05-000994PL Department Of Business And Professional Regulation vs. Mark Slayden Status: Closed Recommended Order on Wednesday, July 27, 2005.

Summary: Administrative fines totaling $1,000 is warranted for allowing two unlicensed people to cut hair in a cosmetology salon.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 0 5 - 0994PL

)

MARK SLAYDEN, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pur suant to notice, a final hearing was held in this case

on May 26, 2005, before Administrative Law Judge Michael M.

Parrish of the Division of Administrative Hearings, by means

of video teleconference between sites in Tallahassee and

Lauderdale Lakes, Flori da.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire,

Christopher T. Roberts, Qualified

Representative

Department of Business and

Professional Regu lation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: No appearance on behalf of the

Respondent.

STATEMENT OF THE ISSUE

This is a case in which the Petition er seeks to impose an

administrative fine against the Respondent by reason of

statutory violations described in an A dministrative C omplaint

which are alleged to have taken place in the course of the

operations of the Respondent's cosmetology salon.

PRELIMI NARY STATEMENT

Following service of the A dministrative C omplaint, the

Respondent requested an evidentiary hearing and in due course

this case was referred to the Division of Administrative

Hearings. Following assignment of an Administrative Law

Judge, a w ritten Notice of Hearing was sent to all parties

setting forth the details regarding the scheduling of the

final hearing.

The final hearing was scheduled to begin at 9:00 a.m. on

May 26, 2005. The Petitioner made a timely appearance at the

hearing. There was no appearance by or on behalf of the

Respondent. The commencement of the evidentiary hearing was

delayed until approximately 9:27 a.m. in order to afford the

Respondent an opportunity to appear. The hearing was held

without any participation by the Respondent. There has been

no explanation as to the reason for the Respondent's failure

to appear at the hearing.

At the commencement of the final hearing the Petitioner

requested that Mr. Christopher T. Roberts be allowed to serve

as its Q ualified R epres entative in this case. The request was

granted. During the hearing, the Petitioner presented the

testimony of one witness and offered four exhibits, all of

which were received in evidence. Official Recognition was

also taken of three provisions of the c urrent version of the

Florida Statutes. 1

The one - volume transcript of the final hearing was filed

with the Division of Administrative Hearings on July 1, 2005.

Thereafter the Petitioner filed a Proposed Recommended Order,

which has been carefully consider ed during the preparation of

this Recommended Order. The Respondent has not filed any

document since the date of the final hearing.

FINDINGS OF FACT

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

has been licensed as a Cosmetologist, having been i ssued

license number CL205771. The Respondent's last - known business

address is 2600 Hammondville Road, Pompano Beach, Florida

33069, at which location he operates a Cosmetology Salon named

Cut Creation. At all times material to this case, Cut

Creation ha s been licensed as a Cosmetology Salon, having been

issued license number CE53077.

2. On February 5, 2004, the Respondent's business

premises were inspected by Norma Fishner, an Investigative

Specialist employed by the Department of Business and

Professio nal Regulation. During the course of her inspection

on February 5, 2004, Norma Fishner observed Christopher Mason

cutting a customer's hair on the premises of Cut Creation. On

that date Christopher Mason was not licensed as a

Cosmetologist in the State o f Florida.

3. On February 5, 2005, Norma Fishner also observed an

unidentified male cutting a customer's hair on the premises of

Cut Creation. This unidentified male ran out the front door

before he could be questioned or identified by Norma Fishner.

4. Norma Fishner questioned the Respondent about the

unidentified male who ran out the door and asked the

Respondent to provide identifying information about that

person. The Respondent refused to provide any information

about that person. It was clear tha t the Respondent knew the

identity of the unidentified male who ran out the door and

that the Respondent knew that the unidentified male did not

have a Cosmetologist license.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction o ver the parties to and the subject matter of

this proceeding pursuant to Sections 120.569 and 120.57,

Florida Statutes.

6. The Department of Business and Professional

Regulation, Board of Cosmetology, is the state agency charged

with regulating the practi ce of Cosmetology.

7. The definition at Section 477.013(4), Florida

Statutes, includes "hair cutting" as one of the activities

that constitutes the practice of Cosmetology.

8. Section 477.028, Florida Statutes, 2 reads as follows,

in pertinent part:

(1) The board shall have the power to

revoke or suspend the license of a

cosmetologist licensed under this chapter,

or the registration of a specialist

registered under this chapter, and to

reprimand, censure, deny subsequent

licensure or registration of, or o therwise

discipline a cosmetologist or a specialist

licensed or registered under this chapter

in any of the following cases:

* * *

(c) Upon proof that the holder of a

license or registration is guilty of

aiding, assisting, procuring, or advising

any unlicensed person to practice as a

cosmetologist.

9 . Section 477.029, Florida Statutes, authorizes the

Board of Cosmetology to impose penalties that include:

"[i]mposition of an administrative fine not to exceed $500 for

each count or separate offens e."

10 . In this case the Respondent allowed two unlicensed

people to practice Cosmetology in his Cosmetology Salon. Each

of these unlicensed acts constitutes a separate violation for

which an administrative fine in the amount of $500.00 may be

imposed.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that a final order be entered in

this case concluding that the Respondent is guilty of the

violations alleged in the Administrative Complaint and

imposing an administrative fine in the total amount of one

thousand dollars ($1,000.00).

DONE AND ENTERED this 27 th day of July, 2005, in

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Divisio n 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 H earings

this 27 th day of July, 2005.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the current version of the Florida Statutes.

2/ Some of the statutory provisions mentioned in the

Administrative Complaint are not the statutory provisions that

should have been mentioned. However, in view of the

similarities of the statutory provisions that were mentioned

and the ones that should have been mentioned, the

Administrative Complaint put the Respondent on adequate n otice

of the factual and legal basis for the proposed disciplinary

action. The incorrect citation to statutory provisions is not

such as to impair the fundamental fairness of the notice to the

Respondent, nor does it deprive the Respondent of due process.

COPIES FURNISHED:

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

Profes sional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Charles F. Tunnicliff, Esquire, and

Christopher T. Roberts, Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Fl orida 32399 - 2202

Mark Slayden

6543 Northwest 43rd Court

Coral Springs, Florida 33067

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 exception s

to this recommended order should be filed with the agency that

will issue the final order in this case.