04-004112 Department Of Business And Professional Regulation, Board Of Cosmetology vs. Mayelin Unisex Beauty Salon Status: Closed Recommended Order on Friday, April 8, 2005.

Summary: The permitting of an unlicensed worker to perform hair care services for compensation warrants a $500 administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4112

)

MAYELIN UNISEX BEAUTY SALON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this

cause before the Division of Administrative Hearing through

its duly - designated Administrative Law Judge Florence Snyder

Rivas, on January 26, 2005, via video te leconference at

locations in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Renee Alsobrook, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Stre et

Tallahassee, Florida 32399 - 1015

For Respondent: Juana Blanco, pro se

Mayelin Unisex Beauty Salon

16551 Northeast 8th Avenue

North Miami Beach, Florida 33162

STA TEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in the

Administrative Complaint dated January 29, 2004, and if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 29, 2004,

Petitioner charged Respondent with violating Chapter 477,

Florida Statutes, pertaining to the practice of cosmetology.

Respondent petitioned for a formal administrative hearing

to dispute the charge.

The identity of witnesses, exhibits and attendant rulings

are cont ained in the one - volume transcript of the proceeding

filed March 16, 2005 .

Both parties were afforded an opportunity to submit

proposed findings of fact and conclusions of law. Petitioner

timely filed its Proposed Recommended Order. Respondent has

not fi led a proposed recommended order.

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:

1. 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.

2. Respondent has at all times material to this case

been subjec t 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.

3. At all times material to this case, Respondent was

under a legal duty to refrai n from permitting unlicensed

individuals to perform cosmetology services, including hair

care, upon members of the public.

4. On or about April 26, 2003, Abdel Cedeno (Cedeno), a

duly - qualified inspector employed by Petitioner and whose job

includes monit oring compliance with Chapter 477, Florida

Statutes, went to Mayelin's during its regular business hours

for the purpose of conducting a routine inspection.

5. On that occasion, Cedeno observed one Yomaira Payero

(Payero) performing cosmetology services o n a customer.

6. 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.

7. 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.

CONCLUSIONS OF LAW

8. The Division of Administrative H earings has

jurisdiction over the subject matter and parties in this

proceeding. § 120.57, Fla. Stat.

9. The burden of proof is on Petitioner to show by clear

and convincing evidence that Respondent committed the

violation alleged in the administrative complaint and the

reasonableness of any proposed penalty. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne

Stern and Company , 670 So. 2d 932 (Fla. 1996).

10. Pe titioner has fulfilled its burden of proof.

11. The state has a substantial interest in assuring the

health and safety of patrons of establishments such as

Mayelin's where customers seek services aimed at enhancing the

appearance of their hair or skin. Businesses such as

Respondent's have a high potential for spreading disease if

employees are not trained in and compliant with sanitation and

other principles taught to persons who seek a state license to

engage in the businesses regulated by Chapter 477, Florida

Statues.

12. Respondent offered no mitigating factors which would

militate against penalties at the upper end of those

authorized by law for its violation. § 477.029, Fla. Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusi ons

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 Administrativ e 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 Regulati on

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 C ounsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recom mended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.