Findings Of Fact Mrs. Marge Edwards, Inspector with the Florida State Board of Cosmetology, issued a notice of violation citing Respondent for "owner leaving one cosmetologist, one student permit working alone". The time of the violation notice was dated 2:10 p.m. on June 1, 1974. Respondent George D'Zanko was out of the George D's beauty salon, a business which he owns and operates as the master cosmetologist on June 1, 1974 during the hours which includes 2:10 p.m. Mr. D'Zanko admits that he was out of the shop at that time. Respondent entered a motion to dismiss contending that Chapter 477, Florida Statutes, did not require his presence in the shop while the cosmetologists were working therein. Section 477.04, Florida Statutes, states "no registered cosmetologists may independently practice cosmetology, but he may as a cosmetologist do any or all of the acts constituting the practice of cosmetology under the immediate personal supervision of a registered master cosmetologist". The attorney for Respondent D'Zanko equates Chapter 476, Florida Statutes, which regulates barbers with Chapter 477, Florida Statutes, which regulates cosmetologists, and cites Lett vs. Florida Barbers Salary Commission, Fla. App. 247 So.2d 335, for his position that inasmuch as Respondent was in the neighborhood of the salon the actual presence of Respondent was not necessary. The Board contends that the Respondent allowed a cosmetologist to practice cosmetology without the presence and supervision of a master cosmetologist in violation of Chapter 477, Florida Statutes. The Board contends that the presence of a master cosmetologist in a salon where the art of cosmetology is being practiced is a protection for the public and that Respondent allowed his shop to be operated without the supervision of a master cosmetologist. That the license of the Respondent should be revoked, annulled, withdrawn or suspended. The Hearing Officer finds: That Chapter 477, Florida Statutes, requires that a master cosmetologist be present in a cosmetology salon at all times when the art of cosmetology is being practiced; That Respondent George D'Zanko, the owner of the salon, Styles by George D', Inc., allowed cosmetology to be practiced in his salon at a time when there was no master cosmetologist therein; That the direct supervision of a master cosmetologist is a protection for the customers in the application of materials used in practicing the art of cosmetology.
The Issue Whether Respondent's cosmetology license should be disciplined for the alleged violation of Chapter 477, Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Maureen Mitchell, was a licensed cosmetologist in the State of Florida having been issued License No. CL0079246 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was employed at Barry's Place for Hair, a cosmetology salon located in Tamarac, Florida (the "Salon"). On January 22, 1990, Karen Olszewski went to the Salon for a permanent. Ms. Olszewski had previously had permanents without any problems or complications. Respondent was the cosmetologist who gave Ms. Olszewski the permanent on January 22, 1990. After Respondent rolled Ms. Olszewski's hair, she applied the permanent solution in accordance with the manufacturer's instructions. Within a minute after applying the solution, Ms. Olszewski complained that it was burning her scalp. Respondent told her that the solution was heat activated and there was nothing wrong. Ms. Olszewski complained at least two other times while the solution remained in her hair. Respondent did not take any actions to relieve the discomfort. Barry Barton, the owner of the Salon, looked under the bag that had been placed on Ms. Olszewski's head and stated that he did not see any problems. The chemicals remained on Ms. Olszewski's head and scalp for approximately 5 to 10 minutes in accordance with the manufacturer's instructions. When the recommended time had expired, Respondent shampooed Ms. Olszewski's hair. During the rinse, Ms. Olszewski again complained of pain. Barry Barton applied cold cream to the customer's scalp. The application of cold cream to an irritated scalp is not an accepted precaution or remedy for a chemical burn. Respondent did not properly respond to the client's continued complaints of discomfort. Respondent should have immediately stopped the procedure being performed and checked for redness or irritation of the scalp. If the search revealed any indications of a chemical irritation or a burn or if the complaints of discomfort continued, the chemical should have been immediately rinsed with cool water and a neutralizer applied. After leaving the Salon, Ms. Olszewski continued to experience discomfort. She called the Salon and the owner advised her that there was nothing that he could do. Ms. Olszewski went to a dermatologist who treated her for chemical burns on her scalp which were the result of the permanent. Ms. Olszewski experienced some temporary hair loss and had headaches for a couple of weeks following the permanent. There is no scarring or long term damage to her scalp. Respondent's conduct falls below the minimally accepted standards of a licensed cosmetologist. While there is no evidence that Respondent misapplied the chemicals or otherwise failed to follow the manufacturer's instructions, Respondent should have reacted more promptly to the customer's complaints of discomfort and terminated the procedure at an earlier point. Respondent did not make voluntary restitution to Ms. Olszewski for the cost of the permanent or the cost of the medical bills incurred. Ms. Olszewski initiated an action in small claims court for the sums. No evidence was presented as to the results of that legal action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding Respondent guilty of a violation of Section 477.028, Florida Statutes, imposing a $200 fine and requiring Respondent to complete an advanced training course on the use of chemicals in the practice of cosmetology. RECOMMENDED this 9th day of September, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2659 The Petitioner has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Petitioner. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 3 and 4. Adopted in substance in Findings of Fact 3 - 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 9. Addressed in the Conclusions of Law. COPIES FURNISHED: Mark Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Maureen Mitchell, pro se 8100 Northwest 73rd Terrace Tamarac, Florida 33321 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton, Executive Director Department of Professional Regulation Board of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondents operated their cosmetology salon in violation of the rule then in effect in which each cosmetology salon owner or manager should send to the Board every five (5) years a certificate from a licensed electrician showing that the electrical equipment in said salon is in safe operating condition. Regulation 21F-3.02, of the rules and regulations of the State Board of Cosmetology. Whether Respondents' license should be revoked, annulled, withdrawn or suspended.
