STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY SMITH and BRIAN DOBSON, ) d/b/a HAIR REPLACEMENT SYSTEMS, )

)

Petitioner, )

)

vs. ) Case No. 85-1300

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on January 8, 1986, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Southeast Financial Center Suite 4530

200 South Biscayne Boulevard Miami, Florida 33131-2355

For Respondent Kenneth N. ReKant, Esquire Gary Smith: Suite 208

One Lincoln Road Building

Miami Beach, Florida 33139-2086

For Respondent

Brian Dobson: No appearance.

PRELIMINARY STATEMENT

By administrative complaint filed April 19, 1985, Petitioner, Department of Professional Regulation (Department) seeks to discipline Respondents, Gary Smith and Brian Dobson, d/b/a Hair Replacement Systems. The complaint charges that Respondents practiced cosmetology without benefit of licensure.

At final hearing Petitioner called Alexa Arachy as a witness. Petitioner's Exhibits 1-9 were received into evidence. Respondents called no witnesses, and offered no exhibits.

The transcript of hearing was filed January 15, 1986. The parties were granted leave through January 27, 1986, within which to file proposed findings of fact and conclusions of law. Petitioner has submitted proposed findings. No proposed findings have been submitted on behalf of Respondents. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondents, Gary Smith and Brian Dobson, operated two businesses from the premises located at 4905 Sheridan Street, Hollywood, Florida. The first business, Scruples Hair Design, Inc. (Scruples) was a duly licensed cosmetology salon which employed licensed cosmetologists. The second business, Gary Smith and Brian Dobson, d/b/a Hair Replacement Systems (HRS) sold and serviced hairpieces. Neither Smith nor Dobson are licensed barbers or cosmetologists.

   
   

2. Although operated from the same location, Scruples and HRS are physically distinct. Separate entrances admit customers to each business. Although an interior passage does permit access to each of the businesses, HRS's office space is clearly separate from that of Scruples.

   
   

3. HRS's business consists primarily of the sale and servicing of hairpieces. In the course of that business Respondents take molds of customers' heads from which the hairpieces are designed, cut and fit the hairpieces, and provide incidental services such as cleaning and restyling the hairpieces.

   
   

4. Although any actual cutting or styling of a customer's own hair is done by a licensed cosmetologist from Scruples, Respondents do shape and fit the hairpiece. The shaping or cutting of the hairpiece is done both on and off the client's head. Additionally, in fitting the hairpiece Respondents "occasionally" comb or brush some of the client's hair.

   
   

5. Smith asserts that any such contact with the client's hair is unintentional. Smith's assertion is inherently

   improbable. Clearly, if a client has existing hair which the hairpiece is designed to match, the brushing or combining of the hairpiece on the client's head, during a "fitting," will necessarily result in the combing or brushing of the client's own hair where it meets the hairpiece. Dobson conceded that he worked the hairpiece into the natural hairline so the two blended, a technique he referred to as braiding.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. The allegations in this case are that Respondents violated Sections 477.0265(1)(b)2, 477.0265(1)(d), and 477.029(1)(c), Florida Statutes.

   
   

8. Section 477.029 provides:

   
   

   1. It is unlawful for any person to:

      
      

      * * *

      
      

      (c) Permit an employed person to practice or teach cosmetology unless duly licensed as provided in this chapter.

      
      

      * * *

      
      

      (h) Violate any provision of s. 477.0265.

      
      

9. Section 477.0265 provides in pertinent part:

   
   

   1. It is unlawful for any person to:

      
      

      * * *

      
      

      (b) Own, operate, maintain, open, establish, conduct, or have charge of either alone or with another person or persons, a cosmetology salon:

      
      

      * * *

      2. In which a person not licensed or registered as a cosmetologist is permitted to perform cosmetology services.

      
      

      * * *

      
      

      (d) Permit an employed person to engage in the practice of cosmetology unless such person holds a valid, active license as a cosmetologist.

      
      

10. The term "cosmetology" is defined by Section 477.013(5), Florida Statutes, as:

    
    

    . . . 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.

    
    

11. Petitioner asserts that Respondents, as owners and operators of HRS, violated the foregoing provisions because they engaged in hair arranging and hair braiding without benefit of licensure as cosmetologists. The record does not support Petitioner's assertions.

    
    

12. Respondents are not engaged in the practice of cosmetology. Their sole business is wiggery. Any incidental contact Respondents may have with a client's hair in fitting the hairpiece does not constitute hair arranging or hair braiding as those terms are commonly understood. The Department has not, by rule or conventional proof, expanded the meaning of hair arranging or hair braiding to encompass the incidental contact at issue in this case.

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint with prejudice.

ENTERED this 29th day of January, 1986, at Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 29th day of January, 1986.

COPIES FURNISHED:

Theodore R. Gay, Esq.

Southeast Financial Center, Suite 4530

200 South Biscayne Boulevard Miami, Florida 33131-2355

Kenneth N. ReKant, Esq. Suite 208

One Lincoln Road Building

Miami Beach, Florida 33139-2086

Brian Dobson

c/o H.R.S. of St. Petersburg 5850 54th Avenue

North 58th Street

St. Petersburg, Florida 33709

Myrtle Aase, Executive Director Board of Cosmetology

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esq. General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

APPENDIX

The Department's proposed findings are addressed as follows:

1. Adopted in substance in paragraph 1.

   
   

2. Adopted in substance in paragraph 3.

   
   

3. Adopted in substance in paragraphs 4 and 5.

   
   

4. Adopted in substance in paragraph 1.

Docket for Case No: 85-001300

Orders for Case No: 85-001300