STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. )

) DANIA R. CALIX and LES SCISSORS ) UNISEX SALON, )

)

Respondents. )

Case Nos. 06-2329PL

06-2330

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on August 8, 2006, in Miami, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: Dania Calix, pro se1

1012 South 26th Avenue Hollywood, Florida 33020

STATEMENT OF THE ISSUES

As to DOAH Case 06-2329PL, whether Ms. Calix violated the provisions of Section 477.0265(1), Florida Statutes (2005),2 by

engaging in the practice of cosmetology without an active license as alleged in the subject Administrative Complaint.

As to DOAH Case 06-2330, whether Les Scissors Unisex Salon (Les Scissors) violated Section 477.0265(1)(b)2., Florida Statutes, by permitting an unlicensed person (Ms. Calix) perform cosmetology services as alleged in the subject Administrative

Complaint.

PRELIMINARY STATEMENT

On February 8, 2006, Petitioner’s inspector conducted an inspection of the business premises of Les Scissors. Based on that inspection, Petitioner filed the two Administrative Complaints that underpin these consolidated proceedings. Those Administrative Complaints framed the issues identified above.

Respondents timely disputed the material factual allegations of the Administrative Complaints, they were referred to DOAH, and this consolidated proceeding followed.3

At the final hearing, Petitioner presented the testimony of Idelmis Delrio, the inspector who conducted the subject inspection; and, in rebuttal, Guillermo Tejeda, the supervisor of Ms. Delrio. Mr. Tejeda was present during part of

Ms. Delrio’s inspection. Petitioner presented three exhibits, each of which was admitted into evidence. Ms. Calix testified on behalf of the Respondents, but offered no exhibits.

A Transcript of the proceedings was filed on September 20, 2006. Petitioner filed a Proposed Recommended Order, which has been duly-considered by the undersigned in the preparation of this Recommended Order. Respondents did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Les Scissors held Cosmetology Salon license number CE9961882 issued by the Board of Cosmetology.

2. At all times relevant to this proceeding, Ms. Calix was the owner of Les Scissors. At no time relevant to this proceeding did Ms. Calix hold any license issued by the Board of Cosmetology.

3. At all times relevant to this proceeding, Ms. Delrio was an inspector employed by Petitioner. On February 8, 2006, Ms. Delrio inspected the premises of Les Scissors. This inspection occurred during the noon hour. Ms. Delrio saw

   Ms. Calix giving a man a manicure. Ms. Delrio then testified to two statements made by the man she saw in Les Scissors. First, she testified that he told her that he was a customer. Second, she testified that he said that he was paying seven dollars for the manicure. This man was not identified by name by

   Ms. Delrio. Ms. Delrio did not see the man pay for his manicure.

4. In February 2006, Ms. Calix was attending a school to become licensed as a cosmetologist. Ms. Calix testified that the man Ms. Delrio saw was not a customer, but he was a friend to whom she was giving a manicure in preparation for a test she was to take at her school. Ms. Calix denied that she charged her friend for the manicure. Ms. Calix testified that the licensed personnel of Les Scissors were out to lunch when the inspector came. Ms. Calix further testified that she used the noon hour to practice for the examination while she watched the premises.

5. Mr. Tejeda testified that he came into Les Scissors toward the end of Ms. Delrio’s inspection. Mr. Tejeda testified that the man identified himself as a customer.

6. There was a conflict in the evidence as to the status of the man receiving the manicure from Ms. Calix on the date of the inspection. The testimony of Ms. Delrio and Mr. Tejeda as to what the man in Les Scissors told them on February 6, 2006, is hearsay within the meaning of Section 90.801(1)(b), Florida Statutes.4 That hearsay evidence, standing alone, was insufficient to establish that the man was a customer or that he was obligated to pay for the manicure he was receiving.5 Moreover, the undersigned finds Ms. Calix’s explanation of the circumstances observed by the inspector and her supervisor to be credible.

7. The conflict in the evidence is resolved by finding that Petitioner failed to prove that the man receiving the manicure from Ms. Calix at the time of the inspection was a customer, and Petitioner failed to prove that the man was obligated to pay for the manicure.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).

9. Petitioner bears the burden of proving that Respondents committed the violations alleged in the respective Administrative Complaints. See Department of Banking and Finance, Division of Securities and Investor Protection v.

   Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Pic N' Save of Central Florida v. Department of Bcusiness Regulation, 601 So. 2d 245, 249 (Fla. 1st DCA 1992); and Section 120.57(1)(j), Florida Statutes. It is immaterial in this proceeding whether that burden of proof is deemed by a preponderance of the evidence or by clear and convincing evidence. Under either standard, Petitioner failed to meet its burden.

10. When Petitioner seeks to take disciplinary action against a person or business entity, such action may be based

    only upon those offenses specifically alleged in the administrative complaint. See Cottrill v. Department of

    Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Chrysler v. Department of Professional Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993);

    Arpayoglou v. Department of Professional Regulation, 603 So. 2d

    
    

    8 (Fla. 1st DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1992); Celaya v. Department of Professional Regulation, Board of

    Medicine, 560 So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v.

    
    

    Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of

    Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

    
    

11. The subject Administrative Complaints are premised on the factual allegation that at the time of the inspection, Ms. Calix was engaged in the unlicensed practice of cosmetology by giving a paying customer a manicure.

12. Section 477.013(4), Florida Statutes, defines the term “cosmetology” to include certain activities, including the giving of a manicure, for compensation. Had Petitioner proved by competent evidence that Ms. Calix gave a customer a manicure for which she charged a fee, the alleged violations against both

Respondents would have been established. Because Petitioner failed to prove the factual predicate, the charges against both Respondents should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner dismiss both Administrative Complaints.

DONE AND ENTERED this 10th day of October, 2006, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 10th day of October, 2006.

ENDNOTES

1/ At the times relevant to this proceeding, Ms. Calix, the individual named as the Respondent in DOAH Case 06-2329PL, was the owner of the business entity named as the Respondent in DOAH Case 06-2330. Edilberto Ocasio, the husband of Ms. Calix, assisted in the presentation of Respondents’ case and served as translator for his wife. Mr. Ocasio’s translations were verified by Petitioner’s two witnesses, who are fluent in Spanish and English.

2/ All statutory references are to Florida Statutes (2005).

3/ At the beginning of the formal hearing, the undersigned, while on the record, ordered the consolidation of the two cases. A written order has confirmed that order.

4/ Section 90.801(1)(b), Florida Statutes, defines hearsay to include a “ ... statement, other than by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

5/ Section 120.57(1)(c), Florida Statutes, limits the use of hearsay evidence in a DOAH formal hearing as follows:

(c) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

COPIES FURNISHED:

Charles Tunnicliff, Esquire Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Dania R. Calix

1012 South 26th Avenue Hollywood, Florida 33020

Robyn Barineau, Executive Director Board of Cosmetology

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 06-002329PL

Orders for Case No: 06-002329PL