STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY,

Petitioner,

vs.

ALICE JUANITA GREENE a/k/a ALICE JUANITA KENNEDY,1/

Respondent.

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) Case No. 06-2250PL

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RECOMMENDED ORDER

Notice was provided and a final hearing was held in this case under authority set forth in Sections 120.569(1) and 120.57(1), Florida Statutes (2006). The hearing took place by video teleconference between sites in Tallahassee, Florida, and Pensacola, Florida, commencing at 10:00 a.m. (Central Time) on August 18, 2006. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Drew Winters, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Matt Yeager, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Alice Juanita Kennedy, pro se

10430 New Chemstrand Road Pensacola, Florida 32514

STATEMENT OF THE ISSUE

Should the Board of Cosmetology (the Board) impose discipline on the cosmetology license held by Respondent, Alice Juanita Greene, a/k/a Alice Juanita Kennedy (the Respondent)?

PRELIMINARY STATEMENT

On January 6, 2006, an Administrative Complaint was signed in Department of Business and Professional Regulation, Petitioner v. Alice Juanita Greene, Respondent, Case No. 2005- 006982 before the Board. It referred to an investigation by the Department of Business and Professional Regulation (the Department), associated with alleged misconduct by the Respondent, wherein Respondent had been " . . . arrested for stealing from the cosmetology salon where she worked and charged with larceny." The Administrative Complaint stated:

1. During the investigation, Respondent was charged with burglary, petit thief and resisting without violence relating to monies that were missing from the cosmetology salon where she worked (Escambia County Case Number 2005 CF 000104B).

2. The Respondent was additionally charged with possession of cocaine and narcotics equipment (Escambia County Case Number 2005 CF 000379A).

   
   

3. Both cases were heard on August 1, 2006, and according to Escambia County Clerk of Court internet records, Respondent was adjudicated guilty and sentenced, in part, to 24 months probation and to make restitution to the cosmetology salon.

For these matters the Administrative Complaint accuses Respondent of violating Section 477.028(1)(b), Florida Statutes (2005), subjecting her to disciplinary action by the Board, pursuant to Sections 477.029(1)(h) and (2), Florida Statutes (2005). Mention was also made of disciplinary action that could be imposed pursuant to Section 455.227(1)(c), Florida Statutes (2005).

Respondent was provided the opportunity to elect her rights in addressing the Administrative Complaint through a form known as an Election of Rights. Respondent chose to dispute the facts alleged in the Administrative Compliant and to be heard by an administrative law judge with the Division of Administrative Hearings (DOAH) pursuant to Section 120.57(1), Florida Statutes. On April 24, 2006, the form describing Respondent's election was received by the Department.

On June 23, 2006, DOAH received the Administrative Complaint and the Election of Rights form in the person of Robert Cohen, Chief Judge for DOAH. The case was assigned as

DOAH Case No. 06-2250PL, with the undersigned being responsible for conduct of necessary proceedings.

A Notice of Hearing by video teleconference was furnished to the parties and the hearing took place on the aforementioned date.

When the hearing commenced, Petitioner's pre-filed motion to accept Matt Yeager as a Qualified Representative to represent the Petitioner was considered. The motion was granted and

Mr. Yeager represented the party at hearing.

Petitioner requested that official recognition be made of Sections 455.227(1)(c) and 477.028(1)(b), Florida Statutes (2005). The request was granted.

At hearing Petitioner presented Louise White and Investigator James Pelham O'Hara as its witnesses. Petitioner's Exhibits numbered one through three were admitted. Respondent testified in her defense. Respondent's Composite Exhibits numbered one and two were denied admission. All exhibits are transmitted with the Recommended Order.

On September 7, 2006, the hearing transcript was filed with DOAH. On September 15, 2006, Petitioner's Proposed Recommended Order was filed. It has been considered in preparing the Recommended Order. Respondent did not submit proposed findings of fact and orders.

FINDINGS OF FACT

1. The Board has the authority and the responsibility to license cosmetologists and to control activities under the licenses to include imposition of punishment for unlawful acts.

