14-000875 Empire Ink vs. Department Of Health Status: Closed Recommended Order on Thursday, May 15, 2014.

Summary: The Department clearly and convincingly established that Respondent committed the violations alleged in the two citations of violation. Recommended fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH ,

Petitioner ,

vs. Case No s . 1 4 - 0875

14 - 1479

EMPIRE INK ,

Respondent .

/

RECOMMENDED ORDER

The s e case s came before Adm inistrative Law Judge Darren A.

Schwartz for final hearing by video teleconference on

April 2 8, 201 4 , at sites in Tallahassee and West Palm Beach ,

Florida.

APPEARANCES

For Petitioner: Telsula C. Morgan , Esquire

Department of Health

Suite 5 - 545

800 Clematis Street

West Palm Beach , Florida 3 3401

For Respondent: Steve Santacruz , pro se

Empire Ink

22773 State Road 7

Boca Raton , Florida 33 428

STATEMENT OF THE ISSUE S

Whether Empire Ink committed the violations alleged in the

two citations of violation issued on January 31, 2014 , and, if

so, what penalties should be imposed on Empire Ink .

PRELIMINARY STATEMENT

On January 31, 2014 , Pe titioner Department of Health

( " Department " ), issued two citations of violation against

Respondent Empire Ink ( " Empire Ink " ) , charging Empire Ink with

the following offenses relating to noncompliance with the rules

governing body - piercing salons : (1) miss ing customer records of

jewelry description, emergency contact, and receipt of

education al information, in violation of section s 381.0075 (7) and

381.0075(11)(a) 7 . , Florida Statutes , and Florida Administrative

Code R ule 64E - 19.00 7 (3 ) ; and (2) missing not a ri zed , parental

consent form s for minor piercing , in violation of section

381.0075(7), Florida Statutes , and Florida Administrative Code

Rule 64E - 19.007(3).

Empire Ink timely requested a formal hearing to contest the

allegations, and, subsequently , the matte r was referred to the

Division of Administrative Hearings ("DOAH") to assign an

Administrative Law Judge to conduct the final hearing. The final

hearing was set for April 28, 2014 , by video teleconference, with

sites in Tallahassee and West Palm Beach , Fl orida. 1/

At the final hearing, the Department presented the testimony

of Siobhan Townsend and Drovika Gosein - Rodriguez , and offered

Exhibits 1 through 3 and 5 through 8 , all of which were admitted

into evidence without objection. Empire Ink presented the

testimony of Steve Santacruz , the owner of Empire Ink . Empire

Ink offered Composite Exhibit 1, which was admitted into evidence

without objection .

No transcript of the final hearing was ordered . The

Department timely filed a P roposed R ecommended O rder, which was

given consideration in the preparation of this Recommended Order.

Empire Ink did not file a proposed recommended order.

All citations to Florida Statutes refer to the 2013 version ,

unless otherwise indicated. All citations to the Florida

Ad ministrative Code are to the version in effect at the time of

the violations.

FINDING S OF FACT

1. The Department is the s tate agency charged with the

regulation and inspection of body - piercing salons in the s tate of

Florida pursuant to chapter 381 , Florid a Statutes.

2 . At all times material to this case, Empire Ink was a

licensed body - piercing salon located at 22773 State Road 7, Boca

Raton, Florida 33 428 . Steve Santacruz is the owner of Empire

Ink.

3 . On January 17 , 201 4 , a routine inspection of E mpire Ink

was conducted by Siobhan Townsend , a n Environmental Health

Inspector em ployed by the Department . Ms. TownsendÓs job duties

include the inspection of body - piercing salons.

4. During the inspection , Empire Ink provided Ms. Townsend

three custom er files. Ms. Townsend reviewed these files , and

noticed the following items missing from the files in violation

of the laws governing body - piercing salons : (1) signed customer

forms acknowledg ing receipt of educational information , e mergency

contact info rmation , and jewelry descriptions; and (2) notarized,

parental notification consent forms for minor piercing .

