STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5647

)

RUTH E. FREEMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

This action came on for hearing before the Division of Administrative Hearing's duly designated Hearing Officer, Diane Cleavinger on March 14, 1988, in Pensacola, Florida. The parties were represented by counsel:

For Petitioner: Laura Gaffney, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Ruth E. Freeman, pro se

882 Anita Avenue

Pensacola, Florida 32505

The issue in this case is whether the Board of Cosmetology should suspend, revoke or take other disciplinary action against the cosmetology license of Respondent, Ruth E. Freeman, on the ground alleged in the Administrative Complaint dated November 17, 1987, and filed by Petitioner on the same date.

The ground for discipline alleged in the complaint is that Respondent operated an unlicensed beauty salon in her home in violation of Section 477.029(1)(b) and (h), Florida Statutes (1985) , and Section 477.0265(1)(b)(1), Florida Statutes (1985), which prohibit the operation of a cosmetology salon without a current active salon license.

At the hearing, Petitioner called Lutrel Raboteaux, an investigator for Petitioner, and submitted one exhibit consisting of an affidavit of licensure on Respondent's license. Respondent testified in her own behalf and called Marie Smith, a friend of Respondent, as a witness. Respondent did not submit any exhibits. Petitioner submitted proposed Findings of Fact and Conclusions of Law on March 29, 1988. Respondent did not submit a proposed Recommended Order.

Petitioner's proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed cosmetologist in the state of Florida, holding license number CL-0167327. She makes her home at 882 Anita Avenue, Pensacola, Florida, along with her husband and children. Respondent works at a relative's beauty salon in another location.

   
   

2. Respondent has been interested in hair weaving or braiding for several years. Hair weaving or braiding is done by hand, by intertwining strands of hair. No tools are used other than a needlelike instrument used for lifting up strands of hair and sewing in synthetic or human hair. An individual's hair is not treated with any type of chemical, nor is it cut or shampooed. Such manipulation of the hair is somewhat difficult and requires practice in order to weave hair well.

   
   

3. On or about October 20, 1987, Lutrel M. Raboteaux, an investigator for the Board of Cosmetology, contacted Respondent regarding a complaint they had received about her from Denise Bryant. 1/ Mr. Raboteaux's investigation centered on whether Respondent was maintaining a cosmetology salon in her home. The only items Mr. Raboteaux found at Ms. Freeman's home were a broken chair type hair dryer and a couple of well used bottles of hair supplies for black hair. Ms. Freeman had been given the broken hair dryer. She had never used the dryer since it was not in working order. The bottles were for personal use and were only used by Ms. Freeman and her family.

   
   

4. About two years ago, Respondent met Marie Smith. They became good friends. Through their friendship, Ms. Smith discovered that Ms. Freeman knew how to do hair weaving. Ms. Smith was interested in having her hair woven, and asked Respondent to weave her hair.

   
   

5. Ms. Smith, in return for Respondent's weaving her hair, tutored one of Respondent's children. The hair weaving and tutoring took place at Ms. Freeman's home and consisted mostly of tightening the weave as Ms. Smith's hair grew. Ms. Smith viewed the hair weaving arrangement as more of a quid pro quo for tutoring Respondent's child. Respondent viewed the hair weaving arrangement on more of a friendship basis as a favor for a favor.

   
   

6. Other than this one arrangement, Ms. Freeman would practice hair weaving on her family and some of her friends. They would ask her to weave their hair. As was the case with Ms. Smith, they would ask her to weave their hair and she would perform that task for them. Again as with Ms. Smith, Respondent would weave the hair of her friends at her home. She did not charge for her services.

   
   

7. Any hair weaving that took place in Ms. Freeman's home was for free. She never received any money from the individuals she practiced on at her home. The only time she may have received anything was the tutoring swap described earlier involving Ms. Smith. Likewise, Ms. Freeman supplied no chemicals or other supplies necessary for her friends to get their hair woven. Her friends supplied those items at their own expense.