   §§ 477.015, 477.019, 477.028, and 477.029, Fla. Stat. (2005).

   
   

2. At all times relevant to this case Respondent has been licensed as a cosmetologist in Florida, license number CL58583. The license was initially issued in March 1995, and will remain current and active through October 31, 2007.

3. Beauteria Beauty Salon is located at 235 East Nine Mile Road, Suite 11, Pensacola, Florida. The salon holds license number CE9963753 issued by the Board. At times relevant to the case the salon was owned by Louise White. While Ms. White owned the salon she rented a booth in the salon to Respondent to allow Respondent to provide cosmetology services. Respondent was not employed by Ms. White.

4. When Ms. White was not in attendance, she had a manager at the salon who was responsible for establishing the payroll for the salon. On two separate occasions the payroll was short in its balance. The first time $130.00 was missing. The second time $140.00 was missing. As Ms. White describes it, most of that money that was missing, which turned out to be stolen, has been recovered.

5. On December 15, 2004, Investigator James Pelham O'Hara of the Escambia County Sheriff's Office, Escambia County, Florida, was assigned to do a follow-up investigation of the theft at Ms. White's salon. Ms. White told Investigator O'Hara that Respondent had some information about the theft. Investigator O'Hara contacted the Respondent who told the investigator that she was not involved in the theft. Instead she stated that her son, Respondent's son, took the key to the store somehow and took the money from the business. It has not been established in this record that Respondent's son did in fact take the money that was missing.

6. Based upon Respondent's representation in a sworn affidavit provided to Investigator O'Hara that her son was involved in the theft from the Beauteria Beauty Salon, the son was arrested at the residence that he shared with Respondent. The son was taken to the county jail and charged with the theft. Later Investigator O'Hara listened to a telephone conversation between Respondent and her son, during which Respondent basically stated that her son was going to have to "take this rap" for her because of all the things she had done for him in the past. Having heard this conversation and other telephone conversations, Investigator O'Hara determined to pursue charges against Respondent, to include theft of the money from the Beauteria Beauty Salon and filing a false statement. After the

   decision was made to charge Respondent, some charges against the Respondent's son were dropped, in view of the fact that other charges were pending against the son who was in jail at the moment.

7. Investigator O'Hara went to Respondent's place of employment to arrest her. A purse that belonged to the Respondent had a metal container and a possible crack pipe in it, as the investigator perceived it. Upon the arrest, Investigator O'Hara describes the official charges filed against Respondent as burglary of a dwelling, petit theft, and obstruction of a disguised person. The later charge refers to filing the written statement that has been described. A criminal case was brought against Respondent in State of Florida, v. Alice Juanita Kennedy, Defendant, in the Circuit Court in and for Escambia County, Florida, Case Nos. 05-0104- CFB, 05-0379-CFA. Respondent was represented by a court- appointed attorney in that case. She entered a plea of nolo contendere to 05-0104: Count 1, burglary of an unoccupied structure; Count 2, petit theft; and 05-0379, Count 1, possession of (a) controlled substance. She was sentenced in relation to count one to 05-0104 and in relation to 05-0379, for which she was adjudicated guilty. The sentence was stayed for a period of 24 months for each count to run concurrent, during which time the defendant would be on probation under the

   supervision of the Florida Parole Commission. The judgment and sentence were entered August 1, 2005. The probationary period has not expired. In relation to Count 2 within 05-0104, the defendant was adjudicated guilty and sentenced to time served in jail awaiting trial. Nothing more is known concerning the facts related to the case before the circuit court. It is found that the criminal court matter arose based upon Investigator O'Hara's pursuits arising from the theft at Ms. White's salon leading to Respondent's arrest and prosecution.

