STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS and )

PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 95-1354

) DBPR CASE NO. 94-17965

EUGENE EUBANKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on June 6, 1995 a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Jacksonville, Florida. The Hearing Officer was Charles C. Adams.

APPEARANCES

For Petitioner: James E. Manning

Qualified Representative Department of Business

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

For Respondent: Eugene Eubanks, Pro se

1443 Raven Drive

Jacksonville, Florida 32218 STATEMENT OF ISSUES

Did Respondent fail to meet required sanitary standards in a cosmetology salon in which he was the owner and/or operator? In particular, did Respondent fail to maintain sanitary standards in that:

1. All cleanse/disinfectant equipment was not stored in clean closed cabinets/container under ultra violet irradiation;

   
   

2. Undisinfected articles not kept in same storage areas as articles sanitized;

   
   

3. Most current inspection sheet not conspicuously displayed.

PRELIMINARY STATEMENT

Following an inspection which was conducted on October 27, 1994, Respondent was cited for the sanitation violations referred to before. Rather than pay a fine in response to the citation, Respondent elected to proceed to a Section 120.57(1), Florida Statutes hearing. On March 16, 1995, Petitioner requested that the Division of Administrative Hearings appoint a hearing officer to conduct the formal hearing. That appointment was made and the hearing was conducted on the aforementioned date.

Having elected to proceed to a formal hearing, an administrative complaint was drafted in DPBR Case No. 94-17965 formally charging Respondent with the sanitation violations.

On May 5, 1995, an order was entered qualifying James E. Manning to represent Petitioner in this case.

At hearing Petitioner presented the witness Carol Engels and two exhibits which were received. Respondent testified in his own behalf.

Official recognition is made of Chapter 61G, Florida Administrative Code.

This follows the supplemental filing in which a correlation has been drawn between the previous Chapter 21F, Florida Administrative Code and Chapter 61G, Florida Administrative Code. That filing was made on June 9, 1995. At the time the supplemental filing was made, a copy of that filing was provided to Respondent. The reason for this comparison concerns the fact that information that had been provided to the Respondent related to his obligations as a licensee in accordance with Chapter 21F, Florida Administrative Code which became Chapter 61G, Florida Administrative Code. Official recognition was also made of Chapter 477, Florida Statutes.

A hearing transcript was filed on June 23, 1995. Petitioner timely submitted a proposed recommended order. Respondent has not submitted a proposed recommended order. The fact findings suggested in the Petitioner's proposed recommended order are addressed in an appendix to the recommended order.

FINDINGS OF FACT

1. Respondent is a licensed cosmetologist in the State of Florida. His license number is CL-0114757.

   
   

2. At times relevant to the inquiry, Respondent was the owner and/or operator of a cosmetology salon named La'Moods. At times relevant, the license number for La'Moods was CE-0058354. At times relevant that salon was located in Jacksonville, Florida.

   
   

3. Carol Engels is an inspector for the Petitioner. In performing her duties she routinely inspects cosmetology salons.

   
   

4. Ms. Engels made a routine inspection of La'Moods on October 27, 1994.

   
   

5. While the inspection was being conducted, the salon was open for public business.

   
   

6. At that time, Chester Akins, a cosmetologist at the salon was combing a customer's hair.

7. Ms. Engels inspected Mr. Akins' work area. In the Akins' work area there were loose hair cuttings. There was clutter on the top of a counter in the work area. When that clutter was moved by Ms. Engels, several cockroaches crawled out onto the work station. In addition, Ms. Engels observed a number of "gobs" of hair and greasy combs in that part of the work area that is referred to as a "clean area".

   
   

8. Reference the cosmetologist's obligations to be performed after each customer leaves, the combs should be washed with soap and water and then disinfected for about 20 minutes and then stored in the clean area. In this instance, the clean area for Mr. Akins' work station was a drawer and that drawer had loose hair, greasy combs with hair in them, and dirty brushes in it. The drawer also had Mr. Akins' personal effects, some papers such as receipts, keys and money. The receipts, keys and paper should not have been in the clean area.

   
   

9. Respondent was not in attendance when the inspection commenced. He came to the salon before the inspection was concluded. He did not observe the clean area at the Akins' work station on the date the inspection was made.

   
   

10. The inspection sheet concerning the prior inspection that had been performed was not conspicuously displayed on October 27, 1994. It had been moved from a conspicuous location to the shampoo area. Respondent surmises that the inspection sheet had been placed there by a cleaning crew. This was not the first occasion in which the prior inspection sheet was not conspicuously displayed. Respondent had been cited for violations of not having prior inspection sheets conspicuously displayed because the inspection sheet had fallen off the wall or been moved by persons cleaning the salon.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

12. Section 477.029(1)(i), Florida Statutes, makes it a violation for a cosmetologist to violate rules related to the practice of cosmetology.

    
    

    Petitioner must prove the allegations in the administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 570 So.2d 292 (Fla. 1987).

13. Rule 61G5-20.004(2)(e), Florida Administrative Code states: Each salon shall comply with the following:

    ...after cleaning and disinfecting, articles shall be stored in a clean, closed cabinet or container until used. Undisinfected articles such as pens, pencils, money, paper, mail, etc., shall not be kept in the same container or cabinet...

    
    

14. The combs in the Akins' clean area, had not been cleaned and were not stored in a clean container. In addition, money, paper and keys were placed in the same drawer. By these circumstances Rule 61G5-20.004(2)(c), Florida Administrative Code has been violated.

15. Rule 61G5-20.004(3), Florida Administrative Code, requires licensees to display for public viewing, in a conspicuous place, the latest inspection sheet referred to in the fact finding as the prior inspection sheet.

    
    

16. When inspection was made, the latest inspection sheet was not displayed for public viewing in a conspicuous place. Thus, Rule 61G5-20.004(3), Florida Administrative Code, was violated.

    
    

17. As owner/operator Respondent is responsible for these violations that have been proven by clear and convincing evidence.

    
    

18. In accordance with Rule 61G5-30.001(1)(j), Florida Administrative Code, a $250.00 administrative fine is an appropriate punishment for the violations.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That a Final Order be entered making Respondent responsible for the violations found and fining Respondent $250.00.

DONE and ENTERED this 25th day of July, 1995, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 25th day of July, 1995.

APPENDIX

The following discussion is given concerning the Petitioner's proposed findings of fact:

Those facts are subordinate to facts found in the Recommended Order.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Cosmetology

Department of Business

and Professional Regulation 1940 No. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0790

Lynda L. Goodgame, General Counsel Department of Business

and Professional Regulation 1940 N. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0790

James E. Manning, Qualified Representative Department of Business

and Professional Regulation 1940 N. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0792

Eugene Eubanks 1443 Raven Drive

Jacksonville, FL 32218

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: 95-001354

Orders for Case No: 95-001354