STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1581

) RONALD BANNETT and STYLE AND ) COLOR OF SUNRISE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties on May 28, 1986, a hearing was held in this case in Fort Lauderdale, Florida, on August 27, 1986, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings. The issue for consideration was whether Respondent's licenses to practice cosmetology and to operate a cosmetology salon in Florida, respectively, should be disciplined because of the alleged misconduct outlined in the Administrative Complaint.

APPEARANCES

Petitioner: Jane H. Shaeffer, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Respondent: Robert Fogan, Esquire

2170 S.E. 17th Street

Fort Lauderdale, Florida 33316 BACKGROUND INFORMATION

On April 4, 1986, Fred Roche, Secretary of the Department of Professional Regulation, (DPR), filed an Administrative Complaint in this case alleging that Respondent was guilty of delivering cosmetology services in a negligent and incompetent manner in violation of Sections 477.028 and .029, Florida Statutes, 1983. On April 21, 1986, Respondent executed an Election of Rights form on which he disputed the allegations and requested a formal hearing. On May 8, 1986, the file was forwarded to this Division for the appointment of a Hearing Officer and the parties were thereafter notified of the date and location of the hearing.

At the hearing Petitioner presented the testimony of Lucille Markowitz, an investigator with DPR; JoAnne Young, the complainant; Beverly Faye Glover, a neighbor of complainant; Tammy Annette Kuhn and Lauren V. Korman, licensed cosmetologists; and Migdalia Jimenez, a cosmetology consultant for DPR. Petitioner also introduced Exhibits 1 through 5. Respondent testified in his

own behalf and presented the testimony of Elizabeth Anne Ayotte and Lisa Marie Ascolo, both employees. Respondent offered no exhibits. The Hearing Officer took official recognition of Sections 477.028 and .029, Florida Statutes, 1983.

Subsequent to the hearing, the parties submitted post hearing proposed Findings of Fact which have been carefully considered herein and ruled upon in the Appendix hereto.

FINDINGS OF FACT

1. The parties stipulated to the fact that the Petitioner has jurisdiction over both Respondents. In addition, Petitioner presented the licensing history of each Respondent which reflected that both possess current appropriate licenses.

   
   

2. On March 4, 1985, Respondent, at his shop, accomplished a foil frosting on the complainant, Ms. Young, who had visited Respondent's shop for hair dressing services several times in the past. On each occasion, Respondent worked on her himself giving her over the period three permanent waves and four frostings. Ms. Young was familiar with the frosting process having had her hair done that way since 1967.

   
   

3. There are several legitimate ways a hair frosting can be done. One is through a cap placed over the head with strands of hair pulled through small holes and bleached. In the foil frosting method, the affected strands of hair are isolated, bleach is applied, and the bleached hair is wrapped in a piece of foil until done. Frosting can be considered light, medium, or heavy, depending upon the amount of hair that is frosted. Ms. Young usually has a heavy frosting done.

   
   

4. The last two times Respondent frosted her hair prior to the incident complained of here, Ms. Young contends her hair came out orange and red instead of blonde. She complained to Respondent about this both in person and by phone and Respondent allegedly told her he would correct the problem by first applying a dye to her hair and then frosting it.

   
   

5. On the day in question, according to Ms. Young, Respondent did as he said he would and dyed her hair a deep brown. He then started to frost it even though she advised him at the time the dye had come out too dark. According to Ms. Young, Respondent told her not to worry about it.

   
   

6. Ms. Young relates that Respondent left the bleach on her hair almost four hours. He checked her hair several times during that period but did nothing to stop the bleaching process. She contends she told Respondent that she was under the dryer too long but he either ignored her or told her to be quiet. After she became seriously concerned that her hair might be damaged, Ms. Young took herself out from under the dryer and began to remove the foil. At this point, she contends, Respondent came and took her to the wash area where he unwrapped the remaining foil packets and had Ms. Ayotte wash the bleach out of Ms. Young's hair. After this was done, Ms. Young was put back under the dryer and at this point, Ms. Young alleges, when she felt her hair, it had the consistency of taffy . She poked at it with a hair pick and found that large amounts of hair broke off each time she touched it. When she showed this to Respondent, he allegedly stated it was only dead ends coming off. At this

   point, convinced she would get no satisfaction from the Respondent, she paid him the charge for a frosting and left the shop. Respondent, she claims, refused to do anything more for her at the time but merely told her to go home and put a conditioner on her hair.

   
   

7. According to Ms. Young, her hair continued to come out all evening each time she touched it which highly distressed and upset her, a state confirmed by her neighbor. By the following morning, she claims, she had accumulated seven or eight baggies of her hair which had come out. No matter how much she washed it and put conditioner on it, nothing helped and her hair continued to come out.

   
   

8. The day after her visit to Respondent's shop, Ms. Young went to a beauty supply house where she was sold a vitamin treatment for her hair which she applied. Several days later she went to the beauty shop run by Ms. Kuhn where her hair was examined not only by Ms. Kuhn but also by Ms. Korman, both of whom concluded that her hair had been overly processed. She was given a procedure to follow for conditioning her hair which was trimmed back to a maximum length of two to three inches all over her head.

   
   

9. Ms. Young indicates that the previous frostings she was given by Respondent were satisfactory as to hair texture if not as to color. However, she contends that the procedure he used on this occasion was different than that he used previously. She believes 75 percent of her hair had bleach applied to it.

