STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY,)

)

Petitioner, )

)

vs. ) CASE NO. 92-2691

) BRENDA CUNNINGHAM d/b/a B. J. ) BEAUTY IMAGES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 16, 1992, in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles F. Tunnicliff

Bureau Chief

Department of Professional Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

For Respondent: Brenda Cunningham, pro se

1546 NE 4th Ave.

Fort Lauderdale, Florida 33305 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 April 11, 1992, Petitioner charged Respondent with violating Section 477.029(1)(b), Florida Statutes, by operating a cosmetology salon that was not duly licensed. 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 one witness: Leonard Baldwin, an investigator employed by Petitioner. Petitioner offered three exhibits into evidence, all of which were accepted without objection.

The Respondent testified on her own behalf and offered one exhibit into evidence, a license for the salon in question issued on May 27, 1992.

Respondent's Exhibit was accepted without objection.

No 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. No such proposals have been filed. In a letter dated June 19, 1992 and filed with the Division of Administrative Hearings on June 22, 1992, Respondent summarized her position in this case. That letter includes a mixture of argument and factual conclusions. Since specific findings of fact have not been submitted, no rulings are made with respect to this letter.

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 CE 0043033. Respondent has been continuously licensed since October, 1976. Since May of 1990, Respondent has also held a license as a cosmetology salon owner, license number 0052274, for a salon called B.J. Beauty Images located at 1556 NE 4th Ave. in Fort Lauderdale, Florida. The salon license is scheduled to expire on October 31, 1992.

   
   

2. Respondent began operating a salon at 1556 NE 4th Ave. in approximately March of 1990. She was previously operating a duly licensed salon at another location. At the time she moved to the 1556 NE 4th Ave. location, Respondent did not apply for a new salon license. During an inspection in March of 1990, an investigator for Petitioner informed Respondent that she needed to obtain a license for the new location. Petitioner's investigator advised Respondent that she needed to obtain a new license any time she moved her salon. No administrative action was taken against Respondent as a result of operating an unlicensed salon in March of 1990. During a follow up visit in May of 1990, Petitioner's investigator confirmed that Respondent had obtained the necessary salon license.

   
   

3. In January of 1992, Petitioner's investigator observed that Respondent's salon had apparently moved to 1546 NE 4th Ave.

   
   

4. Respondent's salon is generally open from 5:00 p.m. to 8:00 p.m. on Tuesday through Friday and 10:00 a.m. to 7:00 p.m. on Saturday. Petitioner's investigator was in the neighborhood of Respondent's salon on Friday, January 3 at approximately 2:30 p.m. While the salon was generally not open for business during these hours, Respondent was present at the salon located at 1546 and there was a woman under the hair dryer. In addition, Petitioner's investigator observed that the sign for Respondent's salon had moved from 1556 NE 4th Ave. to 1546 NE 4th Ave. Upon investigation, Petitioner's investigator determined that Respondent had not obtained a license for the 1546 NE 4th Ave. location.

   
   

5. The evidence was sufficient to establish that Respondent was operating a salon at 1546 NE 4th Ave. from November of 1991 until May of 1992 without a proper license.

6. Respondent contends that she sent in an application for a license for the 1546 NE 4th Ave. location in December of 1991, but had not received her new license at the time of the inspection in January of 1992.

   
   

7. Respondent did not present copies of any correspondence or checks written with respect to the alleged December 1991 application. At the time of the January 1992 inspection, Respondent did not advise Petitioner's inspector that she had submitted an application. Petitioner has no record of an application for a license for the 1556 NE 4th Ave. location until May of 1992. A salon license for this location was issued by Petitioner on May 27, 1992. The evidence was insufficient to establish that Respondent submitted an application in December of 1991 which was lost by Petitioner.

   
   

   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. Section 477.0265(1)(b) makes it unlawful for any person to operate a cosmetology salon which is not duly licensed pursuant to Chapter 477. Any person who violates this provision 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.

    
    

11. The evidence in this case clearly established that the Respondent is guilty of violating Section 477.029(1)(b), Florida Statutes, by operating a cosmetology salon from November of 1991 until May of 1992 which had not been duly licensed.

    
    

12. Respondent's contention that she had started the process for obtaining licensure for the new location in December of 1991 was not supported by the weight of the evidence.

    
    

13. Pursuant to Rule 21F-30.001(2)(b), Florida Administrative Code, the recommended penalty for the foregoing violation is an administrative fine of fifty dollars ($50) for each month the salon was unlicensed. 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 sixteen years. There is no evidence of any prior complaints against Respondent. In view of these factors, it is recommended that the Board impose an administrative fine of two 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 477.029(1)(b), Florida Statutes

imposing an administrative fine of two hundred dollars ($200) and allowing the Respondent to pay this amount in two (2) payments.

DONE and ENTERED this 22nd day of July, 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 22nd day of July, 1992.

Copies furnished:

Charles F. Tunnicliff, Bureau Chief Department of Professional

Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Ms. Kaye Howerton, Executive Director Department of Professional

Regulation/Board of Cosmetology 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Brenda Cunningham 1546 NE 4th Ave.

Fort Lauderdale, Florida 33305

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: 92-002691

Orders for Case No: 92-002691