Judges: MICHAEL M. PARRISH
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 20, 1985
Summary: Evidence establishes that Respondents were practicing cosmetology and operating cosmetology salon without licenses.
85-0938STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 85-0938
) (DPR Case Nos.: 0038406 RUTH SINCLAIR, d/b/a ) 0038426 and 0048942) UZURI BRAID SHOP, )
)
Respondent. )
)
) DEPARTMENT OF PROFESSIONAL ) REGULATION, )
)
Petitioner, )
) CASE NO. 85-2287
vs. ) (DPR Case No. 0038408)
)
PICALA SIMS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these cases in Miami, Florida, on July 25, 1985, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing by the following counsel:
APPEARANCES
For Petitioner: Theodore R. Gay, Esq.
Southeast Financial Center Suite 4310
200 South Biscayne Boulevard Miami, Florida 33131-2355
For Respondent: Patricia Graham Williams, Esq.
18583 N.W. 27th Avenue Miami, Florida 33056
BACKGROUND
The charges at issue in Case Number 85-0938 arise from a three-count Amended Administrative Complaint filed against the Respondent Ruth Sinclair on April 20, 1984. On May 28, 1985, the Petitioner filed a five-count Second Amended Administrative Complaint against Sinclair. The Second Amended Administrative Complaint alleged that Sinclair practiced cosmetology without a license in violation of Section 477.029(1)(a), Florida Statutes, operated a cosmetology salon in two different locations without a license in violation of Section 477.029(1)(b), Florida Statutes, and employed two individuals to practice cosmetology who were not licensed cosmetologists, in violation of Section 477.029(1)(c), Florida Statutes.
The charges at issue in Case Number 85-2287 arise from a one-count Administrative Complaint filed on October 10, 1983, against Picala Sims, alleging that Sims practiced cosmetology without a license in violation of Section 477.029(1)(a),Florida Statutes.
Both cases were consolidated for hearing. At the consolidated hearing, the Petitioner presented as its witnesses Joyce Sager, Margie Mayes, and Migdalia Jimenez; and the Respondents presented as their witnesses Mary Critten and Ruth Sinclair. Also at the hearing, the Petitioner presented sixteen
exhibits, all of which were received in evidence. The Respondents presented four (4) exhibits, the first three of which were received in evidence as deposition exhibits attached to Petitioner's Exhibit 14, the deposition of Ruth Sinclair. The fourth exhibit was a photograph that was marked as
Respondent's Exhibit 7, and that was discussed briefly by one of the witnesses, but was never formally moved into evidence.
At the conclusion of the hearing, the parties were advised that any post-hearing submissions to the Hearing Officer would be due two weeks from the filing of the transcript of the hearing. The transcript of the hearing was filed with the Division of Administrative Hearings on August 14, 1985, and by letter dated August 15, 1985, counsel for the parties were advised of the date of filing of the transcript and were further advised that their post-hearing submissions must be filed by no later than August 28, 1985. Counsel for the Petitioner filed a timely Proposed Recommended Order. Counsel for Respondents did not. On September 4, 1985, the Hearing Officer's secretary communicated by telephone with the office of counsel for Respondents and was advised that the Respondents still wished to
file a Proposed Recommended Order and would be filing a motion for extension of time within which to do so. As of the date of this Recommended Order the Respondents have not filed a Proposed Recommended Order nor have they filed a motion seeking an extension of time within which to do so.
FINDINGS OF FACT
Based on the exhibits received in evidence and on the testimony of the witnesses at the hearing, the following facts are found.
In 1980 Ruth Sinclair became interested in hair braiding and hair sculpture while she was studying the history of African art at the University of Miami. Since her initial interest in hair braiding and hair sculpture, Ruth Sinclair has made extensive efforts to study the subject and to learn and improve her skills in hair braiding and hair sculpture. Shortly after her initial interest in hair braiding and hair sculpture, Ruth Sinclair began practicing hair braiding and hair sculpture in Florida and she has continued to do so more or less continuously ever since then. Ruth Sinclair is predominantly self-taught in the field of hair braiding or hair sculpture, but she also obtained some training from others by going to California and Africa.
The practice of hair braiding and hair sculpture originated in the Nok region on the west coast of Africa around 200-300 B.C. As used in Africa since that time, particular types of sculptured or braided hairstyles have served to identify the wearer's tribe or status in society. However, despite centuries of such hair braiding practices by African Blacks, the practice was virtually lost among Blacks who were brought to the United States as slaves.