5 . At the conclusion of the January 17 , 201 4 , inspection,

Ms. Townsend prepared a written report documenting the violations

that she had observ ed. Before leaving the premises, Ms. Townsend

discussed her observations with a representative of Empire Ink ,

and provided Empire Ink a copy of the inspection report. At the

final hearing, Mr. Santacruz acknowledged that the items were

missing from the f ile s at the lo cation on J anuary 17, 2014, as

set forth in the inspection report

6 . According to the January 17 , 201 4 , inspection report,

the violations were to have been corrected by 8:00 a.m. on

January 31, 2014 , at which time a follow - up inspection was

scheduled to occur. The purpose of the follow - up inspection was

to determine whether the vi olations identified during the

January 17, 2014 , inspection had been resolved.

7 . On January 31 , 201 4 , a follow - up inspection at Empi re

InkÓs facility was condu cted. None of the v iolations observed

during the January 17, 2014 , inspection had been resolved.

8 . At the conclusion of the January 31, 2014 , follow - up

inspection , Empire Ink was provided with the two citations of

violation do cumenting the afor ementioned missing documentation .

9 . The Department introduced into evidence a copy of the

DepartmentÓs records concerning previous violations by Empire

Ink. Specifically, the evidence shows that on June 18, 2010 ,

Empire Ink was issued a Stop Use Order f or, among other things,

performing body piercings on 13 minors without obtaining proper

written notarized consent of the ir parent s or legal guardian s .

Furthermore, on June 29, 2010, Empire Ink was issued a citation

of violation for performing the body pie rcings on 13 minors

without obtaining proper written notarized consent of the ir

parent s or legal guardian s . The June 29, 2010, citation of

vio lation imposed a $1,000.00 fine .

10. Furthermore, on July 5, 2012, the Department conducted

a follow - up inspe ction, observed missing documentation , and

issued to Empire Ink another inspection report for missing

customer records, including missing emergency contact and

educational information, and notarized, parental notification

consent forms for minor piercing. Moreover , on September 6,

2013, the Department conducted a routine inspection, observed

missing documentation, and issued to Empire Ink another

inspection report for missing customer records, including missing

notarized, p arental consent forms for minor p iercing .

11. The evidence demonstrates that the Department made

extensive efforts to work with Empire Ink to obtain compliance

under the statutes and rules, including providing the facility

with sample forms and technical assistance.

CONCLUSIONS OF LA W

1 2 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

1 3 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a professional license is pe nal in

nature. State ex rel. Vining v. Fla. Real Estate CommÓn , 281 So.

2d 487, 491 (Fla. 1973). Accordingly, to impose discipline, the

Department has the burden of proving by clear and convincing

evidence the allegations set forth in the citations of vi olation .

DepÓt of Banking & Fin., Div. of Secs. & Investor Prot. v.

Osborne Stern & Co . , 670 So. 2d 932, 933 - 34 (Fla. 1996); Ferris

v. Turlington , 510 So. 2d 292, 294 - 95 (Fla. 1987).

1 4 . Section 381 . 0075 , Florida Statutes, sets forth the acts

for which the Department may impose discipline. This statute

provides, in pertinent part:

( 7 ) MINORS. Î A person may not perform body

piercing on a minor without the written

notarized consent of the minorÓs parent or

legal guardian, and an establishment may not

p erform body piercing on a minor under the

age of 16 unless the minor is accompanied by

a parent or legal guardian.

(8) PROHIBITE D ACTS; PENALTIES; INJUNCTION . Î

* * *

(b) Each of the following acts constitutes a

misdemeanor of the second degree, punish able

as provided in s . 775.082 or s. 775.083:

1. Failing to maintain the records required

by this section or knowingly making false

entries in such records.

2. Failing to comply with the requirements

regarding minors set forth in subsection (7) .

* * *

(11) BODY - PIERCING SALONS; SPECIFIC

REQUIREMENTS. -

(a) A body - piercing salon must:

* * *

6. Provide each customer with written

instructions on the proper care of the

pierced area so as to prevent infection.

