The Issue Whether Respondent practiced cosmetology in a salon in Florida without a Florida cosmetologist license as required by Chapter 477, Florida Statutes. Whether Respondent's license should be revoked, annulled, withdrawn or suspended.
Findings Of Fact Respondent admitted the violation of Chapter 477, Florida Statutes, as charged by the Florida State Board of Cosmetology. Respondent practiced cosmetology without a Florida license. Respondent now has a current Florida Cosmetologist License No. 19649.
The Issue Respondent's alleged violation of section 477.02(1), (3), (6), Florida Statutes. A copy of the Administrative Complaint and Notice of Hearing was received by Respondent, but he did not appear at the hearing. (Exhibit 1) At the commencement of the hearing, Petitioner's representative stated that Respondent's place of business, Jane's Beauty Salon, Fort Myers, Florida, is out of business and that Certificate of Registration to operate a beauty salon in that name No. 19330 issued by Petitioner in December, 1973, is no longer valid. Accordingly, counsel for Petitioner interposed no objection to dismissal of the matter.
Recommendation The the allegations against Respondent be dismissed. DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. COPIES FURNISHED: Ronald C. LaFace, Esquire P.O. Box 1752 Tallahassee, Florida Leon Rizzuto 2351 East Mall, Apartment 103 Fort Myers, Florida 33901 THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether Respondent violated Section 477.02(6); 477.15(8); 477.27(1) and (2), F.S. by allowing a person to practice the art of cosmetology in her salon without said person being a registered cosmetologist by the State of Florida.
Findings Of Fact Respondent, Marlene Fletcher, d/b/a the Beauty Parlour, did allow one Victoria Kane to practice the art of cosmetology, to-wit: the giving of a permanent wave to a customer in Respondent's salon at a time in which she held no Florida license. Respondent discussed by long distance telephone the circumstances attending the giving of said permanent wave by the said Victoria Kane. The said Victoria Kane was not in the employ of the Respondent; however, said Victoria Kane was under the control of the Respondent inasmuch as the practice of the art of cosmetology was in the salon of Respondent and at a time in which the Respondent was present.
Findings Of Fact Larry F. Plogg, presently holds an active cosmetology license issued by Petitioner, License No. CL-0125370, for the period September 1, 1982, through June 30, 1984. On May 11, 1982, Plogg began employment as a cosmetologist in a salon operated by Shear Pleasure, Inc., in Jacksonville, Duval County, Florida. This employment has been ongoing and continues to the present. Shear Pleasure, Inc., is the holder of License No. CE0027634, issued by Petitioner. Plogg's licensure was by the process of endorsement, in that Plogg had acted as a licensed cosmetologist in the State of Georgia prior to his employment in Jacksonville, Florida. On the date that Plogg was employed, Fontaine LeMaistre, owner of the Respondent salon, contacted Charles Coats, an investigator with Petitioner and inquired of him on the subject of Plogg's ability to assume his duties as a cosmetologist, pending the receipt of the Florida license by endorsement. Coats indicated that Plogg could begin his duties by posting an indication of the payment of fees for the issuance of the license, assuming that the application for license was otherwise proper. As contemplated by Coats, the posting of the indication of fee payment would serve as a temporary verification of pending licensure for purposes of any inspection of the salon on the question of employee licensure. Plogg had mailed a money order in the amount of thirty-five dollars ($35.00) to Petitioner to obtain his license. The date of this money order was May 10, 1982. Sometime in July, 1982, Plogg contacted the Petitioner to ascertain the status of his license request, having not received his Florida license. he was told that nothing had been filed in furtherance of his licensure by endorsement and that he should send another application together with necessary money. In complying with the instruction, Plogg filed another application form together with another money order on August 13, 1982. Between August 13, 1982, and August 27, 1982, an inspection was made by an unidentified employee of the Petitioner. At that time, Plogg had copies of the original money order of May 10, 1982, and the subsequent money order of August 13, 1982, together with his Georgia license posted for inspection. Notwithstanding Coats' prior assurance, the indication of licensure was questioned by the inspector and apparently the absence of a Florida license being posted at Plogg's work station led to the promotion of the present Administrative Complaint. Out of the circumstance of the inspection, Plogg became concerned about the status of his license request and spoke, by telephone, with Petitioner's employee in Tallahassee, Florida, and was told that he needed to submit another thirty-five dollars ($35.00) to gain licensure, in view of an increase in the fee requirement for licensure by endorsement. This was complied with by forwarding a money order on August 27, 1982, in the amount of thirty-five dollars ($35.00), leading to the aforementioned licensure by endorsement on September 1, 1982.
