STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6271

)

ANGELA MARIA WYNTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 17, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Anthony Cammarata, Esquire

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Angela Maria Wynter, pro se

13715 Northeast 4th Court Miami, Florida 33168

STATEMENT OF THE ISSUE

At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By administrative complaint dated March 20, 1992, petitioner charged respondent with having practiced cosmetology without a current active cosmetology license in violation of Section 477.029(1)(a), Florida Statutes. In response, respondent denied that she had engaged in such conduct, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Charles Frear as a witness, its exhibits C-K were received into evidence, and its motion for official recognition, filed March 5, 1993, was granted. Respondent testified on her own behalf, but offered no exhibits.

The transcript of the hearing was filed April 1, 1993, and the parties were granted leave until April 12, 1993, to file proposed findings of fact.

Petitioner elected to file such proposals and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Angela Maria Wynter, has not, at any time material hereto, been licensed to practice cosmetology in the State of Florida.

   
   

2. On January 25, 1992, during a routine inspection of Geta's Beauty Phase II, 19905 Northwest 2nd Avenue, Miami, Florida, respondent was observed "combing out" the dry hair of a woman seated in a beauty chair. When asked for her cosmetology license, respondent replied that she did not have one because she was only the shampoo girl. When informed that the services she was performing were beyond those of shampooing, which the inspector advised were limited to washing the hair and drying it with a towel, respondent ceased her activities and the customer moved to another chair where she was attended by a licensed person. 1/

   
   

3. Regarding respondent's employment at the salon, the proof demonstrates that she was employed to work Saturdays, at a rate of $30.00 a day, to shampoo customers' hair, and had been so employed for approximately three weeks before the subject inspection. In addition to shampooing hair, respondent's employment also included "combing out" customers' hair after it had been dried. Respondent was not, however, shown to have engaged in hair arranging or styling, as those terms are commonly used, nor was she shown to have engaged in hair cutting or other activities that might be perceived as the practice of cosmetology as defined by Section 477.013(4), Florida Statutes, discussed infra, or to have held herself out to the public as being available to perform such activities.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

   
   

5. At issue in this case is whether respondent's conduct violated the provisions of Section 477.029(1)(a), Florida Statutes. In cases of this nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

6. Pertinent to this case, Section 477.029, Florida Statutes, provides:

   
   

   1. It is unlawful for any person to:

      (a) Hold himself out as a cosmetologist or specialist unless duly licensed or registered as provided in this chapter.

      * * *

   2. Any person who violates the provisions of this section shall be subject to one or more of the following penalties, as determined by the board:

      1. Revocation or suspension of any license or registration issued pursuant to this chapter.

      2. Issuance of a reprimand or censure.

      3. Imposition of an administrative fine not to exceed $500 for each count or separate offense.

      4. Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

      5. Refusal to certify to the department an applicant for licensure.

         
         

7. The Legislature has recognized that "the practice of cosmetology involves the use of tools and chemicals which may be dangerous when applied improperly" and, therefore, has deemed it necessary to regulate the practice of cosmetology. Section 477.012, Florida Statutes. The Legislature has, however, provided certain exemptions from regulation, including that exception provided by Section 477.0135(2), Florida Statutes, which provides that "a license is not required of any person whose occupation or practice is confined solely to shampooing.

   
   

8. "Cosmetology" and "shampooing" are defined in Section 477.013, Florida Statutes, as follows:

   
   

   (4) "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, hair removing, pedicuring, and manicuring, for compensation.

   * * *

   (7) "Shampooing" means the washing of the hair with soap and water or with a special preparation, or applying hair tonics.

   
   

9. Here, while respondent's activities may have gone beyond "shampooing," as that term is defined by Chapter 477, Florida Statutes, the proof is not compelling that respondent's act of "combing out" a customer's hair after it had been dried constituted the practice of "cosmetology," or that respondent otherwise held herself out as a cosmetologist.

   
   

10. In determining whether a person has violated Section 477.029(1)(a), Florida Statutes, one "must bear in mind that it is, in effect, a penal statute

    . . . [T]his being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Further, if there are any ambiguities, such must be construed in favor of the .

    . . [respondent]." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

11. Keeping such standards in mind, it is concluded, for the reasons that follow, that respondent's simple act of "combing out" a customer's hair after it had been dried was not shown to constitute "hair arranging" within the meaning of Section 477.013(4), Florida Statutes, and, therefore, respondent did not practice cosmetology.

    
    

12. While "hair arranging" is not defined by Chapter 477, the petitioner's rules, consistent with accepted meaning, equate "hair arranging" with hair

styling. See, e.g., Rule 21F-22.010, Florida Administrative Code. Indeed, "hair arranging (styling)" envisions as an objective the "[arrangement] of a client's hair into a style of the client's choice through the development of dexterity, coordination and strength in creating designs and patterns" Id.

Such activity bears no resemblance to respondent's simple act of "combing out" a customer's hair, and such simple activity is not reasonably proscribed by Section 477.029(1)(a), Florida Statutes. Moreover, as heretofore noted in the findings of fact, the proof fails to demonstrate that respondent ever held herself out as a cosmetologist, i.e.,: "as a person who is licensed to perform 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 braiding, hair coloring, permanent waving, hair relaxing or hair removal, for compensation." Rule 21F-18.00015, Florida Administrative Code. Under such circumstances, the proof fails to demonstrate that respondent's conduct violated the provisions of Section 477.029(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative

complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of April 1993.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April 1993.

ENDNOTE

1/ After the customer moved to the other chair she was observed to have handed an unknown amount of money to respondent which respondent then gave to the salon manager. What the money was for is, at best, speculative, and such proof does not support the conclusion that such monies were paid to respondent for any particular service she may have performed.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2 & 3. Adopted in paragraphs 2 and 3.

4, 6, 7 and 9: Adopted in paragraph 2.

5. Subordinate or not relevant.

8. Addressed in paragraphs 2 and 8-12.

1. Addressed in endnote 1.

2. Addressed in paragraph 8.

3. Rejected as contrary to the proof. See paragraphs 2, 3 and 8-12, and endnote 1.

COPIES FURNISHED:

Anthony Cammarata, Esquire Senior Attorney

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Angela Maria Wynter

13715 Northeast 4th Court Miami, Florida 33168

Kaye Howerton, Executive Director Board of Cosmetology

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

Suite 60

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.

Docket for Case No: 92-006271

Orders for Case No: 92-006271