7. Maintain a record of each customerÓ s

visit for a period of not less than 2 years,

including, but not limited to, the customerÓs

name, date of visit, and area pierced and the

name of the person performing the piercing.

15 . Florida Administrative Code Rule 64E - 19.007(3) further

provide s, in pertinent part:

(3) Customer Records. Records must be

maintained in accordance with Section

381.0075(11)(a)7., F.S., and shall include

the following:

* * *

(d) The name, telephone number and address

of an emergency contact person for the

custo mer;

* * *

(i ) A description of the jewelry used in the

piercing;

* * *

(k) Copies of the signed statement for

receipt of educational information required

in subsection 64E - 19.007(1), F.A.C., of this

chapter;

(l) Copies of the written notarized p arental

consent statements required by Section

381.0075(7), F.S., for minors. The

statements must describe the type of

piercings that will be performed on the

minor.

1 6 . Florida Administrative Code Rule 64E - 19.007(5) further

provides:

(5) Record s required by this section shall

be maintained at each salon for the current

licensing period. Records may be stored

elsewhere after that time frame, but they

must be stored in accordance with this

chapter and made available for review by the

department u pon request of the department.

1 7 . The undersigned has determined, as a matter of ultimate

fact, that the Department has met its burden of showing by clear

and convincing evidence that Empire Ink violated sections

381.0075 (7) and (11)(a)7. , Florida Statutes , and Florida

Administrative Code Rule 64E - 19.007(3) , as alleged in the two

citations of violation . At the time of the January 17 , 2014 , and

January 31, 2014, inspections , Empire Ink did not have in its

customer files at the salon customer forms acknowledging receipt

of educational information , emergency contact information, and

jewelry descriptions; and notarized parental consent forms for

minor piercing.

18 . In the present case, the Department seeks to impose an

administrative fine of $2,000 .00 against Empire Ink for the

violations.

19 . Section 381.0075(9) (b) and (c) , Florida Statutes,

governs the issuance of administrative fines for a violation of

section 381.0075 or the rules adopted under this section, and

provides:

(b) The department may impose an

administrative fine, not to exceed $1,000 per

violation per day, for the violation of any

provision of this section, any rule adopted

under this section, or any term or condition

of any license issued under this section by

the depa rtment.

(c) In determining the amount of fine to be

levied for a violation, as provided in

paragraph (b), the following factors shall be

considered:

1. The severity of the violation and the

extent to which the provisions of this

section, the rules adopted under this

section, or any terms or conditions of any

license issued under this section were

violated.

2. Actions taken by the licensee to correct

the violation.

3. Any previous violations by the licensee.

2 0 . The Department proved t hat Empire InkÓs violations are

not isolated incidents, but a pattern of misconduct .

2 1 . A reasonable fine in this case, in light of the

evidence presented, is $1 , 000 .00 for each of the two violations,

for a total fine of $2,000.00.

RECOMMENDATION

Ba sed on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department of Health , imposing a fine of $ 2 , 0 00 .00 , to be paid to

the agency clerk within 30 days after the filing of the f inal

o rder.

DONE AND ENTERED this 1 5 th day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 5 th day of May , 2014 .

ENDNOTE

1/ Case No. 14 - 0875 involves the charge of missing customer

records of jewelry description,, emergency contact, and receipt

of educational information. Case No. 14 - 1479 involves the charge

of missing notarized, parental consent forms for minor piercing.

At the request of the parties, these cases were consolidated for

all p urposes. On Ap ril 3, 2014, the undersigned issued an Order

of Consolidation.

COPIES FURNISHED:

Telsula Christy Morgan, Esquire

Department of Health

Suite 5 - 545

800 Clematis Street

West Palm Beach, Florida 33401

Steve Santacruz

Empire Ink

22773 State Road 7

Boca Raton, Florida 33428

Jamie Briggs , Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

Jennifer Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 323 99

John A. Armstron g , M.D., F.A.C.S.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399

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.