The Issue The issue in this case is whether certain statements by officials of Respondent Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (ABT), constitute an unpromulgated rule that is invalid pursuant to Subsection 120.54(1)(a), Florida Statutes (2006).1/
Findings Of Fact The Parties Petitioner TWM is a licensed retail vendor of alcoholic beverages. It operates nine stores in Florida that sell alcoholic beverages, including distilled spirits, by the package. Respondent ABT is the state agency authorized by Section 561.02, Florida Statutes, to regulate the alcoholic beverage industry, including manufacturers, distributors and vendors of alcoholic beverages within the State of Florida. Intervenor ABC is a licensed retail vendor of alcoholic beverages, holding in excess of 100 licenses authorizing the sale of alcoholic beverages, including distilled spirits, by the package. The Alleged Unpromulgated Rule Florida has a three-tiered system of alcoholic beverage distribution. Manufacturers produce the product and sell to distributors, distributors sell the product at wholesale to licensed vendors, and vendors sell the product to the general public at retail. §§ 561.14(1)-(3), Fla. Stat. The term "in-store servicing" refers generally to activities by distributors or manufacturers on the vendor's premises, such as placing stock on shelves, rotating stock, and affixing prices. On April 4, 2007, Renee Alsobrook emailed a message to John Harris, a governmental consultant, which included the following statement: In researching the coupon rule, I reviewed prior opinions I had provided and determined that this opinion provided to you in March, 2006, was wrong. I WAS WRONG. Section 561.424, F.S., clearly excludes in-store servicing of distilled spirits. Please communicate the position of ABT to your wholesalers and Trone. On April 24, 2007, Stephen Hougland emailed the following message to Mr. Harris: John, after considerable research and consultation, ABT's opinion is that FL law does not permit in-store servicing for spirits. I'd be glad to talk to you about the decision as I am sure you are concerned about the impact on your clients. These two email messages were cited by TWM in its Petition as expressions of a new policy that has not been adopted as a rule and is, therefore, invalid and unenforceable. In the course of discovery, other written statements by ABT employees were found that were also made in April 2007, which TWM contends are expressions of the new policy. In a letter dated April 9, 2007, from Lisa Comingore, assistant general counsel for DBPR, to Charles Bailes of ABC, Ms. Comingore states: Wholesalers and manufacturers of distilled spirits are not authorized to provide in- store servicing by section 561.424, Florida Statutes and would be providing aid to retailers in the form of providing labor for the retailer. Such aid to the retailer could constitute a violation of section 561.42, Florida Statutes. In a letter dated April 30, 2007, from Director Hougland to Mr. and Mrs. John Schaeffer of Great Spirits Liquor & Fine Wine, Director Hougland states: Florida law allows in-store servicing of beer and malt beverages as well as vinous beverages, however, in-store servicing of distilled spirits is not authorized . . . Section 561.424(2), Florida Statutes, specifically excludes in-store servicing of distilled spirits. Wholesalers and manufacturers of distilled spirits are not authorized to provide in- store servicing by section 561.424, Florida Statutes and would be providing aid to retailers in the form of providing labor for the retailer. Such aid to the retailer could constitute a violation of section 561.42, Florida Statutes. The Governing Statutes The federal government and many states, including Florida, enacted "Tied House Evil" laws to prevent the "evils" that arose from relationships between vendors of alcoholic beverages and manufacturers and distributors which caused the vendors to be controlled by or "tied" to the distributors and manufacturers. Winn Dixie Stores, Inc., v. Schenck Co., 662 So. 2d 1021, 1023 (Fla. 5th DCA 1995); Musleh v. Fulton Distributing Co. of Florida, 254 So. 2d 815, 817 (Fla. 1st DCA 1971). Florida's Tied House Evil law, set forth in Subsection 561.42(1), Florida Statutes, provides: No licensed manufacturer or distributor of any of the beverages herein referred to shall have any financial interest, directly or indirectly, in the establishment or business of any vendor licensed under the beverage laws; nor shall such licensed