STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3771

)

MARIE JEANTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 3, 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 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Marie Jeanty, pro se

24 West Sunrise Boulevard

Fort Lauderdale, Florida 33311 STATEMENT OF THE ISSUES

1. Whether Respondent committed the offense described in the Administrative Complaint?

   
   

2. If so, what penalty should be imposed?

PRELIMINARY STATEMENT

On June 12, 1992, the Department of Professional Regulation (Department) issued an Administrative Complaint against Respondent charging her with allowing an unlicensed employee, Nancy Victor, to practice cosmetology in her salon in violation of Section 477.029(1)(c), Florida Statutes. 1/ Respondent denied the allegation of wrongdoing advanced in the Administrative Complaint and requested a formal hearing. On June 24, 1992, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Respondent had requested.

Two witnesses testified at the final hearing held in this case: Leonard Baldwin, an inspector with the Department; and Respondent. In addition to their testimony, four exhibits were offered and received into evidence. At the

conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties of their opportunity to file post-hearing submittals. Both parties indicated that they intended to rely on their presentations at hearing and would not be filing any post-hearing submittals.

FINDINGS OF FACT

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

1. Respondent is now, and has been at all times material to the instant case, a State of Florida-licensed cosmetologist (license number CL 0127356) and the owner and operator of Marie's Beauty Salon, a State of Florida-licensed cosmetology salon (license number CE 0040980) located in Fort Lauderdale.

   
   

2. Leonard Baldwin is an inspector with the Department.

   
   

3. Baldwin has conducted various inspections of Marie's Beauty Salon. His last inspection was conducted on April 24, 1992. 2/

   
   

4. Nancy Victor is not now, nor has she ever been, licensed to practice cosmetology, or any specialty area thereof, in the State of Florida.

   
   

5. Victor was hired by Respondent to work as a shampooist in Respondent's salon. Her first day of work was April 24, 1992.

   
   

6. At around noon on that day the mother of a young customer walked into the salon to pick up her daughter. The daughter, however, was not ready to leave. She still had rollers in her hair.

   
   

7. The mother was in a hurry. She approached Victor and asked her to remove the rollers from her daughter's hair. Victor obliged the mother and began removing the rollers.

   
   

8. Respondent, who was working on the hair of a customer seated in the chair next to the one in which the daughter was seated, overheard the discussion between the mother and Victor.

   
   

9. Respondent was aware that it was unlawful for a person to practice cosmetology in the State of Florida without a license. Furthermore, she knew that Victor did not have a license to practice cosmetology in this state. Nonetheless, inasmuch as she was busy with another customer and Victor did not have any shampooing that she needed to do, Respondent allowed Victor to remove the rollers from the daughter's hair.

   
   

10. As Victor was removing the roller's from the daughter's hair, Baldwin entered the salon to conduct a routine inspection. When Respondent saw Baldwin, she instructed Victor to stop what she was doing and leave the area. Victor did what she was told and went to the rear of the salon. Respondent then went over to the daughter and finished removing the rollers from her hair.

    
    

    CONCLUSIONS OF LAW

    
    

11. 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.

12. "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.

    
    

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

    
    

    1. It is unlawful for any person to:

       * * *

       (c) Permit an employed person to practice cosmetology or a speciality unless duly licensed or registered as provided in this chapter.

       * * *

    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

          
          

14. The Administrative Complaint issued in the instant case charges Respondent with violating Section 477.029(1)(c), Florida Statutes. The evidence adduced at hearing clearly and convincingly establishes that Respondent committed such a violation, as charged, by allowing Nancy Victor, an unlicensed shampooist working in her salon, 3/ to remove rollers from the hair of a customer. 4/ Accordingly, Respondent is subject to one or more of the penalties set forth in Section 477.029(2), Florida Statutes.

    
    

15. 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).

    
    

16. 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.

       * * *

       (c) Permitting an employed person to practice cosmetology or a specialty unless duly licensed or registered as provided in Chapter 477, Florida Statutes, unless such employed person is exempted pursuant to Section 477.0135(8) [sic], F.S. The usual recommended penalty shall be:

       1. for employing an individual who has never been licensed or registered in Florida or who is not exempt, an administrative fine of $500;

       * * *

       (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.

