O'Brien v. State Board of Cosmetology

776 S.W.2d 896, 1989 Mo. App. LEXIS 1326, 1989 WL 105555
CourtMissouri Court of Appeals
DecidedSeptember 14, 1989
DocketNo. 16310
StatusPublished

This text of 776 S.W.2d 896 (O'Brien v. State Board of Cosmetology) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Brien v. State Board of Cosmetology, 776 S.W.2d 896, 1989 Mo. App. LEXIS 1326, 1989 WL 105555 (Mo. Ct. App. 1989).

Opinion

FLANIGAN, Presiding Judge.

On September 21, 1987, following an evidentiary hearing, the State Board of Cosmetology (“the Board”) entered an order placing on probation for a period of five years the respective cosmetology licenses of Josephine O’Brien (“Josephine”) and her two sons, Joseph Cary O’Brien (“Cary”) and Glen Perry O’Brien (“Glen”). The order imposed certain conditions governing the probation. In the same order the Board suspended for a period of one year the cosmetology school license of Poplar Bluff Professional Beauty Academy (“the Academy”), held in the name of Josephine. The order further provided that upon termination of the suspension, the school license was placed on probation for a period of five years subject to certain conditions.

Prior to the hearing before the Board, an evidentiary hearing had been held before the Administrative Hearing Commission (“the Commission”), pursuant to a complaint filed by the Board against Josephine, Cary, Glen, and the Academy. The Commission found that the respective licenses were subject to disciplinary action and ordered that the records of the proceeding before the Commission be certified to the Board for further disciplinary action.

Pursuant to § 536.110,1 Josephine, Cary, Glen, and the Academy, as plaintiffs, filed in the Circuit Court of Butler County a petition for review of the Board’s order. The court entered its judgment affirming the Board’s order. Plaintiffs appeal.

Plaintiffs’ sole point is that the Board abused its discretion by imposing the sanctions, and the trial court erred in ruling otherwise, in that “the disciplinary action taken by the Board was far disproportionate to the facts as found by the Commission. Furthermore, the punishment imposed by the Board was arbitrary, capricious, and unreasonable.”

“Judicial review of administrative factual determinations is limited to whether the decision was supported by substantial and competent evidence, to whether the decision was arbitrary, capricious, or unreasonable, or to whether the agency action constituted an abuse of its discretion. ... The evidence is to be viewed in a light most favorable to the agency decision. ... If the evidence supports either of two contrary conclusions, the agency decision must prevail.... When an agency sits as an administrative tribunal, determination of the credibility of the [898]*898witnesses is an agency function.... The reviewing court may not substitute its own judgment and the court may not set aside the administrative decision unless clearly contrary to the overwhelming weight of the evidence.”

Gamble v. Hoffman, 732 S.W.2d 890, 892[1] (Mo. banc 1987).

For purposes of review, the action of the Commission and the order of the Board are treated as one decision. § 621.145. The order of the Board is subject to judicial review under the provisions of § 536.100 to § 536.140. See § 621.145. On this appeal the inquiry may extend to a determination of whether the action of the Board is arbitrary, capricious, or unreasonable, § 536.140.2(6) or involves an abuse of discretion, § 536.140.2(7). This court reviews the findings and decision of the Board, not the judgment of the Circuit Court. Hulshof v. Mo. Highway & Transp. Com’n, 737 S.W.2d 726, 727 (Mo. banc 1987).

Chapter 329 V.A.M.S. deals with the registration of cosmetologists, hairdressers and schools of cosmetology and hairdressing. The Board, established under § 329.180, has “control, supervision, and enforcement of the terms and provisions” of Chapter 329. § 329.180. To engage in the occupation of cosmetology or hairdressing, a person must obtain a certificate of registration. § 329.030. An “operator” is a person not an apprentice who engages in and follows any of the practices of the classified occupations, including cosmetology and hairdressing, named in Chapter 329. § 329.010(4). A school of cosmetology or hairdressing may not operate within this state without obtaining a certificate of registration as such a school. § 329.040.2.

Various acts constituting hairdressing or cosmetology are set forth in § 329.020(1). The cutting of hair is one of the acts constituting hairdressing. § 329.020(1). Any person teaching hairdressing or cosmetology “shall be registered as an instructor or as an instructor trainee.” § 329.080.1. “An instructor is one who holds a current Missouri instructor license. An instructor trainee is one who has passed the practical examination and holds a temporary permit for training as an instructor in a Missouri registered cosmetology school.” Id.

Section 329.140.2 sets forth various acts of misconduct by a holder of a license or certificate of registration which constitute grounds for disciplinary action. Among those grounds are “violation of, or assisting or enabling any person to violate, any provision of this chapter, or of any lawful rule or regulation adopted pursuant to this chapter,” § 329.140.2(6), and “assisting or enabling any person to practice or offer to practice any profession licensed or regulated by this chapter who is not registered and currently eligible to practice under this chapter.” § 329.140.2(10).

The Board may cause a complaint charging misconduct to be filed with the Commission “as provided by chapter 621 RSMo.” § 329.140.2. Upon a finding in any cause charged by the complaint for which the license may be suspended or revoked as provided in the statutes and regulations relating to the profession or vocation of the licensee, the Commission shall deliver to the Board the record and transcript of the proceedings before the Commission, together with the Commission’s findings of fact and conclusions of law. § 621.110. The Commission may make recommendations as to appropriate disciplinary action, but such recommendations are not binding on the Board. Id. Unless a hearing is waived, the Board shall set the matter for hearing, at which evidence may be received. After such hearing, the Board may order any disciplinary measure it deems appropriate and which is authorized by law. Id.

Upon a finding by the Commission, in a complaint proceeding, that grounds for disciplinary action exist, the Board may, among other things, place the person named in the complaint on probation on such terms and conditions as the Board deems appropriate for a period not to exceed five years, or may suspend the license or certificate for a period not to exceed three years. Such disciplinary actions may be taken “singly or in combination.” § 329.140.3.

[899]*899The brief of plaintiffs-appellants states that they “fully accept the findings of fact” of the Commission. The following statement of facts is based primarily on the Commission’s findings.

In 1965 Josephine was issued a certificate of registration as an operator and in 1980 similar certificates were issued to Cary and Glen. In 1983 the Academy was issued a certificate of registration as a school of cosmetology. At all material times in the instant proceeding, each of those certificates was current.

Josephine, Cary, and Glen have never been licensed as instructors under Chapter 329, and they are not instructor trainees. David O’Brien, Josephine’s husband, was manager of the Academy during 1983, and he has never been licensed under Chapter 329.

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Related

Gamble v. Hoffman
732 S.W.2d 890 (Supreme Court of Missouri, 1987)
Hulshof v. Missouri Highway & Transportation Commission
737 S.W.2d 726 (Supreme Court of Missouri, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
776 S.W.2d 896, 1989 Mo. App. LEXIS 1326, 1989 WL 105555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-state-board-of-cosmetology-moctapp-1989.