STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6562

) REBECCA B. RILEY d/b/a THE HAIR ) AND NAIL SALON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 28, 1992, in Vero Beach, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Renee Alsobrook, Senior Attorney

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Steven Lulich, Esquire

P. O. Box 1390 Sebastian, Florida 32978

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's licenses as a cosmetologist and cosmetology salon owner in the State of Florida, should be suspended, revoked or otherwise disciplined for the alleged violations of Chapter 477, Florida Statutes, set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

In a one count Administrative Complaint dated November 29, 1990, Petitioner charged Respondent with violating Sections 477.0265(1)(b)2, 477.0265(1)(d), 477.029(1)(c) and 477.029(1)(h), Florida Statutes, by employing an unlicensed person in the practice of cosmetology. Respondent disputed the allegations and requested a formal hearing pursuant to Section 120.57, Florida Statutes. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, Petitioner called two witnesses: Daryl Fruth, an investigator employed by Petitioner, and Veronica Bonani. Petitioner offered seven exhibits into evidence, all of which were accepted without objection.

The Respondent presented the testimony of Rudy Olski and also testified on her own behalf. The Respondent offered one exhibit into evidence, an inspection report dated February 22, 1990, which was accepted without objection.

A transcript of the proceedings has been filed. At the conclusion of the hearing, both parties were advised of their right to file proposed findings of fact and conclusions of law. Only Petitioner has filed such 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. The Respondent is a licensed cosmetologist in the State of Florida, holding license number CL 141038. From April 13, 1987 until October 31, 1990, Respondent also held a license as a cosmetology salon owner, license number CE 0044081. The salon license expired on October 31, 1990 and was not renewed for the 1990-1992 period because the check submitted for payment of the renewal fee was dishonored by the bank for insufficient funds.

   
   

2. This case is related to a separate administrative proceeding brought against Veronica Bonani, DPR Case Number 90-4671. In that case, Ms. Bonani was found by the Florida Board of Cosmetology to have been employed by the Respondent as a cosmetologist without a Florida license from January 3, 1990 to March, 1990. After conceding the allegations in that case, Ms. Bonani was fined one hundred dollars ($100). Petitioner has suggested that the complaint against Veronica Bonani was initiated by Respondent, apparently in retribution for Ms. Bonani's terminating her employment with Respondent to take another job. At the hearing in this cause, the Respondent denied that she reported Ms. Bonani to the Department. While this dispute has little bearing on the main issues in this proceeding, the more persuasive evidence was that Respondent reported Ms. Bonani to Petitioner after Ms. Bonani left her employment.

   
   

3. The evidence established that the Respondent employed Veronica Bonani as a cosmetologist without a Florida license from January 3, 1990 to March, 1990.

   
   

4. Veronica Bonani began seeking licensure by endorsement in Florida sometime in the Fall of 1989. Because of some problems in obtaining the necessary documentation, she experienced delays in obtaining a license. Her formal application for licensure in Florida is dated February 6, 1990 and was filed with Petitioner on February 15, 1990.

   
   

5. Veronica Bonani did not receive authorization to practice as a cosmetologist in Florida until April 13, 1990. However, as indicated above, Ms. Bonani began working for Respondent in early January, 1990. Prior to beginning work for Respondent, Ms. Bonani advised Respondent that she was in the process of obtaining a Florida license, but was not yet licensed to practice cosmetology in the State of Florida. Respondent encouraged her to begin work anyway.

   
   

6. When an inspector employed by Petitioner entered the Respondent's salon on February 22, 1990, the Respondent instructed Ms. Bonani to hide. However, Ms. Bonani openly revealed her status to the inspector. The inspector indicated

   during his February 22, 1990 visit that there was no problem with Ms. Bonani's employment since her application was pending and approval seemed imminent. This conclusion was erroneous.

   
   

7. Respondent contends that she believed Ms. Bonani was entitled to begin work in Florida since she was in the process of obtaining licensure. However, there was no justifiable basis for Respondent to believe it was legal to employ Ms. Bonani in January, 1990. Indeed, the evidence and circumstances in this case indicate that Respondent was well aware that Ms. Bonani should not have been practicing prior to issuance of her Florida license.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

   
   

9. Petitioner has the burden of proving the alleged violations in the Administrative Complaint by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)...... .....

   
   

10. Pursuant to Section 477.028(c), Florida Statutes, Petitioner is authorized to suspend or revoke the license or otherwise discipline a cosmetologist licensed pursuant to Chapter 477 upon proof that the licensee is guilty of aiding, assisting, procuring or advising any unlicensed person to practice as a cosmetologist.

    
    

11. Sections 477.0265(1)(b)(2) and 477.0265(1)(d) make it unlawful for any person to own, operate or have charge of a cosmetology salon in which a person not licensed as a cosmetologist is permitted to perform cosmetology services. See also, Sections 477.029(1)(c) and (h). Any person who violates these provisions is subject to the penalties set forth in Section 477.029(2), Florida Statutes, including revocation or suspension of licensure, reprimand or censure, imposition of an Administrative fine not to exceed $500 per count and/or probation.

    
    

12. The evidence in this case clearly established that the Respondent is guilty of violating subsections 477.0265(1)(b)2, 477.0265(1)(d), 477.029(1)(c) and 477.029(1)(h), Florida Statutes, by employing Veronica Bonani to practice cosmetology before she had a valid Florida license.

    
    

13. Clearly, the Respondent should have verified that Ms. Bonani held a valid, active license prior to employing her as a cosmetologist. Ms. Bonani's status as a valid license holder in another State who was in the process of obtaining licensure in Florida is a mitigating factor to consider. However, in this case it appears that Respondent actively encouraged the violation and did not report it until Ms. Bonani left her employ.

    
    

14. Pursuant to Rule 21F-30.001 and 21F-30.004(6), Florida Administrative Code, the recommended penalty for the foregoing violation is an administrative fine of five-hundred dollars ($500). However, in imposing a penalty, the Board is entitled to consider the length of time the licensee has practiced, the number of complaints filed against the licensee and other mitigating circumstances. In this case, Respondent has been licensed for approximately nine years. There is no evidence of any prior complaints against Respondent and the employee in question was licensed in another state. In view of these

factors, it is recommended that the Board impose an administrative fine of three hundred dollars.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Cosmetology enter a Final Order

finding Respondent guilty of violating Sections 477.0265(1)(b)(2),

477.0265(1)(d), 477.029(1)(c) and 477.029(1)(h), Florida Statutes, imposing an administrative fine of three hundred dollars ($300) and allowing the Respondent to pay this amount in three (3) payments.

DONE and ENTERED this 18th day of March, 1992, 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 18th day of March, 1992.

APPENDIX TO RECOMMENDED ORDER

Only Petitioner submitted proposed findings of fact. The following constitutes my rulings on those proposals.

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. Subordinate to Findings of Fact 1.

   
   

2. Subordinate to Findings of Fact 2.

   
   

3. Subordinate to Findings of Fact 3 and 4.

   
   

4. Subordinate to Findings of Fact 4, 5, 6 and 7.

Copies furnished:

Renee Alsobrook, Senior Attorney Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Steven Lulich

P.O. Box 1390

Sebastian, Florida 32978

Jack McRay, General Counsel Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kaye Howerton, Executive Director Department of Professional

Regulation/Board of Cosmetology Northwood Centre, Suite 60

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: 91-006562

Orders for Case No: 91-006562