STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RITA MOROZ, d/b/a A NEW )

ADVENTURE OF TAMPA BAY, )

)

Petitioner, )

)

vs. ) Case No. 01-0373

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-appointed Administrative Law Judge, Fred

L. Buckine, held a formal hearing in this case on March 23, 2001, by video in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Rita Moroz, pro se

d/b/a A New Adventure of Tampa Bay 11608 N. Dale Mabry Highway

Tampa, Florida 33618

For Respondent: Barbara McPherson, Esquire

Hillsborough County Department of Health

300 31st Street, North

St. Petersburg, Florida 33713

STATEMENT OF THE ISSUE

Whether or not on or about December 8, 2000, Petitioner possessed the appropriate license to operate a body-piercing salon establishment in accordance with Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code.

PRELIMINARY STATEMENT

On or about December 8, 2000, Beth Crowell, of the Hillsborough County Health Department, issued a Citation of Violation (DOH form 4121) to Petitioner (hereinafter Moroz), who by her signature acknowledged acceptance. The citation charged Moroz with operating a body-piercing salon establishment without a proper license. The citation issued to Moroz constitutes a Notice of Proposed Agency Action and described the particular nature of the violation.

On or about January 3, 2001, Moroz made her request for an administrative hearing by mailing to Respondent her written dispute of the material facts as alleged in the "description of the cited violation," Part I, page 2, DH 4121 10/99 form.

On or about January 26, 2001, Respondent forwarded to the Division of Administrative Hearings a request to assign this matter to an Administrative Law Judge to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

On or about February 9, 2001, a Notice of Hearing by Video Teleconference and an Order of Pre-Hearing Instructions were entered and furnished to parties of record, scheduling the Final Hearing by video teleconference for March 23, 2001, with sites in Tampa and Tallahassee, Florida.

At the final hearing Moroz testified on her own behalf, resented no additional witnesses, and presented no exhibits for admission as evidence. The Agency offered four exhibits which were admitted as evidence.

At the close of the final hearing, the parties were given

15 days to file their respective proposed recommended orders.

Petitioner Moroz chose not to file a proposed recommended order. Counsel for the Agency filed a Proposed Recommended Order on April 4, 2001, which has been considered.

FINDINGS OF FACT

Based upon the evidence presented, the testimony, and upon the personal inspection of the undersigned, the following findings of fact are made:

1. At all times material hereto, Respondent, Department of Health, Division of Environmental Health, is the state agency charged with implementation of Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code.

2. At all times material hereto, Petitioner, Rita Moroz, operated a manicure-pedicure, nail-lengthening establishment, "A

   New Adventure of Tampa Bay," located at 11608 North Dale Mabry Highway, Hillsborough County, Tampa, Florida 33618.

3. Section 381.0075(2)(a), Florida Statutes, defines "BodyPiercing" as for commercial purposes the act of penetrating the skin to make, generally permanent in nature, a hole, mark, or scar. "Bodypiercing" does not include the use of a mechanized, presterilized ear-piercing system that penetrates the outer perimeter of lobe of the ear or both.

4. At all times material hereto, Petitioner admitted that she operated a body-piercing establishment salon and provided body-piercing services without first having obtained a

   body-piercing license as required by law.

   
   

5. At all times pertinent hereto, Petitioner possessed a manicure-pedicure license issued by another country and her foreign license also authorized body-piercing services. Petitioner, upon receipt of the Certificate of Violation, discontinued performing body-piercing services.

6. The representative for the Agency stated that the Department would accept, in consideration of Petitioner's admissions and prompt discontinuation of body-piercing services, a reduced fine in an amount not to exceed $500.00.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearing has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, and 120.57, Florida Statutes.

8. Section 381.0075, Florida Statutes (2000), authorizes The Department of Health, Division of Environmental Health, to license persons engaged in commercial body-piercing, to inspect or investigate, to enter any licensed establishment should there be reason to believe its being operated or maintained in violation of established rules or law, and issue citations, among other things, when violations are found and/or believed to have occurred.

9. Section 381.0075 (4)(a), Florida Statutes, requires every person engaged in commercial body-piercing to be licensed, in pertinent part state:

   (4) License required.

   1. A person may not operate an establishment unless it is licensed under this section.

   2. A person operating an establishment must obtain a license from the department annually.

   
   

   Section 381.0075 (5) License application requires one to be licensed prior to engaging in commercial body piercing.

   (a) A person must apply to the department for an establish license prior to commencement of operation and must apply for annual renewal of the license in order to continue operation.

   
   

   * * *

   
   

   (c) The licensee must report any change in the application information to the department before the change may be put into operation.

   Petitioner admitted operating a body-piercing establishment without first having made application to the Department or having been issued a body piercing license by the Department. Accordingly, Petitioner has violated Section 381.0075(4)(a), Florida Statutes.

   
   

10. The Agency, as the party asserting the affirmative of the issue (operating a body-piercing establishment without a proper license), has the burden of proof and of persuasion in this proceeding. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 340 (Fla. 1st DCA 1977). Absent a demand to revoke or suspend Moroz's license, the standard of proof should be a preponderance of the evidence. Subsection 120.57(j), Florida Statutes.

11. The Agency, having investigated this matter and having issued a Citation of Violation to Petitioner for operating a body-piercing establishment without a proper license, has proven Petitioner's violation of the cited statute by a preponderance of the evidence.

12. Section 381.0075(9)(b), Florida Statutes, in pertinent part state:

    
    

    1. The department may impose an administrative fine, not to exceed $1,000

       per violation per day, for the violation of any provision of this section, any rule adopted under this section, or any term or condition of any license issued under this section by the department.

    2. In determining the amount of fine to be levied for a violation, as provided in paragraph (b), the following factors shall be considered:

    1. The severity of the violation and the extent to which the provisions of this section, the rules adopted under this section, or any terms or conditions of any license issued under this section were violated.

    2. Actions taken by the licensee to correct the violation.

    3. Any previous violations by the licensee.

    
    

    * * *

    
    

    (f)5. The Department may reduce or waive any fine imposed by a citation. In determining whether to reduce or waive a fine, the department must consider the gravity of the violation, the person's attempts at correcting the violation, and the person's history of previous violations for which enforcement actions were taken under this Section.

    
    

    * * *

    
    

    7. This paragraph provides an alternative means of enforcing this section or rules adopted under this section by any other means. However, the department may use only a single method of enforcement for each violation.

    
    

13. The Citation of Violation herein referred was the first citation of violation issued to Petitioner. Upon receipt and acknowledgement of the citation, Petitioner discontinued performing body-piercing services. After consideration of

pertinent facts the Agency's representative agreed to recommendation of an administrative of $500.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED

That the Department enter its Final Order finding Petitioner guilty of violating Subsection 381.0075(4)(a), Florida Statutes, and pursuant to Subsection 381.0075(9)(b), Florida Statutes, and impose a penalty in the amount of $500.00.

DONE AND ENTERED this 11th day of April 2001, in Tallahassee, Leon County, Florida.

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2001.

COPIES FURNISHED:

Barbara McPherson, Esquire Department of Health

300 31st Street, North

St. Petersburg, Florida 77313

Rita Moroz

d/b/a, A New Adventure of Tampa Bay 11608 North Dale Mabry Highway Tampa, Florida 33618

Dr. Robert G. Brooks, Secretary Department of Health

4052 Bald Cypress Way Bin A00

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A00

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-000373

Orders for Case No: 01-000373