09-001659 Department Of Business And Professional Regulation vs. Chic And Sassy Status: Closed Recommended Order on Monday, May 17, 2010.

Summary: Recommend that salon license be revoked for permitting unlicensed persons to cut hair and for sanitary regulation violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 09-1659

)

CHIC AND SASSY, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 10, 2010, an administrative hearing in this case

was held by video teleconference in Orlando and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: LeChea C. Parson, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-0792

For Respondent: Kwesi Korreh, Esquire

Post Office Box 2487

Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated January 9, 2009, the

Department of Business and Professional Regulation (Petitioner)

alleged that the Chic and Sassy salon (Respondent) had violated

certain sanitary and licensing requirements. The Respondent

filed a request for a formal administrative hearing. On

March 30, 2009, the Petitioner forwarded the request to the

Division of Administrative Hearings, which scheduled the formal

hearing for June 5, 2009.

At the June 5, 2009, hearing, the then-assigned

Administrative Law Judge (ALJ) granted a Motion to Continue at

the request of legal counsel, who appeared on behalf of the

Respondent. The hearing was thereafter scheduled and continued

several times due to a variety of conflicts and witness

unavailability. The case was transferred to the undersigned ALJ

on October 2, 2009.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits 1 through 14 admitted into

evidence. The Respondent presented no testimony or witnesses.

The Transcript of the hearing was filed on April 14, 2010.

Both parties filed Proposed Recommended Orders that have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a Florida-licensed cosmetology salon, holding license CE-84418,

located at 2702-B Silver Star Road, Orlando, Florida 32818.

2. On April 11, 2008, Evelyn Williams, an inspector

employed by the Petitioner, conducted a routine inspection of

the Respondent.

3. During the inspection, Ms. Williams observed three

individuals, identified as O'Brian Breedlove, Charley James

Hawks, and Shawn Johnson, using clippers to cut the hair of

salon customers.

4. Mr. Breedlove is a Florida-licensed hair braider,

holding license number HB4110.

5. Mr. Hawks is a Florida-licensed hair braider, holding

license number HB4217.

6. Mr. Johnson is a Florida-licensed hair braider, holding

license number HB3935.

7. A licensed hair braider is essentially authorized only

to weave or interweave human hair and is not allowed to perform

hair-cutting.

8. Mr. Breedlove, Mr. Hawks, and Mr. Johnson were

operating outside the scope of their licenses when Ms. Williams

observed each man using clippers to cut the hair of the salon's

customers.

9. Ms. Williams additionally observed that photographs of

Mr. Hawks and Mr. Johnson were not displayed with their

licenses.

10. During the inspection, Ms. Williams observed that the

hair-cutting tools in use at the salon were not being properly

disinfected or stored. Sterilizers contained excessive amounts

of accumulated hair. Some combs, brushes, and clippers were

kept in a drawer that contained used neck strips and other paper

products, as well as personal items including cash. Some hair-

cutting tools were left on top of workstation counters rather

than contained within closed storage drawers.

11. There was excessive accumulated hair on the floor and

baseboards, as well as around the workstations.

12. The Respondent's most recent health inspection report

was not conspicuously displayed near the front entrance of the

salon.

13. The lavatory at the salon was not in good repair. A

sink was leaking, and a bucket had been placed underneath the

sink to catch leaking water. There were no sanitary towels

present, and no mechanical hand dryer was provided.

Ms. Williams noted the strong smell of urine in the lavatory and

observed that the ventilation appeared to be inadequate.

14. The owner of the Respondent was not present at the

time of the inspection.

15. Ms. Williams prepared a report of her inspection and

presented a copy of the report to Mr. Breedlove.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

17. The Petitioner is the state agency charged with the

regulation of cosmetology salons in the State of Florida. See

Ch. 477, Fla. Stat. (2009).

18. The Petitioner has the burden of proving the

allegations set forth in the Administrative Complaint by clear

and convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). The burden has been

met.

19. It is unlawful for any person to own, operate,

maintain, open, establish, conduct, or have charge of, either

alone or with another person or persons, a cosmetology salon or

specialty salon in which a person not licensed or registered as

a cosmetologist or a specialist is permitted to perform

cosmetology services or any specialty. See § 477.0265(1)(b)2.,

Fla. Stat. (2008).