As practiced by Ruth Sinclair, hair braiding or hair sculpture consists of two basic categories or types of hair styles. These are the traditional styles and the contemporary styles. The traditional styles are patterned after styles that were used in the past in Africa and consist of hair braids that follow the same pattern as some forms of weaving. Sinclair ordinarily spends approximately 35 to 40 hours to produce a traditional style hair sculpture, and in more than ten percent of the cases in which Sinclair produces a traditional style hair sculpture, Sinclair charges a fee. The contemporary style involves the use of the same techniques as the traditional style but also involves the use of contemporary materials produced by modern technology such as synthetic or human hair and commercially-made ornaments or beads. In producing a contemporary style hair sculpture, Sinclair ordinarily spends approximately 8 to 20 hours, and she normally charges a fee.
As practiced by Ruth Sinclair, hair sculpturing, whether of the traditional or the contemporary style, is produced primarily by hair braiding. The hair braiding is done by hand, by intertwining strands of hair. No tools are used other than a long, tapered instrument for lifting up strands of hair. The person's hair is not treated with any type of chemicals, nor is it cut or shampooed (although Sinclair requests that her patrons wash their hair before receiving any services), and Sinclair washes her hands in soap and water before, during, and after performing her services. The braided or sculptured hairstyles are normally worn for approximately 3 to 6 months. Nearly ninety percent of Sinclair's patrons were Black women.
During the period from 1982 until sometime in 1984, Ruth Sinclair leased a storefront at 6009 N.W. 7th Avenue, Miami, Florida, and there she conducted a business of performing hair braiding or hair sculpture. The name of the business was Uzuri Braid Shop, and the business had about twenty paying customers per week.
At the Uzuri Braid Shop at 6009 N.W. 7th Avenue, Miami, Florida, Ruth Sinclair employed Respondent Picala Simsa, and also Angela Powell or Powers as assistants. Picala Sims was employed as an assistant there from 1982 until 1984, and Powell or Powers from 1983 until 1984. Both were hired by Ruth Sinclair, and Ruth Sinclair paid them both a salary. Their duties were basically the same: to assist Ruth Sinclair in braiding and beading patrons' hair.
On August 2, 1983, Joyce Sager, an inspector employed by the Petitioner, conducted an inspection of the Uzuri Braid Shop at 6009 N.W. 7th Avenue, Miami, Florida. On that occasion, Picala Sims and Angela Powell or Powers were present and were performing hair braiding services for customers of the business. Ruth Sinclair was not present at the time, but Sager spoke with Ruth Sinclair on the telephone that day, and in the course of their conversation, Ruth Sinclair acknowledged to Inspector Sager that she was the owner of the business and that she was the employer of Picala Sims and Powell or Powers.
During the period from November 1983 until November 1984, Ruth Sinclair leased space in an indoor flea market at 18200 N.W. 27th Avenue, Miami, Florida, and there she conducted a business of performing hair braiding or hair sculpture. The name of the business was Uzuri Braid Shop, and the business had about 15 paying customers per week.
On June 9, 1984, Dorsey Hayes, an inspector employed by the Petitioner, went to the Uzuri Braid Shop at 18200 N.W. 27th Avenue, Miami, Florida, and spoke with Ruth Sinclair. During the course of the conversation, Ruth Sinclair acknowledged being the owner of the business and that she had been performing braided hairstyles there.
None of the following people have ever been licensed to practice cosmetology or barbering in the State of Florida: Ruth Sinclair, Picala Sims, Angela Powell, or Angela Powers.
Neither the Uzuri Braid Shop at 6009 N.W. 7th Avenue, Miami, Florida, nor the Uzuri Braid Shop located at 18200 N.W. 27th Avenue, Miami, Florida, has ever been licensed to operate as a cosmetology salon or as a barber shop.
There are certain conditions under which it would be inappropriate to give a person a braided hairstyle, even though the person wanted one. These conditions include the presence of a contagious scalp disease, abrasions of the scalp, hair that is not clean, or chemically treated hair that is very dry or damaged. The recognition of these conditions is a regular part of the curriculum currently being taught in schools of cosmetology in Florida, and someone not having received such training would be less likely to recognize them, which could lead to hair breakage or to the spread of contagious scalp diseases or parasites if a hair braiding service were performed when such conditions were present.
The teaching of hair braiding has been a regular part of the curriculum of Florida schools of cosmetology at least since 1975.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and on the applicable legal principles, the following legal conclusions are made.
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Sections 120.57(1) and 455.225(4), Florida Statutes.