manufacturer or distributor assist any vendor by any gifts or loans of money or property of any description or by the giving of any rebates of any kind whatsoever. No licensed vendor shall accept, directly or indirectly, any gift or loan of money or property of any description or any rebates from any such licensed manufacturer or distributor; provided, however, that this does not apply to any bottles, barrels, or other containers necessary for the legitimate transportation of such beverages or to advertising materials and does not apply to the extension of credit, for liquors sold, made strictly in compliance with the provisions of this section. ABT contends that Subsection 561.42(1), Florida Statutes, prohibits in-store servicing of alcoholic beverages by distributors or manufacturers because it constitutes a gift of "free labor" to the vendor. TWM does not dispute ABT's interpretation of Subsection 561.42(1), Florida Statutes, as prohibiting in-store servicing as a form of gift, but TWM contends that subsequent legislation resulted in the removal of the prohibition. In 1975, Section 561.423, Florida Statutes, created an exception for in-store servicing of beer and malt beverages: Nothing in s. 561.42 or any other provision of the Beverage Law shall prohibit a distributor of beer or malt beverages from providing in-store servicing of malt beverages. "In-store servicing" as used herein means quality control procedures which include, but are not limited to: rotation of malt beverages on the vendor's shelves, rotation and placing of malt beverages in vendor's coolers, proper stacking and maintenance of appearance and display of malt beverages on vendor's shelves, price stamping of malt beverages on vendor's licensed premises, and moving or resetting any product or display in order to display a distributor's own product when authorized by the vendor. In 1977, Subsection 561.424(2), Florida Statutes, created an exception for in-store servicing of wine: Nothing in s. 561.42 or any other provision of the Alcoholic Beverage Law shall prohibit a distributor of wine from providing in- store servicing of wine sold by such distributor to a vendor. "In-store servicing" as used herein means: placing the wine on the vendor's shelves and maintaining the appearance and display of said wine on the vendor's shelves in the vendor's licensed premises; placing the wine not so shelved or displayed in a storage area designated by the vendor, which is located in the vendor's licensed premises; rotation of vinous beverages; and price stamping of vinous beverages in a vendor's licensed premises. This section shall not apply to distilled spirits. (Emphasis added) No similar statute was created to expressly authorize in-store servicing of distilled spirits by distributors. After the enactment of Section 561.423 and Subsection 561.424(2), Florida Statutes, there should have been little doubt that the Tied House Evil law was intended by the Legislature to prohibit in-store servicing of alcoholic beverages and that only by express exception was in-store servicing of beer and wine by distributors permitted.2/ The only evidence in the record that tends to explain why distilled spirits were treated differently from beer and wine with regard to in-store servicing is a statement made by Charles Bailes of ABC in a letter to Ms. Alsobrook that, "Historically, in-store servicing of perishable products such as wine and beer have been allowed so as to maximize freshness and minimize the chances of consumers purchasing spoiled merchandise." Mr. Bailes goes on to state that distilled spirits are not perishable. Florida Administrative Code Rule 7A-4.058 The main cause of the current confusion about in-store servicing of distilled spirits can be traced to a rule adopted by ABT in 1985. The year before, Subsection 561.42(12), Florida Statutes, was amended to add the following directive: The Division shall make reasonable rules governing promotional displays and advertising, which rules shall not conflict with or be more stringent than the federal regulations pertaining to such promotional displays and advertising furnished vendors by distributors and manufacturers. ABT responded by promulgating Florida Administrative Code Rule 7A-4.058, entitled "Promotional Displays and Advertising," effective January 2, 1985. The rule adopted certain federal regulations by reference: The Division adopts by reference the provisions of subpart D, Chapter 6, of Title 27, Code of Federal Regulations, regulations 6.81 through 