20. Section 477.013, Florida Statutes (2008), provides, in

relevant part, as follows:

477.013 Definitions.--As used in this

chapter:

* * *

(3) "Cosmetologist" means a person who is

licensed to engage in the practice of

cosmetology in this state under the

authority of this chapter.

(4) "Cosmetology" means the mechanical or

chemical treatment of the head, face, and

scalp for aesthetic rather than medical

purposes, including, but not limited to,

hair shampooing, hair cutting, hair

arranging, hair coloring, permanent waving,

and hair relaxing for compensation. This

term also includes performing hair removal,

including wax treatments, manicures,

pedicures, and skin care services.

* * *

(9) "Hair braiding" means the weaving or

interweaving of natural human hair for

compensation without cutting, coloring,

permanent waving, relaxing, removing, or

chemical treatment and does not include the

use of hair extensions or wefts.

21. Subsection 477.029(1), Florida Statutes (2008),

provides, in relevant part, as follows:

It is unlawful for any person to:

(a) Hold himself or herself out as a

cosmetologist, specialist, hair wrapper,

hair braider, or body wrapper unless duly

licensed or registered, or otherwise

authorized, as provided in this chapter.

* * *

(c) Permit an employed person to practice

cosmetology or a specialty unless duly

licensed or registered, or otherwise

authorized, as provided in this chapter.

* * *

(h) Violate any provision of s. 455.227(1),

s. 477.0265, or s. 477.028.

(i) Violate or refuse to comply with any

provision of this chapter or chapter 455 or

a rule or final order of the board or the

department.

22. The evidence establishes that the Respondent permitted

licensed hair braiders to perform hair-cutting services in

violation of Subsections 477.0265(1)(b)2. and 477.029(1)(c),

Florida Statutes (2008).

23. Florida Administrative Code Rule 61G5-20.002 provides,

in relevant part, as follows:

61G5-20.002 Salon Requirements.

(1) Prior to opening a salon, the owner

shall:

* * *

(c) Meet the safety and sanitary

requirements as listed below and these

requirements shall continue in full force

and effect for the life of the salon:

1. Ventilation and Cleanliness: Each salon

shall be kept well ventilated. The walls,

ceilings, furniture and equipment shall be

kept clean and free from dust. Hair must

not be allowed to accumulate on the floor of

the salon. Hair must be deposited in a

closed container. Each salon which provides

services for the extending or sculpturing of

nails shall provide such services in a

separate area which is adequately ventilated

for the safe dispersion of all fumes

resulting from the services.

2. Toilet and Lavatory Facilities: Each

salon shall provide-–on the premises or in

the same building as, and within 300 feet

of, the salon-–adequate toilet and lavatory

facilities. To be adequate, such facilities

shall have at least one toilet and one sink

with running water. Such facilities shall

be equipped with toilet tissue, soap

dispenser with soap or other hand cleaning

material, sanitary towels or other hand-

drying device such as a wall-mounted

electric blow dryer, and waste receptacle.

Such facilities and all of the foregoing

fixtures and components shall be kept clean,

in good repair, well-lighted, and adequately

ventilated to remove objectionable odors.

* * *

(2) Each salon shall comply with the

following:

* * *

(d) Sanitizers: All salons shall be

equipped with and utilize wet sanitizers

with hospital level disinfectant or EPA

approved disinfectant, sufficient to allow

for disinfecting practices.

1. A wet sanitizer is any receptacle

containing a disinfectant solution and large

enough to allow for a complete immersion of

the articles. A cover shall be provided.

2. Disinfecting methods which are effective

and approved for salons: First, clean

articles with soap and water, completely

immerse in a chemical solution that is

hospital level or EPA approved disinfectant

as follows:

a. Combs and brushes, remove hair first and

immerse in hospital level or EPA approved

disinfectant;

* * *

(e) After cleaning and disinfecting,

articles shall be stored in a clean, closed

cabinet or container until used.

Undisinfected articles such as pens,

pencils, money, paper, mail, etc., shall not

be kept in the same container or cabinet.

For the purpose of recharging, rechargeable

clippers may be stored in an area other than

in a closed cabinet or container, provided

such area is clean and provided the cutting

edges of such clippers have been

disinfected.

24. The evidence establishes that the Respondent violated

Florida Administrative Code Rule 61G5-20.002(1)(c)1., related to

cleanliness of the salon, and thereby violated Subsection

477.029(1)(i), Florida Statutes (2008).