Findings Of Fact The witness and Respondents were duly sworn. The Notice of Service and Complaint were entered without objection and marked Exhibit 1. The Election of Remedies and Electrical Certificate were entered into evidence as Exhibit 2 without objection. Respondents held a license as required by Board of Cosmetology Rule 21F-3.02, which was dated 1969. A notice of violation was written up by the Board at the five-year expiration of said license which was in 1974. Since the writing of the violation notice, the Board has rescinded the rule requiring an electrical certificate and Respondnets not having procured a certificate in a timely fashion did not then attempt to secure said certificate inasmuch as the rule had been rescinded.
The Issue Respondent's alleged violation of Section 477.02(6), Florida Statutes. Upon Motion of Petitioner, the name of the President of Respondent firm as shown in the Administrative Complaint was amended to reflect his correct name, Alfred Ditraglia.
Findings Of Fact Respondent Corporation holds Certificate of Registration Number 21624 to operate a cosmetology salon which was issued on May 8, 1975, by Petitioner. (Stipulation). On July 15, 1975, Petitioner's inspector visited Respondent's place of business and observed Carmen Victoria Jackson washing a customer's hair. On July 29, 1975, he observed her doing the same thing. She had informed him on July 15th that she had no state license. On July 29th she told him that the shampoo girl had not shown up for work and that is why she was washing a customer's hair. (Testimony of Rubin). At the hearing, the employee testified that she had not been shampooing on either occasion mentioned by Petitioner's inspector. She asserted that on July 15th a customer had merely asked her to pass a towel to her and that while she was doing so the Inspector entered the store. She claimed that on July 29th although customers were in the store, she was not working on them, but was merely taking towels to the back of the premises to wash them. (Testimony of Jackson).
Recommendation That Respondent's Certificate of Registration Number 21624 to operate a cosmetology salon be suspended for a period of 30 days under the authority of Section 477.15(8), for violation of Section 477.02(6), Florida Statutes. DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire P.O. Box 1752 Tallahassee, Florida Alfred Ditraglia, President Al Stephens, Inc. 425 Hollywood Mall Hollywood, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA STATE BOARD OF COSMETOLOGY IN RE: FLORIDA STATE BOARD OF COSMETOLOGY, Petitioner, vs. CASE NO. 76-1053 SALON LICENSE NO. 21624 ALFRED DITKOGLIA, PRESIDENT, AL STEPHENS, INC., Respondent. / FINAL AGENCY ORDER The Florida State Board of Cosmetology adopts as part of the Agency's Final Order the conclusions of law, interpretation of administrative rules and findings of fact dated July 28, 1976, a copy of which is attached hereto and incorporated herein by reference. The State Board of Cosmetology, having reviewed the recommended penalty of the hearing examiner and considering the circumstances of this case, the State Board of Cosmetology feels that the recommended penalty is appropriate and therefore adopts the recommended penalty and imposes a suspension of the salon license of the Respondent for a period of thirty (30) days. That the suspension shall be effective beginning on the first day of October, 1976, and shall terminate on October 30, 1976. That the Respondent shall deliver its license no. 21624 covered by this suspension by certified mail, return receipt requested, prior to the effective date of the suspension and the said license will be available for re-delivery to the Respondent at the State Board Administrative Office, 301 Avenue A, Southwest, Winter Haven, Florida, or will either he mailed at the option of the Respondent on the last day of the suspension period. ENTERED this 27th day of August, 1976. Violet Llaneza, Chairman Florida State Board of Cosmetology Copies Mailed To: Alfred Ditkoglia, President Al Stephens, Inc. 425 Hollywood Mall Hollywood, Florida Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida =================================================================
The Issue The Respondent's alleged violation of Section 477.02(1)&(3), Florida Statutes, and Rule 21F-3.10, Florida Administrative Code.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the alleged violations against the Respondent be dismissed. DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1976. COPIES FURNISHED: Ronald C. LaFace, Esquire P. O. Box 1752 Tallahassee, FL 32302 Ms. Herta Hill 126 S. W. 49th Street Cape Coral, FL