6.101 inclusive. It shall be a violation of Section 561.42, F.S., for any vendor to accept or for any manufacturer or distributor to give a retailer promotional displays, advertising or other such items, services or assistance governed by the regulations adopted by subsection (1) when given in a manner not in strict conformity with the adopted regulations. Subpart D was entitled "Exceptions" and established exceptions to the federal Tied House Evil law. It included exceptions clearly related to promotional displays and advertising, such as "Product Displays," "Inside Signs," "Retailer Advertising Specialties," "Consumer Advertising Specialties," and "Advertising Services." However, Subpart D also included exceptions on subjects that did not appear to involve promotional displays or advertising, such as "Educational Seminars" (for the employees of vendors), "Participation in Retailer Association Activities," "Joint Ventures," "Coil Cleaning Service," and "Stocking, Rotation and Pricing Services." Section 6.99 of the federal regulations, entitled "Stocking, Rotation and Pricing Services," provided: Industry members may, at a retail establishment, stock, rotate and affix the price to distilled spirits, wine, or malt beverages which they sell, provided products of other industry members are not altered or disturbed. The rearranging or resetting of all or part of a store or liquor department is not hereby authorized. Because stocking, rotation, and pricing services are synonymous with in-store servicing, ABT's adoption of Section 6.99 by reference in Florida Administrative Code Rule 7A-4.058 authorized in-store servicing of distilled spirits by distributors and manufacturers in Florida, in apparent conflict with the governing statutes. The adoption by reference of Section 6.99 also conflicted with Section 561.423 and Subsection 561.424(2), Florida Statutes, because these statutes only authorized in-store servicing of beer and wine by distributors, but the federal regulation authorized in-store servicing by "industry members," a term that includes manufacturers. Soon after the adoption of Florida Administrative Code Rule 7A-5.048, ABT's 1986 compliance guidelines included a statement that "27 CFR 6.99 and F.S.S. 561.424" authorize "manufacturers or distributors of distilled spirits or wine to stock, rotate and affix the price to their products at a licensed retailer's premises." ABT's 1988, 1993, and 1995 compliance guidelines contained the same statement.3/ Promotional Displays and Advertising The term "promotional displays and advertising" is not defined in Chapter 561, Florida Statutes, but insight into the Legislature's intended meaning for the term can be gleaned from the 1985 amendment of Subsection 561.42(12), Florida Statutes. Following the sentence that directs ABT to adopt rules regarding promotional displays and advertising, the 1985 amendment added "provided, however," followed by eight new paragraphs dealing with specific situations involving promotional displays and advertising: If a manufacturer or distributor of malt beverage provides a vendor with expendable retailer advertising specialties such as trays, coasters, mats, menu cards, napkins, cups, glasses, thermometers, and the like, such items shall be sold at a price not less than the actual cost to the industry member who initially purchased them, without limitation in total dollar value of such items sold to a vendor. Without limitation in total dollar value of such items provided to a vendor, a manufacturer or distributor of malt beverage may rent, loan without charge for an indefinite duration, or sell durable retailer advertising specialties such as clocks, pool table lights, and the like, which bear advertising matter. If a manufacturer or distributor of malt beverage provides a vendor with consumer advertising specialties such as ashtrays, T-shirts, bottle openers, shopping bags, and the like, such items shall be sold at a price not less than the actual cost to the industry member who initially purchased them, but may be sold without limitation in total value of such items sold to a vendor. A manufacturer or distributor of malt beverage may provide consumer advertising specialties described in paragraph (c) to consumers on any vendor’s licensed premises. Coupons redeemable by vendors shall not be furnished by distributors of beer to consumers. Manufacturers or distributors of beer shall not conduct any sampling activities that include tasting of their product at a vendor’s premises licensed for