25. The evidence establishes that the Respondent violated

Florida Administrative Code Rule 61G5-20.002(1)(c)2., related to

toilet and lavatory facilities in the salon, and thereby

violated Subsection 477.029(1)(i), Florida Statutes (2008).

26. The evidence establishes that the Respondent violated

Florida Administrative Code Rule 61G5-20.002(2)(d) and (e),

related to sanitation, disinfection, and storage of equipment,

and thereby violated Subsection 477.029(1)(i), Florida Statutes

(2008).

27. Florida Administrative Code Rule 61G5-20.004 provides,

in relevant part, as follows:

61G5-20.004 Display of Documents.

(1) All holders of a cosmetology or

specialty salon license shall display within

their salons in a conspicuous place which is

clearly visible to the general public upon

entering the salon the following documents:

(a) The current salon license,

(b) A legible copy of the most recent

inspection sheet for the salon.

(2) All holders of a cosmetology or

specialty salon license shall require and

ensure that all individuals engaged in the

practice of cosmetology, any specialty, hair

braiding, hair wrapping, or body wrapping

display at the individual’s work station

their current license or registration at all

times when the individual is performing

cosmetology, specialty, hair braiding, hair

wrapping, or body wrapping services. The

license or registration on display shall be

the original certificate or a duplicate

issued by the Department and shall have

attached a 2'' by 2'' photograph taken

within the previous two years of the

individual whose name appears on the

certificate. The certificate with

photograph attached shall be permanently

laminated as of July 1, 2007.

28. The evidence establishes that the Respondent violated

Florida Administrative Code Rule 61G5-20.004(1)(b) by failing to

conspicuously display the salon's most recent inspection sheet

and thereby violated Subsection 477.029(1)(i), Florida Statutes

(2008).

29. The evidence establishes that the Respondent violated

Florida Administrative Code Rule 61G5-20.004(2) by failing to

require that all employees display photographs along with their

licenses and thereby violated Subsection 477.029(1)(i), Florida

Statutes (2008).

30. The Respondent has asserted that it did not receive

the inspection report, had no notice of the alleged violations,

and had no opportunity to challenge the Administrative

Complaint. Although the Respondent was not present during the

inspection, the Respondent clearly had notice of the allegations

and requested an administrative hearing to challenge them. The

previously assigned ALJ granted an ore tenus request to continue

the hearing at the June 5, 2009, commencement of the proceeding,

and more than sufficient time elapsed from that date upon which

to resolve any questions related to the allegations at issue in

this case. The opportunity to challenge the allegations was the

reason for which an administrative hearing was conducted, when

the Petitioner presented the witnesses and exhibits in support

of their Administrative Complaint. The Respondent offered

nothing to refute the testimony and evidence presented by the

Petitioner, which has been fully credited.

31. Subsection 477.029(2), Florida Statutes (2008),

provides, in relevant part, as follows:

477.029 Penalty.--

* * *

(2) Any person who violates the provisions

of this section shall be subject to one or

more of the following penalties, as

determined by the board:

(a) Revocation or suspension of any license

or registration issued pursuant to this

chapter.

(b) Issuance of a reprimand or censure.

(c) Imposition of an administrative fine

not to exceed $500 for each count or

separate offense.

(d) Placement on probation for a period of

time and subject to such reasonable

conditions as the board may specify.

(e) Refusal to certify to the department an

applicant for licensure.

32. The Administrative Complaint in this case contained

four separate counts, three of which were related to the three

persons performing hair-cutting services outside the scope of

their licenses, and a fourth that referenced the sanitation

violations.

33. In part, the Petitioner's Proposed Recommended Order

seeks a fine of $750 per count based on "aggravating factors,"

but Subsection 477.029(2), Florida Statutes (2008), makes no

provision for aggravation of the penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Board of Cosmetology, enter a final

order, stating that the Respondent violated the statutes and

rules referenced herein; imposing a $3,000 administrative fine;

and revoking the Respondent's cosmetology licensure.

DONE AND ENTERED this 17th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May, 2010.

COPIES FURNISHED :

LeChea C. Parson, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-0792

Kwesi Korreh, Esquire

Post Office Box 2487

Orlando, Florida 32802

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Robyn Barineau, Executive Director

Division of Professions

Board of Cosmetology

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.