STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0026

)

)

KETTLY GUILBAUD, d/b/a )

WONDERFUL HAIRWEAVING #2, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on June 1, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Roberta Fenner, Esquire

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Kettly Guilbaud, pro se

1439 Northeast 4th Avenue

Fort Lauderdale, Florida 33304 STATEMENT OF THE ISSUES

The issue is whether Ms. Guilbaud is subject to discipline for operating a beauty salon with persons who were unlicensed, and for failure to meet standards established by rule for sanitation at the salon.

PRELIMINARY STATEMENT

This matter was heard by telephone conference call. The Department presented the testimony of its investigator, Leonard Baldwin, and the Respondent, Ms. Guilbaud, testified on her own behalf. No transcript was filed. Ms. Guilbaud filed a statement of her position after the hearing.

FINDINGS OF FACT

1. On March 6, 1991, Mr. Leonard Baldwin, an inspector for the Department of Professional Regulation, inspected the salon known as Wonderful Hairweaving

   #2, located at 1439 Northeast 4th Avenue, Fort Lauderdale, Florida 33304. At the time he entered, the owner of the establishment, Kettly Guilbaud, was not present.

   
   

2. Mr. Baldwin found two persons working at the salon; one person, a lady who identified herself as Rachel Guillaume, was placing chemicals on the hair of a patron as part of giving a permanent to the patron. The gentleman, who identified himself as St. Armond Iout, was cutting the hair of another patron. Both acknowledged that they had no license from the Department of Professional Regulation to perform cosmetology.

   
   

3. Ms. Rachel Guillaume stated that she had only been at the salon for two days and was just there to help out a friend. It is not clear whether this was meant to mean that she was helping Ms. Guilbaud, the owner of the shop, or the person whose hair was being permed. It is more likely that she meant that she was helping Ms. Guilbaud. See Finding 6, below.

   
   

4. Mr. Baldwin was not able determine how long Mr. Iout had been working there because of Mr. Iout's great difficulty with English. A customer translated for Mr. Iout, who told Mr. Baldwin through the customer that although he was cutting a man's hair, he did not work there. This is not believable.

   
   

5. Mr. Baldwin also found sanitation violations at the salon, in that the implements available for use had not been sanitized, and they were kept in a drawer which was not clean. The sanitation rules were not displayed at the shop.

   
   

6. Ms. Guilbaud testified that Rachel Guillaume was there only to answer the telephone and to make appointments for customers who would either call or come to the shop. Ms. Guilbaud was away at another location which she was preparing to open as an additional salon. She also testified that St. Armond Iout was there because the electrical inspector from the City of Fort Lauderdale was to come to the salon to look at some electrical wiring and that Mr. Iout was there only to meet the inspector. In view of Mr. Iout's very limited fluency in English this is unlikely, for he could have been no assistance to the electrical inspector. Rachel Guillaume could have admitted the inspector to the shop.

   
   

7. I find the testimony of Mr. Baldwin persuasive, that both Ms. Guillaume and Mr. Iout were either perming or cutting hair. Neither were at the salon for the limited purposes described by Ms. Guilbaud. I accept Ms. Guilbaud's testimony that both Ms. Guillaume and Mr. Iout are not fluent in English, but Mr. Baldwin has not been confused by difficulties in understanding either Ms. Guillaume or Mr. Iout. What is significant is what Mr. Baldwin observed, not what Ms. Guillaume or Mr. Iout tried to explain to him.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1991).

   
   

9. Ms. Guilbaud allowed Ms. Guillaume and Mr. Iout to perform acts for which they should have been licensed under Chapter 477, Florida Statutes, i.e. to provide permanents or to cut hair, but neither of those individuals were licensed. Ms. Guilbaud is therefore guilty of employment of an unlicensed individual in the practice of cosmetology. See Section 477.029(1)(c), Florida Statutes (1991).

10. The rules of the Board of Cosmetology also require that implements be sanitized after use on each patron, Rule 21F-20.002(2)(c), Florida Administrative Code, that all equipment be free of hair, cleansed and sanitized, Rule 21F-20.002(2)(d)2.a., Florida Administrative Code, and that all cleansed, sanitized equipment be stored in cleaned closed cabinets or containers, Rule

    21F-20.002(2)(e), Florida Administrative Code. Salons are also required to conspicuously display the current sanitation rules. Rule 21F-20.004(4), Florida Administrative Code. The violation of these rules constitutes a violation of Section 477.029(1)(i), Florida Statutes (1991).

    
    

11. The disciplinary guidelines of the Board of Cosmetology are found in Chapter 21F-30, Florida Administrative Code. According to those guidelines, a shop owner is subject to a penalty of $500 for employing a person to practice cosmetology who is not duly licensed or registered. Rule 21F-30.001(1)(c)1., Florida Administrative Code.

    
    

12. For failure to display a copy of the sanitation rules, which is required of salons by Rule 21F-20.004(4), Florida Administrative Code, the penalty is $50. Rule 21F-30.004(3)(a), Florida Administrative Code.

    
    

13. The failure to have sanitized and properly stored the instruments used at the salon as alleged in the complaint are essentially multiple characterizations of the same facts, for which only a single penalty should be imposed. The appropriate penalty, under the Board's guidelines, is an additional fine of $50. Rule 21F-30.001(1)(j), Florida Administrative Code. Thus, in total, a fine of $600 should be imposed.

RECOMMENDATION

It is RECOMMENDED, based upon the foregoing findings of fact and conclusions of law, that a final order be entered by the Board of Cosmetology finding Kettly Guilbaud, doing business as Wonderful Hairweaving #2, to be guilty of the acts alleged in Counts I and II of the Administrative Complaint, and that a fine of $600 be imposed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June 1992.

WILLIAM R. DORSEY, JR.

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 19th day of June 1992.

Copies furnished:

Roberta Fenner, Esquire Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kettly Guilbaud, pro se 1439 Northeast 4th Avenue

Fort Lauderdale, Florida 33304

Ms. Kaye Howerton Executive Director Board of Cosmetology

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

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: 92-000026

Orders for Case No: 92-000026