, such as pens, pencils, money, paper, mail, etc. shall not be kept in the same container or cabinet.

    
    

13. The Administrative Complaint issued in the instant case alleges that, on August 8, 1990, and again on August 17, 1990, Respondent violated the foregoing provisions of Florida Administrative Code 21F-20.002 and therefore was also in violation of the provisions of Section 477.0265(1)(c), Florida Statutes, and Section 477.029(1)(i), Florida Statutes. The evidence presented at hearing establishes Respondent's guilt of these alleged violations. Accordingly, Respondent is subject to one or more of the penalties set forth in Section 477.029(2), Florida Statutes.

    
    

14. In determining what penalty or penalties should be imposed upon Respondent, it is necessary to consult Florida Administrative Code Rule 21F- 30.001, which contains the Board of Cosmetology's disciplinary guidelines. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

15. Florida Administrative Code Rule 21F-30.001 provides 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 disciplinary guidelines.

       
       

       * * *

       
       

       (j) Violating the safety and sanitary requirements of Section 21F-20.002(3)-(7),

       F.A.C. The usual recommended penalty shall be an administrative fine of $50 per violation if less than three violations are found to have occurred, or an administrative fine of $250 if three or more violations are found to have occurred, or an administrative fine of $500 if five or more violations are found to have occurred at the time of this violation.

       * * *

       
       

       (4) 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 offenses;

          
          

       4. the length of time since date of violation;

          
          

       5. the number of complaints filed against the licensee;

          
          

       6. the length of time 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 upon the licensee's or registrant's livelihood;

          
          

       10. any efforts for rehabilitation;

           
           

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

           
           

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

           
           

       13. related violations against a licensee or registrant in another state including findings of guilt or innocence, penalties imposed and penalties served;

           
           

       14. actual negligence of the licensee or registrant pertaining to any violations;

           
           

       15. penalties imposed for related offenses under Subsection (1) above;

           
           

       16. any other mitigating or aggravating circumstances.

       
       

16. Having considered the facts of the instant case in light of the foregoing provisions of Florida Administrative Code Rule 21F-30.001, the Hearing

Officer finds that an administrative fine in the amount of $250.00 is the appropriate penalty to impose upon Respondent for having committed the violations charged in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Cosmetology enter a final order (1) finding that Respondent committed the violations of law alleged in the instant Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $250.00 for having committed these violations.

RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of September, 1991.

STUART M. LERNER

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 6th day of September, 1991.

COPIES FURNISHED:

Tracey S. Hartman, Esquire

Mark Harris, Qualified Representative Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Kim Raffaelli Salon D'Angelo

4623 North University Drive Coral Springs, Florida 33065

Myrtle Aase, Executive Director Board of Cosmetology

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 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 OF TIME 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: 91-002702

Orders for Case No: 91-002702