The Issue Whether Respondent violated Section 476.01(5), Florida Statutes, by employing persons to work as barbers who were unlicensed as barbers. Whether Respondent's license should be revoked, annulled, withdrawn or suspended for such alleged violation.
Findings Of Fact A notice of violation was served on Respondent, owner of the University Plaza Barber and Style Salon, charging him with violating Section 476.01(6), Florida Statutes, which statute prohibits any person to hire or employ any person to practice barbering without a valid certificate of registration. The Administrative Complaint served on Respondent charges Respondent: "You have employed unlicensed barbers or apprentices to work as barbers in your shop". The Respondent had people working in his shop not registered as barbers but who were registered as cosmetologists and who were working as cosmetologists. Respondent operates a single shop registered as a barber shop and as a registered cosmetologist shop. He is a licensed barber and a licensed master cosmetologist. At the time of the notice of violation the sign in the front of the shop indicated only barber shop. At the time of hearing the sign indicated barber and beauty salon retain center. At the time of the violation notice Respondent did not have a partition in his shop that separated the barber shop from the area in which the cosmetologists worked. At the time of hearing a partition was in existence. Respondent presently has two barber chairs in one partitioned-off area and an area in which six licensed cosmetologists work. Each partitioned area has a separate door but the shop itself has one door leading into a waiting room.
Findings Of Fact Mr. R. H. Carswell, the Respondent, is the owner-operator and manager of Carswell's Marina Barber Shop, City Marina, Panama City, Florida. The subject shop has a sign denoting the fact that there is a beauty shop and a barber shop in the building. (a) A floor plan has been submitted to the Florida State Board of Barbers' Sanitary Commission as required by Section 472.24(6), Florida Statutes, to partition a barber shop section from a beauty shop section. No approval of said plan has been issued in writing. A plexiglass partition separates the barber area from the cosmetology area. There was a person working in subject barber shop who is a licensed cosmetologist but is not licensed as a barber. This person has been practicing the art of cosmetology. There are persons working in subject barber shop who are not practicing the art of barbering.
The Issue The issue in this case is whether Respondent's licenses as a cosmetologist and cosmetology salon owner in the State of Florida, should be suspended, revoked or otherwise disciplined for the alleged violations of Chapter 477, Florida Statutes, 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. The Respondent is a licensed cosmetologist in the State of Florida, holding license number CL 141038. From April 13, 1987 until October 31, 1990, Respondent also held a license as a cosmetology salon owner, license number CE 0044081. The salon license expired on October 31, 1990 and was not renewed for the 1990-1992 period because the check submitted for payment of the renewal fee was dishonored by the bank for insufficient funds. This case is related to a separate administrative proceeding brought against Veronica Bonani, DPR Case Number 90-4671. In that case, Ms. Bonani was found by the Florida Board of Cosmetology to have been employed by the Respondent as a cosmetologist without a Florida license from January 3, 1990 to March, 1990. After conceding the allegations in that case, Ms. Bonani was fined one hundred dollars ($100). Petitioner has suggested that the complaint against Veronica Bonani was initiated by Respondent, apparently in retribution for Ms. Bonani's terminating her employment with Respondent to take another job. At the hearing in this cause, the Respondent denied that she reported Ms. Bonani to the Department. While this dispute has little bearing on the main issues in this proceeding, the more persuasive evidence was that Respondent reported Ms. Bonani to Petitioner after Ms. Bonani left her employment. The evidence established that the Respondent employed Veronica Bonani as a cosmetologist without a Florida license from January 3, 1990 to March, 1990. Veronica Bonani began seeking licensure by endorsement in Florida sometime in the Fall of 1989. Because of some problems in obtaining the necessary documentation, she experienced delays in obtaining a license. Her formal application for licensure in Florida is dated February 6, 1990 and was filed with Petitioner on February 15, 1990. Veronica Bonani did not receive authorization to practice as a cosmetologist in Florida until April 13, 1990. However, as indicated above, Ms. Bonani began working for Respondent in early January, 1990. Prior to beginning work for Respondent, Ms. Bonani advised Respondent that she was in the process of obtaining a Florida license, but was not yet licensed to practice cosmetology in the State of Florida. Respondent encouraged her to begin work anyway. When an inspector employed by Petitioner entered the Respondent's salon on February 22, 1990, the Respondent instructed Ms. Bonani to hide. However, Ms. Bonani openly revealed her status to the inspector. The inspector indicated during his February 22, 1990 visit that there was no problem with Ms. Bonani's employment since her application was pending and approval seemed imminent. This conclusion was erroneous. Respondent contends that she believed Ms. Bonani was entitled to begin work in Florida since she was in the process of obtaining licensure. However, there was no justifiable basis for Respondent to believe it was legal to employ Ms. Bonani in January, 1990. Indeed, the evidence and circumstances in this case indicate that Respondent was well aware that Ms. Bonani should not have been practicing prior to issuance of her Florida license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Cosmetology enter a Final Order finding Respondent guilty of violating Sections 477.0265(1)(b)(2), 477.0265(1)(d), 477.029(1)(c) and 477.029(1)(h), Florida Statutes, imposing an administrative fine of three hundred dollars ($300) and allowing the Respondent to pay this amount in three (3) payments. DONE and ENTERED this 18th day of March, 1992, 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 18th day of March, 1992. APPENDIX TO RECOMMENDED ORDER Only Petitioner submitted proposed findings of fact. The following constitutes my rulings on those proposals. 