95-001354 Board Of Cosmetology vs. Eugene Eubanks, D/B/A La' Moods Status: Closed Recommended Order on Tuesday, July 25, 1995.

Summary: Owner of salon responsible for the unsanitary condition of a work area in salon and failure to display a current inspection report.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS and )

PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 95-1354

) DBPR CASE NO. 94-17965

EUGENE EUBANKS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Notice was provided and on June 6, 1995 a formal hearing was held in this

case. Authority for conducting the hearing is set forth in Section 120.57(1),

Florida Statutes. The hearing location was Jacksonville, Florida. The Hearing

Officer was Charles C. Adams.

APPEARANCES

For Petitioner: James E. Manning

Qualified Representative

Department of Business

and Professional Regulation

1940 North Monroe Street

Northwood Centre, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Eugene Eubanks, Pro se

1443 Raven Drive

Jacksonville, Florida 32218

STATEMENT OF ISSUES

Did Respondent fail to meet required sanitary standards in a cosmetology

salon in which he was the owner and/or operator? In particular, did Respondent

fail to maintain sanitary standards in that:

a. All cleanse/disinfectant equipment was not stored in clean closed

cabinets/container under ultra violet irradiation;

b. Undisinfected articles not kept in same storage areas as articles

sanitized;

c. Most current inspection sheet not conspicuously displayed.

PRELIMINARY STATEMENT

Following an inspection which was conducted on October 27, 1994, Respondent

was cited for the sanitation violations referred to before. Rather than pay a

fine in response to the citation, Respondent elected to proceed to a Section

120.57(1), Florida Statutes hearing. On March 16, 1995, Petitioner requested

that the Division of Administrative Hearings appoint a hearing officer to

conduct the formal hearing. That appointment was made and the hearing was

conducted on the aforementioned date.

Having elected to proceed to a formal hearing, an administrative complaint

was drafted in DPBR Case No. 94-17965 formally charging Respondent with the

sanitation violations.

On May 5, 1995, an order was entered qualifying James E. Manning to

represent Petitioner in this case.

At hearing Petitioner presented the witness Carol Engels and two exhibits

which were received. Respondent testified in his own behalf.

Official recognition is made of Chapter 61G, Florida Administrative Code.

This follows the supplemental filing in which a correlation has been drawn

between the previous Chapter 21F, Florida Administrative Code and Chapter 61G,

Florida Administrative Code. That filing was made on June 9, 1995. At the time

the supplemental filing was made, a copy of that filing was provided to

Respondent. The reason for this comparison concerns the fact that information

that had been provided to the Respondent related to his obligations as a

licensee in accordance with Chapter 21F, Florida Administrative Code which

became Chapter 61G, Florida Administrative Code. Official recognition was also

made of Chapter 477, Florida Statutes.

A hearing transcript was filed on June 23, 1995. Petitioner timely

submitted a proposed recommended order. Respondent has not submitted a proposed

recommended order. The fact findings suggested in the Petitioner's proposed

recommended order are addressed in an appendix to the recommended order.

FINDINGS OF FACT

1. Respondent is a licensed cosmetologist in the State of Florida. His

license number is CL-0114757.

2. At times relevant to the inquiry, Respondent was the owner and/or

operator of a cosmetology salon named La'Moods. At times relevant, the license

number for La'Moods was CE-0058354. At times relevant that salon was located in

Jacksonville, Florida.

3. Carol Engels is an inspector for the Petitioner. In performing her

duties she routinely inspects cosmetology salons.

4. Ms. Engels made a routine inspection of La'Moods on October 27, 1994.

5. While the inspection was being conducted, the salon was open for public

business.

6. At that time, Chester Akins, a cosmetologist at the salon was combing a

customer's hair.

7. Ms. Engels inspected Mr. Akins' work area. In the Akins' work area

there were loose hair cuttings. There was clutter on the top of a counter in

the work area. When that clutter was moved by Ms. Engels, several cockroaches

crawled out onto the work station. In addition, Ms. Engels observed a number of

"gobs" of hair and greasy combs in that part of the work area that is referred

to as a "clean area".

8. Reference the cosmetologist's obligations to be performed after each

customer leaves, the combs should be washed with soap and water and then

disinfected for about 20 minutes and then stored in the clean area. In this

instance, the clean area for Mr. Akins' work station was a drawer and that

drawer had loose hair, greasy combs with hair in them, and dirty brushes in it.

The drawer also had Mr. Akins' personal effects, some papers such as receipts,

keys and money. The receipts, keys and paper should not have been in the clean

area.

9. Respondent was not in attendance when the inspection commenced. He

came to the salon before the inspection was concluded. He did not observe the

clean area at the Akins' work station on the date the inspection was made.

10. The inspection sheet concerning the prior inspection that had been

performed was not conspicuously displayed on October 27, 1994. It had been

moved from a conspicuous location to the shampoo area. Respondent surmises that

the inspection sheet had been placed there by a cleaning crew. This was not the

first occasion in which the prior inspection sheet was not conspicuously

displayed. Respondent had been cited for violations of not having prior

inspection sheets conspicuously displayed because the inspection sheet had

fallen off the wall or been moved by persons cleaning the salon.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over this

subject matter and the parties to this action pursuant to Section 120.57(1),

Florida Statutes.

12. Section 477.029(1)(i), Florida Statutes, makes it a violation for a

cosmetologist to violate rules related to the practice of cosmetology.

Petitioner must prove the allegations in the administrative complaint by

clear and convincing evidence. See Ferris v. Turlington, 570 So.2d 292 (Fla.

1987).

13. Rule 61G5-20.004(2)(e), Florida Administrative Code states:

Each salon shall comply with the following:

...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...

14. The combs in the Akins' clean area, had not been cleaned and were not

stored in a clean container. In addition, money, paper and keys were placed in

the same drawer. By these circumstances Rule 61G5-20.004(2)(c), Florida

Administrative Code has been violated.

15. Rule 61G5-20.004(3), Florida Administrative Code, requires licensees

to display for public viewing, in a conspicuous place, the latest inspection

sheet referred to in the fact finding as the prior inspection sheet.

16. When inspection was made, the latest inspection sheet was not

displayed for public viewing in a conspicuous place. Thus, Rule 61G5-20.004(3),

Florida Administrative Code, was violated.

17. As owner/operator Respondent is responsible for these violations that

have been proven by clear and convincing evidence.

18. In accordance with Rule 61G5-30.001(1)(j), Florida Administrative

Code, a $250.00 administrative fine is an appropriate punishment for the

violations.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is,

RECOMMENDED:

That a Final Order be entered making Respondent responsible for the

violations found and fining Respondent $250.00.

DONE and ENTERED this 25th day of July, 1995, in Tallahassee, Florida.

___________________________________

CHARLES C. ADAMS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of July, 1995.

APPENDIX

The following discussion is given concerning the Petitioner's proposed

findings of fact:

Those facts are subordinate to facts found in the Recommended Order.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director

Board of Cosmetology

Department of Business

and Professional Regulation

1940 No. Monroe Street

Northwood Centre, Suite 60

Tallahassee, FL 32399-0790

Lynda L. Goodgame, General Counsel

Department of Business

and Professional Regulation

1940 N. Monroe Street

Northwood Centre, Suite 60

Tallahassee, FL 32399-0790

James E. Manning, Qualified Representative

Department of Business

and Professional Regulation

1940 N. Monroe Street

Northwood Centre, Suite 60

Tallahassee, FL 32399-0792

Eugene Eubanks

1443 Raven Drive

Jacksonville, FL 32218

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

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