96-000364 Department Of Business And Professional Regulation vs. Kelly Carter, D/B/A Reflections Of You Status: Closed Recommended Order on Monday, August 26, 1996.

Summary: Petitioner demonstrated Respndent failed to comply with terms of citation issued to her which became Final Order by default-Fine is guideline only and can be varied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0364

)

KELLY CARTER d/b/a )

REFLECTIONS OF YOU, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 29, 1996,

in Tallahassee, Florida, before the Division of Administrative Hearings, by its

designated Hearing Officer, Diane Cleavinger.

APPEARANCES

For Petitioner: James E. Manning, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether any disciplinary action should be taken

against Respondent's cosmetology salon license.

PRELIMINARY STATEMENT

On December 28, 1994, while conducting an inspection of cosmetology salons

in the Tallahassee area, an inspector for the Petitioner entered Reflections of

You and conducted a routine inspection. During the course of that inspection it

was discovered that Respondent, although the new owner of the salon, had not

obtained a new salon license from the Board of Cosmetology indicating her as the

new owner.

After the inspection was completed, a citation was issued to the Respondent

charging her with owning or operating a salon without obtaining a new salon

license from the Board of Cosmetology, in violation of Section 477.025(7),

Florida Statutes. The citation was issued through Rule 61G5-30.004(6)(b),

Florida Administrative Code. The citation provides for a 30 day period in which

Respondent can choose to either pay the fine or dispute the allegations

contained within the citation. Respondent did not pay the citation within 30

days after service was accomplished as provided for by rule, nor did she dispute

the allegations contained within the citation. On February 1, 1995, the

citation became a Final Order of the Board of Cosmetology.

Thereafter, the Petitioner filed an Administrative Complaint on September

29, 1995, charging the Respondent with violating Section 477.029(1)(i), Florida

Statutes, in that it is unlawful for any person to violate or refuse to comply

with any provision of Chapter 477 or a rule or a final order of the Board.

Respondent requested a formal hearing in the matter.

At the hearing, Petitioner called two witnesses to testify and offered

three exhibits into evidence. Respondent did not appear at the hearing.

By Notice of Supplemental Filing, the Petitioner requested the Hearing

Officer to take official notice of Chapter 477, Florida Statutes, and Chapter

61G5, Florida Administrative Code, which govern the practice of cosmetology.

The Hearing Officer recognized Chapter 477, Florida Statutes, and Chapter 61G5,

Florida Administrative Code.

After the hearing Petitioner filed a proposed recommended order on August

7, 1996. The Petitioner's proposed findings of fact have been utilized in the

preparation of this recommended order. Specific rulings on Petitioner's

proposed findings of fact are contained in the appendix to this recommended

order.

FINDINGS OF FACT

1. Respondent is the owner and operator of a cosmetology salon known as

"Reflections of You" located in Tallahassee, Florida.

2. Respondent had purchased the salon from the previous owners.

3. Randall Smith was an inspector for the Department of Business and

Professional Regulation, whose duties included the inspections of cosmetology

salons.

4. On December 24, 1994, Inspector Randall Smith conducted a routine

inspection of Reflections of You. The salon was open to the public, and

employees were present.

5. Respondent was present during the inspection.

6. During the inspection Respondent admitted to having problems with the

previous owners on the purchase of the salon and thought that her lawyer had

taken care of all the necessary requirements to own the business. Respondent

believed that the transfer included the proper transfer of the salon license.

7. However, Respondent had not been issued a new salon license listing her

as the new owner after her purchase.

8. After concluding his discussion with a representative from the

Cosmetology Board office, Inspector Randall Smith wrote a Uniform Citation and

served it on the Respondent by hand delivery.

9. The Uniform Citation served on the Respondent indicated a fine in the

amount of five hundred (500.00) dollars for failure to have a proper salon

license.

10. Respondent neither paid the citation nor challenged the fine contained

in the citation.

11. The citation therefore became a Final Order of the Board of

Cosmetology on February 1, 1995 by operation of law.

12. In mitigation of her failure to transfer her license, Respondent

applied and paid fifty-five (55) dollars for a new salon license on December 24,

1994, the day after the inspection by Randall Smith, and was issued a new salon

license. Presumably, Respondent's cosmetologist license was current.

CONCLUSIONS OF LAW

13. 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.

14. Pursuant to Section 477.025(7), Florida Statutes, no license for

operation of a cosmetology salon or specialty salon may be transferred from the

name of the original licensee to another.

15. On the date of inspection of Reflections of You, Respondent did not

have a valid salon license reflecting herself as the owner of the salon as

required in Chapter 477, Florida Statutes.

16. Respondent was issued Citation Number 003142 for not having a valid

license.

17. Respondent did not pay or dispute the citation that was issued to her.

18. Citation Number 003142 became a Final Order of the Board of

Cosmetology 30 days after it was served on the Respondent. Rule 61G5-30.004,

Florida Administrative Code.

19. In a disciplinary action such as this proceeding, the burden is on the

regulatory agency (Petitioner) to establish the facts upon which its allegations

of misconduct are based. Balino v. Department of Health and Rehabilitative

Services, 348 So. 2d 349 (Fla. 2nd DCA 1977). The Petitioner must prove its

allegations by clear and convincing evidence. Ferris v. Turlington, 570 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).

20. In this case the Petitioner has carried its burden of proof, since

Respondent did not pay or dispute the allegations contained within the citation

Therefore, she is in violation of a Final Order issued by the Board of

Cosmetology, pursuant to Section 477.029(1)(j), Florida Statutes.

21. The evidence also demonstrated that the Respondent is guilty of

violating Section 477.025(7), Florida Statutes, for not obtaining a new salon

license after transferring ownership of the salon into her name. These facts

were the underlying facts of the charges contained in the original citation and

should not result in an additional penalty.

22. The Disciplinary Guidelines contained in 61G5-30.001(1)(b)1., Florida

Administrative Code, in addition to other administrative penalties, provide for

an administrative fine of five hundred (500.00) dollars, for owning or operating

a salon which is not duly licensed. 61G5-30.000(1)(b)(2), It does not contain

a range of any penalties. 1/ However, the guidelines also provide a fine of

fifty (50.00) dollars for failing to transfer a license to a new owner. This

fine more closely fits the facts of this case and the fine imposed in the

citation would appear to be in error. Therefore, Respondent should be fined

fifty (50.00) dollars.

RECOMMENDATION

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

RECOMMENDED:

That the Board of Cosmetology enter a Final Order finding Respondent guilty

of violating Section 477.029(1)(i), Florida Statutes and guilty of violating

Section 477.025(7), Florida Statutes and imposing a fifty (50.00) dollar fine

for the two violations.

DONE and ENTERED this 26th day of August, 1996, in Tallahassee, Leon

County, Florida.

___________________________________

DIANNE CLEAVINGER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone] SUNCOM 278-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of August, 1996.

ENDNOTE

1/ The Board should note that the rule on discipline is a guideline only. The

fact that a range of penalties is not provided under those guidelines does not

mean that the listed penalty cannot be varied given appropriate aggravating or

mitigating circumstances. The Board is required to consider such circumstances

in assessing an appropriate penalty. See Chapter 455 and 477, Florida Statutes.

APPENDIX

The facts contained in paragraphs 1 through 23 of Petitioner's proposed

findings of fact are adopted in substance, in so far as material.

COPIES FURNISHED:

James E. Manning, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Kelly Carter

Suite 203

547 North Monroe Street

Tallahassee, Florida 32312

Dorothy Faircloth, Executive Director

Department of Business and

Professional Regulation

Board of Cosmetology

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.