STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3388

)

GLORIA TORRES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 5, 1992, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Professional Regulation

401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Gloria Torres, pro se

3943 N.W. 87th Avenue Sunrise, Florida 33351

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 January 13, 1992, the Department of Professional Regulation (Department) issued a two count Administrative Complaint against Respondent. In Count I of the Administrative Complaint, Respondent was charged with engaging in "the practice of cosmetology without a current active cosmetology license," in violation of Section 477.029(1)(a), Florida Statutes. In Count II, Respondent was charged with "presenting as [her] own the license of another and/or [im]personating any other licenseholder of like or different name," in violation of Section 477.029(1)(d) and (f), Florida Statutes. Respondent denied the allegations of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On June 3, 1992, the matter was referred to the Division of

Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Respondent had requested.

Two witnesses testified at the final hearing held in this case. They were Leonard Baldwin, an inspector with the Department of Professional Regulation, and Respondent. In addition to their testimony, six exhibits were offered and received into evidence.

By order issued August 13, 1992, the Hearing Officer notified the parties that the deadline for the filing of post-hearing submittals was August 21, 1992. To date, neither party has filed a post-hearing submittal.

FINDINGS OF FACT

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

1. On October 26, 1991, Respondent was employed as a nail technician/manicurist at Tropical Nails and Skin (Tropical), a cosmetology salon located in Lauderhill, Florida. At the time, she did not hold a license authorizing her to engage in the practice of cosmetology, or any specialty area thereof, in the State of Florida.

   
   

2. Leonard Baldwin is an inspector with the Department of Professional Regulation.

   
   

3. On the morning of October 26, 1991, Baldwin conducted an inspection of Tropical. Upon entering the salon, Baldwin observed Respondent at her station applying polish to a customer's nails.

   
   

4. Prominently displayed at Respondent's station was a cosmetology license that bore Respondent's name and photograph. The license was forged and actually belonged, not to Respondent, but to E. Sgroi. It had been given to Respondent by a former coworker, who had altered the license by removing Sgroi's name and typing Respondent's name in its place. Respondent had affixed her photograph to the license after the license was given to her. No changes had been made to the address on the license.

   
   

5. Shortly after entering the salon, Baldwin went to Respondent's station. He examined the license and asked Respondent if it was hers. She replied in the affirmative. Baldwin suspected otherwise. He therefore took possession of the license. He then left Respondent's station and went to another area of the salon.

   
   

6. Approximately ten or fifteen minutes later, after Respondent had finished with her customer and the customer had paid and left the salon, Baldwin again approached Respondent and asked her about the license. This time Respondent acknowledged that the license was not really hers and that she was not licensed by the Department to practice cosmetology.

   
   

7. Baldwin then presented to Respondent a Cease and Desist Agreement, which Respondent signed. The agreement, which was also signed by Baldwin, provided as follows:

   
   

   I, Gloria Torres, have been informed by a representative of the Department of Professional Regulation that I am under investigation on allegations that I have

   engaged in the practice of "Nails" Cosmetology without being a holder of an appropriate license or permit.

   
   

   Without admitting these allegations, I hereby agree to cease and desist from engaging in this activity until and unless properly licensed or permitted. I execute this agreement without receiving any representations in regard to the final disposition of the investigation.

   
   

8. Respondent abided by the terms of the Cease and Desist Agreement.

   
   

9. She enrolled in classes at the Academy of Beauty Arts and Sciences in Fort Lauderdale, Florida. On or about November 7, 1991, the school issued her a certificate of completion in the speciality area of manicuring/pedicuring/nail extensions.

   
   

10. On December 11, 1991, Respondent was licensed by the Board of Cosmetology to practice in this specialty area. She still holds this license.

    
    

11. Respondent is presently in a precarious financial situation. She has recently had to bear the cost of her husband's funeral. In addition, she has had other expenses that have depleted her financial resources.

    
    

    CONCLUSIONS OF LAW

    
    

12. 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.

    
    

13. "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.

    
    

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

    
    

    1. It is unlawful for any person to:

       
       

       (a) Hold himself out as a cosmetologist or specialist unless duly licensed or registered as provided in this chapter.

       
       

       * * *

       
       

       (d) Present as his own the license of another.

       
       

       * * *

       
       

       (f) Impersonate any other licenseholder of like or different name.

       * * *

       
       

    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 board may specify.

          
          

       5. Refusal to certify to the department an applicant for licensure

          
          

15. The Administrative Complaint issued in the instant case alleges that, on October 26, 1991, Respondent engaged in conduct in violation of the foregoing provisions of Section 477.029(1), Florida Statutes.

    
    

16. Respondent's actions on October 26, 1991, did not constitute a violation of Section 477.029(1)(f), Florida Statutes. This statutory provision prohibits a licenseholder from impersonating "any other licenseholder." Respondent was not a licenseholder on October 26, 1991. She therefore could not have violated Section 477.029(1)(f), Florida Statutes, on that date.

    
    

17. The record evidence, however, does clearly and convincingly establish that Respondent violated Section 477.029(1)(a) and (d), Florida Statutes, as alleged in the Administrative Complaint. Accordingly, Respondent is subject to one or more of the penalties set forth in Section 477.029(2), Florida Statutes.

    
    

18. In determining what penalty should be imposed upon Respondent, it is necessary to consult Rule 21F-30.001, Florida Administrative Code, 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).

    
    

19. Rule 21F-30.001, Florida Administrative Code, 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.

       1. Holding oneself out as a cosmetologist or specialist unless duly licensed or registered as provided in Chapter 477, Florida Statutes. The usual recommended penalty shall be:

          
          

          1. For an individual who has never been licensed in Florida, an administrative fine of $500.00;

          
          

          * * *

          
          

          (d) Presenting as one's own the license or registration of another. The usual recommended penalty shall be an administrative fine of $500 and a reprimand.

          
          

          * * *

          
          

          (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.

          
          

20. Having considered the facts of the instant case in light of the foregoing provisions of Rule 21F-30.001, Florida Administrative Code, the Hearing Officer concludes that, for having violated Section 477.029(1)(a) and (d), Florida Statutes, as charged in the instant Administrative Complaint, Respondent should be fined a total of $500.00 ($250.00 for each violation), 1/ to be paid in monthly installments of $25.00 the first four months and $50.00 the next eight months.

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 did not violate Section 477.029(1)(f), Florida Statutes, as alleged in the instant Administrative Complaint; (2) dismissing this charge;

(3) finding that Respondent violated Section 477.029(1)(a) and (d), Florida Statutes, as alleged in the instant Administrative Complaint; and (4) imposing upon Respondent, for having committed these violations, an administrative fine in the amount of $500.00 ($250.00 for each violation), to be paid in monthly installments of $25.00 the first four months and $50.00 the next eight months.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24 day of August, 1992.

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 24 day of August, 1992.

ENDNOTES

1/ Respondent's cooperation during the latter part of Baldwin's inspection, her exemplary conduct since the inspection and her present, shaky financial situation are mitigating circumstances that justify the imposition of a penalty less severe than the "usual recommended" penalty prescribed in subsection (1) of Rule 21F-30.001, Florida Administrative Code, for these violations.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Professional Regulation

401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128

Ms. Gloria Torres 7387 N.W. 76th Street

Tamarac, Florida 33321

Ms. Gloria Torres 3943 N.W. 87th Avenue

Sunrise, Florida 33351

Ms. Kaye Howerton, 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: 92-003388

Orders for Case No: 92-003388