   
   

10. As a result of her dissatisfaction with Respondent, Ms. Young wrote a letter of complaint to DPR followed up by a formal complaint. The resultant file was forwarded to Ms. Markowitz, the local investigator, whose report was forwarded to Ms. Jimenez for consultation. Ms. Jimenez neither examined Ms. Young nor spoke with any of the witnesses involved but, based solely on her evaluation of the file only, which included Ms. Young's written statement, concluded Respondent was guilty of extreme negligence. She based her opinion on Ms. Young's recitation of the procedure followed by Respondent, and she readily admits that if the information given her was not accurate, her opinion would not be valid necessarily.

    
    

11. Mr. Bannett does not deny applying a bleach solution to Ms. Young's hair and admits to having done each of her three previous frostings. He contends, however, that she was satisfied each time.

12 As a professional beautician, he has done thousands of frostings over the thirty or more years he has been in the business and has not experienced any problems until this time. He claims to work as a mechanic rather than as an artist in that he does a frosting the same way each time and does not deviate from his procedure. He believes that only through a routine can he effectively accomplish the process successfully. He categorically denies having dyed Ms. Young's hair before frosting it stating that to do so would have been counterproductive. It would require the bleaching of not only the natural hair color but also the dyed and would mean the bleach would have to stay on far too long. In a situation needing a color change, he puts the coloring on the hair remaining uncovered after the application of the foil packs.

1. In a frosting Mr. Bannett starts at the bottom of the head applying the bleach and wrapping the treated area. He then does the sides the same way and works his way up to the top. It takes him about 20 to 25 minutes to accomplish all the treating and wrapping, after which he places the customer under the dryer for another 25 minutes. At that point, after 45 to 50 minutes,

   he checks the color of the hair. If it appears to be appropriate, he has the bleach washed from the customer's hair. If the color is not right, he replaces the wrapper and lets the bleach stay a little longer.

   
   

2. Mr. Bannett contends that when he checked Ms. Young's hair it was right and Ms. Ayotte washed out the bleach. Not only Mr. Bannett, but also Ms. Ayotte and Ms. Ascola, both of whom were present and observed Ms. Young during the process contend she was happy with the result. They also deny that prior to the frosting Ms. Young's hair was orange or red. If Ms. Young was unhappy, they say, it was because of other matters because she left the shop happy with the way her hair looked when Mr. Bannett was through.

   
   

3. Unfortunately, though Mr. Bannett indicates he routinely makes records of the service he gives each of his customers, if the customer does not return to the shop within a short period of time, he destroys them. Here, even though Ms. Markowitz interviewed him only slightly more than three months after the incident in question, the records had already been destroyed and he could not recall what was on them. As a result, his testimony is based solely on his limited recollection and his usual routine.

   
   

4. It is most unlikely, however, that if Ms. Young were as unhappy as she relates, some other customer in the shop would not have overheard her discussions with Respondent or observed the state of her hair. She presented no evidence other than her own allegations as to what happened in the shop. The other evidence as to the cause of the damage was not incident specific. The over application could have been by anyone, including the complainant.

   
   

5. On balance, therefore, it would appear that without question Mr. Bannett did a frosting of Ms. Young's hair on the date alleged. There is also no doubt that the hair was damaged by the improper application of chemicals to it. However, Petitioner has failed to conclusively show that it was Respondent who improperly applied these chemicals.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

7. In the Administrative Complaint, Petitioner alleges that Respondent violated Sections 477.028 and .029, Florida Statutes, (1983), by being so negligent and incompetent in the performance of the foil frosting procedure on Ms. Young that it caused her hair to fall out.

   
   

8. Section 477.025, at subparagraph (1)(b), permits the Board of Cosmetology to discipline the license of a cosmetologist:

   
   

   (b) upon proof that the holder of a license is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct

   in the practice or instruction of cosmetology....

   
   

   If gross negligence, incompetency, or misconduct is established to constitute a violation of the statute, that violation constitutes a violation of Section

   477.029 which makes it unlawful to violate the former statute and provides the various penalties.

9. When a regulatory agency attempts to discipline the license of an individual to practice a profession or trade, it must do so on the basis of a clear and convincing showing of the commission of proscribed misconduct and the evidence to show this misconduct must be of a quality proportionate to the severity of the punishment intended. Bowling v. Department of Insurance, 394 So.2d 165 (1st DCA Fla. 1981).

   
   

10. Here, in the equipoisal situation presented, there is no doubt that Mr. Bannett worked on Ms. Young's hair and performed a foil frosting. However, the evidence of his gross negligence or incompetency is not clear and convincing. The evidence presented of prior disciplinary infractions is so remote in both time and relationship as to be of no value whatever in evaluating the current situation.

RECOMMENDATION

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

RECOMMENDED that the Administrative Complaint in this case against the Respondents Ronald Bannett and Style and Color of Sunrise, Inc., be dismissed.

DONE and ORDERED this 10th day of November, 1986, at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1581

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4 Accepted and incorporated.

5-8 Rejected as unproven.

9 Accepted and incorporated.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Accepted and incorporated.

2. Rejected as irrelevant to resolution of the issues of fact. 3&4 Rejected as recitations of the evidence and not findings of

fact.

5 Rejected as commentary on the evidence and not as finding of fact.

COPIES FURNISHED:

Jane H. Shaeffer, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Robert Fogan, Esquire 2170 S.E. 17th Street

Fort Lauderdale, Florida 33316

Myrtle Aase, Executive Director Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001581

Orders for Case No: 86-001581