Section 477.013(5), Florida Statutes, contains the following definition of the term "cosmetology:"
"Cosmetology" means the mechanical or chemical treatment of the head, face, and scalp for aesthetic rather than medical purposes, including, but not limited to, hair shampooing, hair cutting, hair arranging, hair coloring, permanent waving, hair relaxing, or hair removing, for compensation.
Pursuant to the above definition, the term cosmetology includes the activity referred to as "hair arranging." In Webster's Third New International Dictionary (unabridged), Merriam Webster, Inc. (1981), the word "arrange" is defined as follows:
to put in correct, convenient, or desired order: adjust properly: dispose, place (the girl carefully arranged her hair).
On June 28, 1984, a Board of Cosmetology amendment to Rule 21F-18.001, Florida Administrative Code, took effect, specifically adding "hair braiding" to its administrative rule definition of the term "cosmetologist," which definition had previously tracked the statutory definition of cosmetology quoted above. Such administrative interpretation of a statute should be accorded great weight, Grady v. Department of Professional Regulation, Board of Cosmetology, 402 So. 2d 438 (Fla. 3d DCA 1981).
It is clear from the testimony of the witnesses and the exhibits received in evidence that the hair braiding and hair sculpturing activities of Ruth Sinclair, Picala Sims, and Angela Powell or Powers constitute the putting of hair in "correct, convenient, or desired order" and thus constitute the arranging of hair within the ordinary meaning of the language of the statute defining cosmetology. Therefore, since these individuals were clearly shown to have performed these activities for compensation, it must be concluded that they were engaged in the practice of cosmetology as that term has been defined by the Legislature. Furthermore, the correctness of this conclusion is bolstered by the administrative interpretation that the Board of Cosmetology has given to that definition.
Having concluded that Sinclair's, Sims', and Powell's or Power's activities constitute the practice of cosmetology within the meaning of Section 477.013(5), Florida Statutes, the Uzuri Braid Shop (at both locations) must be concluded, pursuant to Rule 21F-20.01, Florida Administrative Code, to have been operated as a cosmetology salon. Rule 21F-20.01, Florida Administrative Code, provides, in pertinent part, as follows:
21F- 20.01 Cosmetology Salon Defined. Cosmetology salon means any establishment or place of business wherein the practice of cosmetology as defined in Section 477.
013(5), F.S. (1978), is engaged.
Without dispute, it is clear that Sims and Powell or Powers engaged in hair braiding at 6009 N.W. 7th Avenue as Ruth Sinclair's employees of the Uzuri Braid Shop. Since they were not licensed to practice cosmetology at the time, Sinclair has permitted "an employed person to practice cosmetology" who was not "duly licensed," within the meaning of, and in violation of, Section 477.029(1)(c), Florida Statutes, as alleged in Counts Two and Three of the Second Amended Administrative Complaint.
Since the Uzuri Braid Shop (both locations) was operated as a cosmetology salon, and since the Uzuri Braid Shop was never licensed to operate as a cosmetology salon, Ruth Sinclair is deemed to have operated a "cosmetology salon" that was not "duly licensed," within the meaning of, and in violation of, Section 477.029(1)(b), Florida Statutes, as alleged in Counts One and Four of the Second Amended Administrative Complaint.
Since Ruth Sinclair's and Picala Sims' hair braiding activities constitute the practice of cosmetology, and since they were never licensed to practice cosmetology in Florida, they are deemed to have "held [themselves] out as cosmetologist[s]" without being "duly licensed," within the meaning of, and in violation of, Section 477.029(1)(a), Florida Statutes, as alleged in Count Five of the Second Amended Administrative Complaint filed against Sims.
Having concluded that the foregoing violations occurred, the Respondents are subject to one or more of the penalties listed in Section 477.029(2), Florida Statutes, as. determined by the Board of Cosmetology.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Cosmetology enter a Final Order adopting the foregoing findings and conclusions and imposing an administrative fine in the amount of $1, 500.00 against Ruth Sinclair and an administrative fine in the amount of $500.00 against Picala Sims.
DONE AND ORDERED this 20th day of September, 1985, at Tallahassee, Florida.
MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1985.
COPIES FURNISHED:
Theodore R. Gay, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Patricia Graham Williams, Esq. 18583 N.W. 27th Avenue
Miami, Florida 33056
Myrtle Aase, Executive Director Board of Cosmetology
Old Courthouse Square Building
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 85-000938
Orders for Case No: 85-000938
| Issue Date |
Document |
Summary |
|
Sep. 20, 1985 |
Recommended Order
|
Evidence establishes that Respondents were practicing cosmetology and operating cosmetology salon without licenses.
|