off-premises sales only. Manufacturers and distributors of beer shall not engage in cooperative advertising with vendors. Distributors of beer may sell to vendors draft equipment and tapping accessories at a price not less than the cost to the industry member who initially purchased them, except there is no required charge, and a distributor may exchange any parts which are not compatible with a competitor’s system and are necessary to dispense the distributor’s brands. A distributor of beer may furnish to a vendor at no charge replacement parts of nominal intrinsic value, including, but not limited to, washers, gaskets, tail pieces, hoses, hose connections, clamps, plungers, and tap markers. None of the examples in the statute suggest that in-store servicing of alcoholic beverages comes within the Legislature's intended meaning of promotional displays and advertising. The common meanings of the words "stocking," "rotation," and "pricing" do not match up with the common meanings of the words "promotional displays" and "advertising." As noted above, there were other federal exceptions adopted by reference in Florida Administrative Code Rule 7A-4.058 that involved neither promotional displays nor advertising. ABT offered no explanation for the agency's indiscriminate adoption by reference of all the federal regulations in Subpart D, including those regulations that were not related to promotional displays and advertising. ABT now acknowledges that the 1985 rule was "non-compliant" with statutory law. TWM presented no evidence to show that stocking, rotation, and pricing are, as a matter of fact, forms of promotional displays or advertising. Instead, TWM argues that ABT's 1985 adoption by reference of Section 6.99 and ABT's subsequent representations that in-store servicing of distilled spirits was authorized in Florida, "determined" and "defined" in-store servicing as a promotional display or advertising. ABT changed its position sometime after 1995. In 1997, ABT repealed Florida Administrative Code Rule 7A-4.058 (which had been renumbered 61A-4.058). Although ABT replaced that rule with a new rule that regulated promotional displays and advertising, the new rule did not adopt any federal regulations by reference and the subject of stocking, rotation, and pricing services was abandoned, along with some of the other subjects covered by the federal regulations previously adopted by reference.4/ ABT's repeal of Florida Administrative Code Rule 61A-4.058 and its adoption of Florida Administrative Code Rule 61A-1.010 in 1977 was announced in public notices published in the Florida Administrative Weekly and through industry bulletins. Two public hearings were held on Florida Administrative Code Rule 61A-1.010, which were attended by industry representatives. The rule prohibited any gift from distributors or manufacturers to vendors that was not specifically identified in the rule or specifically authorized by statute. In-store servicing of distilled spirits is not listed in the rule and, as discussed above, is not specifically authorized by statute. In 1998, ABT issued an industry bulletin to industry representatives on the specific subject of in-store servicing. The bulletin notes that there is no statutory exception for in-store servicing of distilled spirits as there is for beer and wine and states that "Unauthorized services to a vendor would be considered a gift of financial assistance, unless the vendor paid for the services provided to them [sic]." The 1998 bulletin concludes by stating that because of the "confusion about these in-store servicing provisions," no enforcement action would be taken against a vendor, distributor, or manufacturer for unauthorized services provided before the date of the bulletin. After the 1997 repeal of Florida Administrative Code Rule 61A-4.058, the main cause of confusion on the subject of in-store servicing of distilled spirits had been removed. However, the 1998 bulletin and any other efforts ABT made to inform and educate the regulated industry about its change of position were not completely successful. In-store servicing of distilled spirits by distributors continues to some extent today.5/ ABT does not dispute that the prohibition of in-store servicing of distilled spirits has general statewide application and that rulemaking on the subject is not infeasible or impractical. ABT's position is that the prohibition of in-store servicing of distilled spirits does not require a rule because the prohibition is established by statute.