8. In her testimony Respondent acknowledged the time that she worked at Ms. White's salon. Her son was living with her during that period. She complained about what she said was her son's "record of all the thefts and things he has done" and arrest in relation to Ms. White's missing $270.00. Respondent also acknowledges her arrest for the missing $270.00. The purse that Investigator O'Hara describes was one that Respondent said had been in her closet that contained paraphernalia, taken to mean drug paraphernalia. Respondent pointed out that other persons had access to spaces within the home, to include her son. In her testimony Respondent denied any involvement in the theft of the $270.00 from Ms. White, blaming the incident on her son. Respondent's explanation for offering her no contest plea in circuit court was, "I finally pleaded no contest to the charges so that I could go home." In addition to describing the

   fact that she wanted to get out of jail, she testified about a lack of meaningful assistance by her appointed attorney and an illness that was made worse by her confinement.

9. No indication was given that the Respondent has any prior disciplinary history as a licensed cosmetologist in Florida.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this case in accordance with Sections 120.569, 120.57(1) and 455.225(5), Florida Statutes (2006).

11. Respondent holds cosmetologist license CL58583 issued by the Board. Through an Administrative Complaint before the Board brought by the Department in Case No. 2005-006982, the Board intends to enter a final order imposing discipline against Respondent's cosmetology license. To sustain the allegations in the Administrative Complaint concerning facts and law leading to punishment, the proof needed must come from Petitioner, and there must be clear and convincing evidence to sustain the action. See Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996), and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The meaning of clear and convincing evidence is explained in the case In Re: Davey 645 So. 2d 398 (Fla. 1994),

    quoting, with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

12. The case arises from a theft at the salon owned by Louise White, resulting in the Respondent being charged in the Circuit Court in and for Escambia County, Florida, Case No. 05- 0104-CFR, with burglary of an unoccupied structure, and petit theft and an additional case in that court, Case No. 05-0379- CFA, for possession of a controlled substance. Both of the court cases were referred to in the Administrative Complaint that forms the basis for the present case. The Administrative Complaint goes on to describe the disposition of the cases in the Circuit Court in and for Escambia County, Florida, that took place on August 1, 2005.

13. When Respondent, the defendant in circuit court, appeared on August 1, 2005, she entered a plea of nolo contendere to Count 1, burglary of an unoccupied structure and Count 2, petit theft in relation to Circuit Court Case No. 05- 0104 and to Count 1, possession of controlled substance in Circuit Court Case No. 05-0379. A written judgment and sentence were entered against her. The judgment of the court for Count 1 to Circuit Court Case No. 05-0104 and Count 1 to Circuit Court Case No. 05-0379 was that the Respondent/defendant be adjudged guilty, but the sentence was stayed for a period of 24 months in each count to run concurrent, during which time the Respondent/

    defendant would be on probation under supervision of the Florida Parole Commission. The period of probation has not run. Count

    2 to Circuit Court Case No. 05-0104 was disposed of by crediting the Respondent/defendant with the time that she had served in jail. In context, Respondent/defendant had been adjudged guilty as a means to credit her for the time served pertaining to Count

    2 within Circuit Court Case No. 05-0104.

    
    

14. The facts in this case that have been found clearly and convincingly established are that $270.00 dollars was stolen from the salon owned by Louise White, and it is that theft that formed the basis for the Circuit Court Case No. 05-0104, to which the Respondent/defendant plead nolo contendere to burglary of that unoccupied structure and petit theft and was adjudged guilty, with the sentence for the burglary itself being stayed for a period of 24 months during which time the Respondent/defendant would be on probation. The petit theft was disposed of based upon an adjudication of guilt by the Respondent/defendant being credited with time served. On the facts found in this Recommended Order, it is concluded that the possession of controlled substance case arose upon the Respondent's/defendant's arrest.

15. As a consequence, the Respondent has been charged in the Administrative Complaint with violating Section 477.028(1)(b), Florida Statutes (2005), which states:

    422.028 Disciplinary proceedings -

    
    

    (1) The board shall have the power to revoke or suspend the license of a cosmetologist licensed under this chapter, .

    . . and to reprimand, censure, etc. discipline a cosmetologist . . .

    
    

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    1. Upon proof that the holder of a license or registration is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice . . . of cosmetology . . .

