STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF COSMETOLOGY, )

)

Petitioner, )

)

vs. )

)

REYNA I. GUZMAN, )

)

Respondent. )

Case No. 06-2249

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on August 11, 2006, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Tiffany A. Harrington

Drew F. Winters, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Reyna I. Guzman, pro se

2257 Southwest 3 Street

Miami, Florida 33135 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent engaged in the practice of cosmetology without a license, a legally prohibited

act which, if performed, would warrant the imposition of sanctions.

PRELIMINARY STATEMENT

On May 18, 2006, Petitioner Department of Business and Professional Regulation (the "Department") issued an Administrative Complaint against Respondent Reyna I. Guzman, alleging therein that Ms. Guzman had engaged unlawfully in the unlicensed practice of cosmetology. Ms. Guzman disputed the material factual allegations against her and timely requested a hearing. On June 23, 2006, the Administrative Complaint was referred to the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct a final hearing of the matter. Both sides were properly notified that the final hearing would occur via teleconference at 1:00 p.m. on August 11, 2006.

Both parties appeared for final hearing, the Department through a qualified representative. The Department presented the testimony of its employees Garry Joinville and Julio Zeledon. In addition, the Department offered Petitioner's Exhibits 2 and 3, both of which were received in evidence. Ms. Guzman testified on her own behalf and offered no exhibits.

The transcript of the final hearing was filed on August 21, 2006. The Department submitted a proposed recommended order that has been carefully considered.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2005 Florida Statutes.

FINDINGS OF FACT

1. Respondent Reyna I. Guzman ("Guzman") is an individual who, at all relevant times, was employed as a cashier or administrative assistant at Koko Cuts Hair and Color Salon ("Koko Cuts") in Miami, Florida. Although Koko Cuts is a Florida-licensed salon, Guzman herself is not licensed in Florida as a cosmetologist.

2. On February 2, 2006, two investigators of Petitioner Department of Business and Professional Regulation ("Department") entered Koko Cuts to perform an inspection. They observed Guzman "working on" a woman's hair. The woman was sitting in a stylist's chair and appeared to be a regular customer.

3. In fact, however, the "customer" was Guzman's sister.

   
   

   Guzman's boss had granted Guzman permission to color her sister's hair, using the chemicals and supplies on hand at the salon. Guzman was performing this service for her sister for free.

4. Guzman testified credibly, and the undersigned finds, that Guzman was not paid any money for coloring her sister's hair. There was, moreover, neither clear and convincing, nor even merely persuasive, evidence that Guzman received any other

   service or thing of value in consideration for the work that she performed on her sister's hair.

5. Based on the instant record, it is determined, as a matter of ultimate fact, that Guzman received no "compensation"—

   —as that term is defined in Florida Administrative Code Rule 61G5-18.00015——in exchange for performing the service of coloring her sister's hair.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

7. Because the Department is urging the Board of Cosmetology to impose an administrative fine on Guzman, the Department bears the burden of proving the allegations of its Administrative Complaint by clear and convincing evidence. Department of Banking and Fin., Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 935 (Fla. 1996); see also § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute[.]").

8. It is unlawful to "[e]ngage in the practice of cosmetology . . . without an active license as a cosmetologist[.]" § 477.0265(1)(a), Fla. Stat.; see also §

   477.029(1)(h), Fla. Stat. (unlawful to violate any provision of

   
   

   § 477.0265).

   
   

9. The term "cosmetology" is defined as meaning

   
   

   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, and hair relaxing for compensation. This term also includes performing hair removal, including wax treatments, manicures, pedicures, and skin care services.

   
   

   § 477.013(4)(emphasis added). The Department conceded at hearing that, pursuant to the foregoing definition, services performed for free——that is, not in exchange for compensation—— are not, as a matter of law, "cosmetology" services within reach of the Florida Cosmetology Act.

10. By rule, the Board of Cosmetology has defined the term "compensation" as follows:

    For the purposes of [the Florida Cosmetology Act,] "compensation" is defined as the payment of money or its equivalent, the receipt or delivery of property, or the performance of a service, or the receipt or delivery of anything of value in exchange for cosmetology services.

    
    

    Fla. Admin. Code R. 61G5-18.00015.

    
    

11. As found above, the evidence presented in this case fails convincingly——or even persuasively, i.e. by the greater

    weight——to establish that Guzman received "compensation" for coloring her sister's hair.

12. Consequently, the undersigned concludes that Guzman did not unlawfully engage in the practice of cosmetology.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Cosmetology enter a final order acquitting Guzman of the charges that the Department brought against her in this proceeding.

DONE AND ENTERED this 14th day of September, 2006 in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2006.

COPIES FURNISHED:

Reyna I. Guzman

2257 Southwest 3 Street

Miami, Florida 33135

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Robyn Barineau, Executive Director Board of Cosmetology

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0790

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 06-002249

Orders for Case No: 06-002249