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. Subordinate to Findings of Fact 1. Subordinate to Findings of Fact 2. Subordinate to Findings of Fact 3 and 4. Subordinate to Findings of Fact 4, 5, 6 and 7. Copies furnished: Renee Alsobrook, Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven Lulich P.O. Box 1390 Sebastian, Florida 32978 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton, Executive Director Department of Professional Regulation/Board of Cosmetology Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Hair and Company currently holds License No. CE 0024217 and is a business at 1930 Hallandale Boulevard, Hallandale, Florida Respondent Ettie Studnik is the wife of the owner of Hair and Company and the bookkeeper and manager of the salon. Three (3) employees of the Respondent salon, Elena Sirak, Jethsabel Morales and Arelis Penton, were not licensed cosmetologists during the period of time pertinent to this hearing between November, 1979 and February 20, 1980. On November 27, 1979 an investigator employed by Petitioner Department, Providence J. Padrick, issued a notice of violation to Respondent Studnik for permitting an unlicensed person, Elena Sirak, to shampoo the heed of a paying customer. Sirak was also given a notice of violation. (Transcript, pages 10 through 12). Thereafter, upon a second inspection of the salon on February 20, 1980, Padrick found the same employee again giving a paying customer a shampoo. Two (2) other unlicensed persons employed by Respondent salon were also performing shampoos for paying customers. Padrick issued notices of violation to Morales and Penton, but Sirak left the salon before she could issue a second notice of violation to her. A second notice of violation was issued to Respondent Ettie Studnik as owner of the salon. The three (3) unlicensed employees of the Respondent salon were students at local beauty schools and were employed by Respondent Studnik for cleaning the salon. They were permitted to shampoo customers at times when there were numerous customers waiting in the salon to he served. (Transcript, pages 11, 12. 27, 29. 32 and 33) At the time of the first inspection in November, 1979 Padrick discussed the violation with Respondent Studnik, who represented herself as the owner of Hair and Company, and told her that unlicensed persons were not allowed to shampoo the paying customers. During the hearing the owner of Hair and Company, Neal Studnik, stated that Respondent Ettie Studnik is his wife and operates the salon in his absence. Respondent Studnik acted in behalf of the owner, under his supervision and with his consent at the time pertinent to the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered censuring the owner of the Respondent Hair and Company and assessing a civil penalty not to exceed $500.00. DONE and ORDERED this 24th day of June, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1981. COPIES FURNISHED: Drucilla E Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael H. Weisser, Esquire Skylake State Bank Building 1550 NE Miami Gardens Drive North Miami Beach, Florida 33179 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint dated January 29, 2004, and if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following facts were established: Petitioner is the state agency charged with regulating the operation of establishments providing cosmetology services, including hair care and styling, to the public. Petitioner's regulatory authority derives from Chapter 477, Florida Statutes. Respondent has at all times material to this case been subject to Petitioner's jurisdiction by virtue of its license to operate Mayelin Unisex Beauty Salon (Respondent or Mayelin), a hair salon located in North Miami Beach, Florida. At all times material to this case, Respondent was under a legal duty to refrain from permitting unlicensed individuals to perform cosmetology services, including hair care, upon members of the public. On or about April 26, 2003, Abdel Cedeno (Cedeno), a duly-qualified inspector employed by Petitioner and whose job includes monitoring compliance with Chapter 477, Florida Statutes, went to Mayelin's during its regular business hours for the purpose of conducting a routine inspection. On that occasion, Cedeno observed one Yomaira Payero (Payero) performing cosmetology services on a customer. More specifically, Payero was observed styling or arranging the customer's hair, utilizing a blow-dryer and other cosmetology implements. Payero was not licensed to perform such services within Florida. At all times material to this case, Payero was a paid employee of Respondent. Payero's activities, which Respondent authorized and facilitated, constituted a violation by Respondent of Section 477.0265(1)(d), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assessing Respondent an administrative penalty in the amount of $500. DONE AND ENTERED this 8th day of April, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 8th day of April, 2005. COPIES FURNISHED: Juana Blanco Mayelin Castillo Mayelin Unisex Beauty Salon 16551 Northeast 8th Avenue North Miami Beach, Florida 33162 Renee Alsobrook, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1015 Julie Malone, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