       
       

16. Respondent has not acknowledged, nor have facts been proven independent of her acknowledgement, that would lead to the conclusion that Respondent stole $270.00 dollars from the salon that belonged to the owner Louise White. All that is known is that the Respondent/defendant appeared in circuit court and entered a plea of nolo contendere, for which judgment and sentence were entered after adjudication with the underlying facts to resolve that case not being stated. That is insufficient to establish a violation pertaining to Section 477.028(1)(b), Florida Statutes (2005). Even if the facts involved in the theft could be directly attributable to the Respondent on this record, such act would not involve gross negligence, incompetency, or misconduct in the practice, the direct provision of cosmetology. Therefore no violation has been shown related to Section 477.028(1)(b), Florida Statutes (2005).

17. The Administrative Complaint alleges that Respondent violated Section 455.227(1)(c), Florida Statutes (2005), which

    states:

    
    

    455.227 Grounds for discipline; penalties; enforcement. -

    
    

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    1. Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession.

    
    

18. Respondent pled nolo contendere to burglary of an unoccupied structure, petit theft and possession of a controlled substance for which she was adjudicated. The theft was from the salon owned by Louise White and in proximity to where Respondent provided cosmetology services, in relation to her practice of cosmetology. See Greenwald v. Department of Professional Regulation, 501 So. 2d 740 (Fla. 3rd DCA 1987), rev. denied, 511 So. 2d 998, cert. denied 44 U.S. 986 (1987); Ashe v. Department of Business and Professional Regulation, 467 So. 2d 814 (Fla. 5th DCA 1985); and Rush v. Department of Profession Regulation, Board of Podiatry, 448 So. 2d 26 (Fla. 1st DCA 1984).

19. Respondent was adjudged guilty concerning the theft as it related to the burglary of an unoccupied structure and petit theft. With the adjudication, Respondent would not be entitled to explain the circumstances surrounding her plea. Respondent

    did violate Section 455.227(1)(c), Florida Statutes (2005), by being adjudged guilty of crimes related to her profession. Even if she were entitled to explain those circumstances, her explanation does not overcome the significance of the plea as evidence of a violation in association with Section 455.227(1)(c), Florida Statutes (2005). See Son v. Florida

    Department of Profession Regulation, Division of Real Estate, 608 So. 2d 75 (Fla. 3rd DCA 1992); Kinney v. Department of State, Division of Licensing, 501 So. 2d 129 (Fla. 5th DCA 1987); and Ayala v. Department of Professional Regulation, 487 So. 2d 1116 (Fla. 1st DCA 1985). Given Respondent's access to the salon where the money was stolen and her telephone conversation with her son, who was in jail at the time, when Respondent made mention that the son was due to take the rap this time, and lacking any corroboration that would further explain the question of effectiveness of counsel and the state of her health when the plea was entered while attended by her counsel, the presumption of the significance of the nolo

    contendere plea has not been overcome.

    
    

20. Section 455.227(2), Florida Statutes (2005), sets out the penalties that may be imposed for the violation. They include the opportunity to impose an administrative fine that would not exceed $5,000.00 for each count or separate offense.

In this case the Petitioner asks that an administrative fine be paid in the amount of $5,000.00, as described in Petitioner's Proposed Recommended Order.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding that Respondent violated Section 455.227(1)(c), Florida Statutes (2005), that Respondent did not violate Section 477.028(1)(b), Florida Statutes (2005), and imposing an administrative fine of

$2,000.00.

DONE AND ENTERED this 17th day of October, 2006, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 17th day of October, 2006.

ENDNOTE

1/ The Department of Business and Professional Regulation, Board of Cosmetology licensed the Respondent, Alice Juanita Greene. Since that time her marriage was dissolved and she reassumed her maiden name Alice Juanita Kennedy.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Drew Winters, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Matt Yeager, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Alice Juanita Kennedy 10430 New Chemstrand Road Pensacola, Florida 32514

Robyn Barineau, Executive Director Board of Cosmetology

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 06-002250PL

Orders for Case No: 06-002250PL