STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2399

)

MYRLIFLORE DEJEAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 9, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Roberta L. Fenner, Esquire

Department of Professional Regulation Northwood Centre,Suite 60

1940 N. Monroe St.

Tallahassee, Florida 32399-0792

For Respondent: Myrliflore DeJean, pro se

730 N.E. Hallandale Beach Boulevard Hallandale, Florida 33009

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

Respondent is a cosmetologist licensed by Petitioner. At the times pertinent to this proceeding, Respondent was an owner and operator of Myrliflore Hair and Nail Design, which is a beauty salon. Her first location of this establishment was at 2471 Pembroke Road, Hollywood, Florida. She later closed the shop on Pembroke Road and reopened her shop at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. Petitioner filed a two-count administrative complaint against Respondent that contained certain factual allegations. Count I of the Administrative Complaint charged Respondent with having operated her first location without the necessary license having been issued by Petitioner.

Count II charged Respondent with failure to meet certain sanitation standards in the operation of her shop at the second location.

Respondent disputed the allegations of the Administrative Complaint, and this proceeding followed. At the formal hearing, Petitioner presented the

testimony of one witness, Leonard Baldwin, an investigator employed by Petitioner, and introduced two exhibits. Respondent and her husband testified on behalf of Respondent, and Respondent presented one exhibit. All exhibits offered by the parties were accepted into evidence.

A transcript of the proceedings has been filed. Neither party filed a post-hearing submittal.

FINDINGS OF FACT

1. At the times pertinent to this proceeding, Respondent was an owner and operator of Myrliflore Hair and Nail Design, which is a beauty salon. Her first location of this establishment was at 2471 Pembroke Road, Hollywood, Florida. She later closed the shop on Pembroke Road and reopened her shop at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. At the time of the formal hearing, Respondent was operating her beauty salon at the Hallandale location.

   
   

2. On September 8, 1990, and on February 13, 1991, Leonard Baldwin, an inspector for the Department of Professional Regulation inspected Respondent's shop at 2471 Pembroke Road, Hollywood. Respondent's shop was open for business and was doing business at the time of Mr. Baldwin's visits. Respondent had failed to obtain a license for her beauty salon from Petitioner prior to engaging in business.

   
   

3. Respondent does not dispute that she operated her beauty salon in Hollywood without a license for the shop. Respondent testified that she had not secured a salon license for her location in Hollywood because she had only recently come to the United States from Haiti and she had not known that a license was required.

   
   

4. Between February 13, 1991, and March 22, 1991, Respondent closed her beauty salon located at 2471 Pembroke Road, Hollywood, and reopened her beauty salon at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. On March 22, 1991, Mr. Baldwin inspected Respondent's beauty salon at the Hallandale address and found several violations of sanitation standards that had been established by rule. At the time of Mr. Baldwin's inspection, the implements for the nail station did not appear to have been sanitized, the equipment on the hair dresser's station was not clean and sanitized, instruments stored in a closed cabinet were not clean and sanitized, and the sanitation rules were not displayed.

   
   

5. Respondent denied that her shop failed to meet sanitation standards as related by Mr. Baldwin. The conflict in the testimony is resolved by finding that the greater weight of the evidence establishes the sanitation violations to which Mr. Baldwin testified. It is found that on March 22, 1991, the implements for the nail station had not been sanitized, the equipment on the hair dresser's station was not clean or sanitized, instruments stored in a closed cabinet were not clean or sanitized, and the sanitation rules were not displayed.

   
   

6. Respondent promptly corrected all sanitation deficiencies noted by Mr. Baldwin following the inspection of March 22, 1991.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Section 477.029(1), Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. It is unlawful for any person to:

      * * *

      (b) Operate any cosmetology salon unless it has been duly licensed as provided in this chapter.

      * * *

      (i) Violate or refuse to comply with any provision of this chapter of chapter 455 or a rule or final order of the board or the department.

      
      

9. Rule 21F-20.002(2)(c), Florida Administrative Code, requires that implements be sanitized after use on each patron.

   
   

10. Rule 21F-20.002(2)(d)2.a., Florida Administrative Code, requires that all equipment be free of hair, cleansed, and sanitized.

    
    

11. Rule 21F-20.002(e), Florida Administrative Code, requires that all cleansed, sanitized equipment be stored in cleaned, closed cabinets or containers.

    
    

12. Rule 21F-20.004(4), Florida Administrative Code, requires that current sanitation rules be conspicuously posted.

    
    

13. Petitioner has established that Respondent has, as alleged in the Administrative Complaint, violated the provisions of Section 477.029(1), Florida Statutes, by failing to have a license for the beauty salon in Hollywood. Petitioner has also established that Respondent violated sanitation standards established by the Board of Cosmetology found in the following rules: Rules

    21F-20.002(2)(c); 21F-20.002(2)(d)2.a.; 21F-20.002(e), and 21F-20.004(4),

    Florida Administrative Code.

    
    

14. The pertinent disciplinary guidelines of the Board of Cosmetology are found in Chapter 21F-30, Florida Administrative Code. The amount of the fine contained in the recommendation that follows is consistent with the guidelines set forth therein. For the violation based on the charges alleged in Count I, Respondent should be fined the amount of $500.00. For the violations based on the charges alleged in Count II, Respondent should be fined the amount of

$250.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered a Final Order be entered that

finds the Respondent guilty of the violations alleged in Counts I and II of the Administrative Complaint and which assesses against Respondent an administrative fine in the amount of $750.00.

DONE AND ORDERED this 29th day of July, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 29th day of July, 1992.

Copies furnished:

Jack McRay, General Counsel Department of Professional

Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kaye Howerton, Executive Director Board of Cosmetology

Department of Professional Regulation

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Roberta L. Fenner, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

Suite 60

1940 N. Monroe St.

Tallahassee, Florida 32399-0792

Myrliflore DeJean, pro se

730 N.E. Hallandale Beach Boulevard Hallandale, Florida 33009

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: 92-002399

Orders for Case No: 92-002399