       
       

17. At hearing, Petitioner, through counsel, proposed that the Hearing Officer recommend the imposition of a $500.00 fine against Respondent. The Hearing Officer is of the view that this is too harsh a penalty given that Respondent did not hire Victor with the intention of having Victor perform

    duties requiring a cosmetology license and that she allowed Victor to perform such duties on only one occasion in order to accommodate a customer's mother who was waiting for her daughter and anxious to leave the salon.

    
    

18. Having considered the facts of the instant case in light of the provisions of Rule 21F-30.001, Florida Administrative Code, set forth above, the Hearing Officer concludes that a more appropriate penalty would be the imposition of a $75.00 fine.

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 finding that Respondent violated Section 477.029(1)(c), Florida Statutes, as alleged in the Administrative Complaint, and fining her $75.00 for having committed said violation.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of September, 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 15th day of September, 1992.

ENDNOTES

1/ At the final hearing held in this matter, the Department, without objection from Respondent, was granted leave to amend the Administrative Complaint to reflect the correct spelling of Respondent's last name.

2/ While Baldwin returned to the salon on a subsequent occasion, the purpose of his visit was to serve an Administrative Complaint on Respondent, not to inspect the premises.

3/ Victor did not need a cosmetology license to work as a shampooist. Section 477.0135(2), Fla. Stat.("A license is not required of any person whose occupation or practice is confined solely to shampooing"). Accordingly, Respondent did not violate Section 477.029(1)(c), Florida Statutes, by employing her in this capacity at the salon.

4/ Inasmuch as it is an integral component of a "hair arranging" process, the removal of rollers from the hair of customer constitutes the practice of "cosmetology," within the meaning of Section 477.013(4), Florida Statutes.

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Professional Regulation

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

Marie Jeanty

c/o Marie's Beauty Salon

24 West Sunrise Boulevard

Fort Lauderdale, Florida 33311

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF COSMETOLOGY

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY,

Petitioner,

-vs- CASE NO: 92-5949

DOAH NO: 92-3771

MARIE JEANTY, LICENSE NO.: Unlicensed

Respondent.

/

ORDER

THIS MATTER came before the Board of Cosmetology for final action pursuant to Section 120.57(1)(b)10, Florida Statutes, at a public meeting on November 15, 1992, in Tampa, Florida, for the purpose of considering the Recommended Order issued by the Hearing Officer in the above styled case. The Petitioner was represented by Renee Alsobrook. The Respondent was duly notified of the hearing but was neither present nor represented by counsel at the hearing.

After a review of the complete record in this matter, including consideration of the Hearing Of ficer's Recommended Order (a copy of which is attached hereto and incorporated herein by reference), written evidence (if any), and the arguments of each party, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The Hearing Officer's findings of fact are hereby approved, adopted, and incorporated herein.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact as adopted by the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 477, Florida Statutes.

   
   

2. The Hearing Officer's conclusions of law 1 through 8 and 10 are hereby approved, adopted, and incorporated herein.

   
   

3. Based upon the Hearing Officer's findings of fact 5, 7, and 9, the Board rejects the Hearing Officer's conclusion of law 9.

   
   

4. There is competent, substantial evidence to support the Board's findings and conclusions.

PENALTY

IT IS THEREFORE ORDERED AND ADJUDGED:

The penalty recommended by the Hearing Officer is rejected.

The Board shall impose an administrative fine of two hundred and fifty dollars ($250.00) against the Respondent which fine shall be paid by the Respondent to the Executive Director of the Board within 30 days of imposition of same by Final Order of the Board.

This Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 11th day of December, 1992.

BOARD OF COSMETOLOGY

Suzanne Lee Executive Director

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by United States Mail to Marie Jeanty, 24 West Sunrise Boulevard, Fort Lauderdale, Florida 33311; to Stuart M. Lerner, Hearing Officer, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by hand delivery to Renee Alsobrook, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, by 5:00 P.M., this 11th day of December, 1992.

Ruby Warner

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Section 120.59, Florida Statutes, any substantially affected person is hereby notified that they may appeal this Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty

(30) days of the date this Order is filed.

Docket for Case No: 92-003771

Orders for Case No: 92-003771