   
   

8. Ms. Freeman's sole reason for weaving her friends' hair was to practice the art of hair weaving which she wished to specialize in. It is clear that Ms. Freeman never intended to operate a hair weaving business in her home and did not consider her home in anyway to be a beauty salon. Her home is not open to the public. Her home did not contain any equipment or chemicals used in a beauty salon. No evidence was presented that she keeps regular hours or

   appointments at her home. On the contrary, she in fact works at another beauty salon in Pensacola. Additionally, Ms. Freeman asked one of her teachers at a cosmetology school in Pensacola if it was all right for her to practice hair weaving at her home for free. She was informed that it was not against Florida Law and was otherwise completely unaware that there may be a problem with not having her home licensed as a salon.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

   
   

10. Petitioner has the burden of proving by clear and convincing evidence that a violation of Chapter 477, Florida Statutes, has occurred. Bowling v. Dept. of Ins., 394 So.2d 165 (Fla. 1st DCA 1981); Reid v. Fla. Real Estate Comm., 188 So.2d 846 (Fla. 2d DCA 1966).

    
    

11. Cosmetology is defined as the mechanical or chemical treatment of head, face, and scalp for aesthetic rather than medical purposes for compensation and includes hair arranging. 477.013(5), Florida Statutes. Clearly, hair weaving falls within the statutory definition of cosmetology. However, that definition also includes the requirement that the hair weaving be done for compensation.

    
    

12. Compensation is defined by Webster's II Dictionary as something given or received as payment or reparation. The only action of Respondent which may fall within the above definition would be her weaving of Marie Smith's hair and the concomitant swap for tutoring services. The evidence did not demonstrate any meeting of the minds between Ms. Smith and Ms. Freeman on the character of this swap. A swap between friends, without more, does not raise itself to the level of compensation which would impose lability on Respondent under Chapter 477, Florida Statutes. Without more, the Department has failed to present clear and convincing evidence that Respondent engaged in the practice of cosmetology for compensation in her home. Respondent's home would, therefore, not require a license to operate as a salon since cosmetology was not performed on the premises.

    
    

13. Moreover, Respondent's home cannot be considered a salon and therefore subject to licensure under Chapter 477, Florida Statutes. A salon is defined to be any establishment or place of business wherein cosmetology ... is practiced

... 21F-20.001, F.A.C. Section 477.013(9), Florida Statutes, defines specialty salon as any place of business wherein the practice of one or all of the specialties ... are engaged in or carried on. It is clear that Chapter 477, Florida Statutes, was intended to regulate the business of cosmetology in relation to salon licensing. Chapter 477 was never intended to regulate non- business, familial or friendly types of activity except where such activity raises itself to the level of practicing cosmetology for compensation. Then a cosmetologist's license, not a salon license, would be required. Fixing a few family and friends' hair is simply not clear and convincing evidence that Ms.

Freeman operated a business at her home. In fact, the evidence clearly showed that there was no such intent on the part of Ms. Freeman and that she in fact did not operate a business at her home.

RECOMMENDATION

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

That the complaint against Ms. Freeman be dismissed.

DONE and ORDERED this 12th day of April, 1988, in Tallahassee, Florida.

DIANE CLEAVINGER

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 12th day of April, 1988.

ENDNOTE

1/ No other evidence regarding Denise Bryant's complaint was submitted at the Hearing and apart from the fact that a complaint was filed no further Findings of Fact are made regarding Ms. Bryant.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5647

Petitioner's Proposed Finding of Fact Numbers 1, 2, 3, 4, 5 and 9 have been adopted, in substance, insofar as material.

Petitioner's Proposed Finding of Fact Number 6 is not material. Petitioner's Proposed Finding of Fact Number 7 is subordinate.

Petitioner's Proposed Finding of Fact Numbers 8 and 10 were not shown by the evidence.

COPIES FURNISHED:

Laura Gaffney, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Ruth E. Freeman 822 Anita Avenue

Pensacola, Florida 32505

Ms. Myrtle Aase, Executive Director Board Of Cosmetology

Department of Professional Regulation Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-005647

Orders for Case No: 87-005647