STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0270

)

DELIA URRUTIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Tampa, Florida, on March 30, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Anthony Cammarata, Senior Attorney

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Delia Urrutia, pro se

8307 Paddle Wheel

Tampa, Florida 33637

ISSUE

The issue in this case is whether Respondent is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of cosmetology and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 24, 1992, Petitioner alleged that Respondent applied a full set of acrylic nails to Sharon Seamon; that Ms.

Seamon returned on June 6, 1992, to have the nails filled; that Ms. Seamon revisited Respondent on June 12 and July 2, 5, and 7, 1992, to inquire about black spots present on her nails; that Respondent more than once told Ms.

Seamon that the black spots were due to bruises; and that the black spots were in fact fungus. As a result, the Administrative Complaint alleges that Respondent is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of cosmetology, in violation of Sections 477.028(1)(b) and 477.029(1)(h), Florida Statutes.

At the hearing, Petitioner called four witnesses and offered into evidence ten exhibits. Respondent called two witnesses and offered into evidence no exhibits.

The transcript was filed April 9, 1993. Each party filed a proposed recommended order. Respondent's proposed finding that she did nothing wrong is rejected as unsupported by the appropriate weight of the evidence. Treatment accorded the proposed findings of Petitioner is detailed in the appendix.

FINDINGS OF FACT

1. Respondent is a licensed cosmetologist, holding license number CL 0143625. She has been licensed for about ten years. Her license is current and in good standing.

   
   

2. Respondent has been applying acrylic nails since 1989. She also performs manicures and pedicures.

   
   

3. On May 28, 1992, Sharon Seamon visited the Hair Plus salon, which is located in the Belk-Lindsey department store. Ms. Seamon works at Belk-Lindsey.

   
   

4. During the May 28 visit, Respondent applied a full set of acrylic nails onto Ms. Seamon's existing fingernails. Although she dried the nails with a towel, Respondent failed to apply a dehydrating agent to the existing nails before applying the acrylic nails. However, the evidence does not establish that this omission resulted in the fungus that later attacked Ms. Seamon's natural fingernails.

   
   

5. On June 6, 1992, Ms. Seamon returned to Hair Plus, and Respondent filled her nails. At this time, the natural fingernails were fine.

   
   

6. On June 12, 1992, Ms. Seamon returned to Hair Plus and complained about black spots that had showed up on about four of her fingernails. Respondent advised Ms. Seamon that the spots were bruises. In fact, the spots were fungus.

   
   

7. On July 7, 1992, Ms. Seamon returned to Hair Plus and showed Respondent her fingernails. All ten had black lines on them. The nails were clearly infected with fungus. However, Respondent did not indicate what the problem was, if she knew, and failed to give Ms. Seamon pertinent advice as to how to care for the problem.

   
   

8. Ms. Seamon promptly visited a physician, who correctly diagnosed the problem as a fungus. After two or three months, the fungus cleared up completely.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

10. Section 477.029(1)(h) provides that it is unlawful for any person to violate any provision of Section 477.028.

11. Section 477.028(1)(b) provides that the board has the power to "revoke or suspend" the license of any cosmetologist or to "reprimand, censure, deny subsequent licensure . . ., or otherwise discipline" a cosmetologist upon proof that the cosmetologist is guilty of "fraud or deceit or of gross negligence, incompetency, or misconduct in the practice . . . of cosmetology "

    
    

12. Section 477.029(2) authorizes the above-cited discipline, as well as the imposition of an administrative fine of not more than $500 per offense and probation for such time and subject to such "reasonable conditions" as the board may specify.

    
    

13. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

14. There is no evidence of fraud or deceit. The evidence is insufficient as to incompetency and misconduct. However, Petitioner has proved that Respondent was guilty of gross negligence in failing to detect that the black marks on the natural fingernails were a fungus requiring medical attention.

    
    

15. The evidence does not establish gross negligence in the application of the acrylic nails initially. It is not entirely clear that Respondent did not fully dry the nails, and it is entirely possible that Ms. Seamon may have inadvertently been responsible for the inception of the fungal condition. Likewise, the evidence does not establish that Respondent repeatedly failed to diagnose the fungal condition. In particular, Ms. Seamon's claim that she repeatedly tried to bring the condition to the attention of Respondent is discredited. The above-cited facts, as well as the absence of prior discipline involving Respondent, militate in favor of a relatively mild penalty.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Board of Cosmetology enter a final order finding Respondent guilty of gross negligence in the practice of cosmetology, reprimanding Respondent's license, and imposing an administrative fine of $300.

ENTERED on April 19, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

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 April, 1993.

APPENDIX

Treatment Accorded Proposed Findings of Petitioner

1-10 (first sentence): adopted or adopted in substance.

10 (second sentence): rejected as irrelevant.

11: rejected as unsupported by the appropriate weight of the evidence. 12: adopted.

13: rejected as subordinate.

14-21: rejected as unnecessary. Liability in this case is predicated upon Respondent's failure to diagnose. Petitioner did not prove by clear and convincing evidence that the liability may be predicated by the inception of the fungus.

22-23: adopted.

24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted.

26-29: rejected as legal argument.

COPIES FURNISHED:

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

Tallahassee, FL 32399-0792

Kaye Howerton, Executive Director Board of Cosmetology

1940 North Monroe Street Tallahassee, FL 32399-0792

Anthony Cammarata, Senior Attorney Department of Professional Regulation 1940 N. Monroe St., Ste. 60

Tallahassee, FL 32399-0792

Delia Urrutia, pro se 8307 Paddle Wheel

Tampa, FL 33637

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.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF COSMETOLOGY

DEPARTMENT OF BUSINESS

AND PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY,

Petitioner,

-vs- CASE NO: 92-11536

D0AH NO: 93-0270

DELIA URRUTIA, LICENSE NO.: CL143625

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 June 28, 1993, in Tallahassee, Florida, for the purpose of considering the Recommended Order issued by the Hearing Officer in the above styled case. The Petitioner was represented by James Manning, Esquire. 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 Officer'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 are hereby approved, adopted and incorporated herein.

   
   

3. 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 $150.00 (one hundred fifty dollars) 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.

The Respondent, Delia Urrutia, shall be and hereby is REPRIMANDED. This Order shall become effective upon filing with the Clerk of the

Department of Business and Professional Regulation. DONE AND ORDERED this 9th day of August, 1993.

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 Delia Urrutia, 2803 West Sligh Avenue #502, Tampa, Florida 33612, and Robert E. Meale, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Jim Manning, Staff Attorney, Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750, by 5:00 P.M., this 9th day of August, 1993.

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: 93-000270

Orders for Case No: 93-000270