STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1147

)

GASTON EUGENE, )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 88-1806

)

SECRET DE FEMME, INC., d/b/a ) SECRET DE FEMME HAIR SCULPTURE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 20, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondents Gaston Eugene, pro se Case No. 88-1147: 65 Northwest 54th Street

Miami, Florida 33127

Case No. 88-1806: Amantha Jean-Joseph and

Serge Jean-Joseph, pro se

65 Northwest 54th Street Miami, Florida 33127

BACKGROUND

In an administrative complaint filed in Case No. 88-1147 on January 19, 1988, petitioner, Department of Professional Regulation, Board of Cosmetology, charged that respondent, Gaston Eugene, who is not licensed by the Board, was performing cosmetology services on October 31, 1987 at a salon in Miami,

Florida. According to the complaint, this conduct constituted a violation of Subsections 477.0265(1)(b) and (d), and 477.029(1)(c) and (h), Florida Statutes (1987). In a second administrative complaint filed in Case No. 88-1806 on January 19, 1988, the Board charged that respondent, Secret de Femme, Inc. d/b/a Secret de Femme Hair Sculpture, a licensed cosmetology salon, had violated the same statutes by allowing an unlicensed individual (Gaston Eugene) to practice cosmetology in its salon.

Respondents disputed the allegations and requested formal hearings pursuant to Section 120.57(1), Florida Statutes (1987). The matters were referred by petitioner to the Division of Administrative Hearings on March 2 and April 18, 1988, with requests that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated March 22, 1988, a final hearing in Case No. 88-1147 was scheduled on April 20, 1988 in Miami, Florida. By agreement of the parties, the two cases were heard on a consolidated record.

At final hearing, petitioner presented the testimony of Frank Hautzinger, an agency investigator, and offered petitioner's exhibits 1-3. Both exhibits were received in evidence. Respondent Secret de Femme, Inc. presented the testimony of its owners, Amantha and Serge Jean-Joseph.

There is no transcript of hearing. The parties waived their right to file proposed findings of fact and conclusions of law.

The issue is whether respondents should be disciplined for the alleged violations set forth in the two administrative complaints.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Secret de Femme d/b/a Secret de Femme Hair Sculpture, operates a cosmetology salon at 65 Northwest 54th Street, Miami, Florida. It is the holder of cosmetology salon license number 0040317 issued by petitioner, Department of Professional Regulation, Board of Cosmetology (Board).

   Respondent, Gaston Eugene, does not hold any licenses issued by the Board.

   
   

2. On or about November 5, 1987, a Board investigator, Frank Hautzinger, made a routine inspection of respondent's salon. 1/ When he entered the premises, he found a few persons in the salon, including one seated in a barber's chair. According to Hautzinger, respondent, Gaston Eugene, was "finishing up" the person seated in the chair. By this, Hautzinger meant that Eugene was brushing around the person's neck and collar as if he had just given that person a haircut. However, he did not actually see Eugene cutting hair, and Eugene received no compensation for his "services." Because Eugene speaks little or no English, Hautzinger was unable to carry on a meaningful dialogue with Eugene. He did learn that Eugene did not have a cosmetology license.

   
   

3. A short time later, one of the owners, Amantha Jean-Joseph, returned to the salon. When questioned by Hautzinger about Eugene, she described Eugene as a temporary employee obtained through a local employment service. However, at hearing she denied making this statement.

   
   

4. Both owners emphatically denied that Eugene was authorized to cut hair. Instead, they described his role as being limited to cleaning up the working area, cleaning barber tools, and opening and closing the shop. According to

   Amantha, on the day that Hautzinger visited the shop, Eugene had simply agreed to cut a nose hair of a friend and nothing more.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

6. Respondents are charged with violating numerous provisions in Sections 477.0265 and 477.029, Florida Statutes (1987). The charges stem from Eugene, who is unlicensed, allegedly performing cosmetology services in the salon on November 5, 1987. To determine whether cosmetology services were actually performed, it is necessary to refer to Subsection 477.013(5), Florida Statutes (1987), which defines "cosmetology" as follows:

   
   

   477.013 Definitions. -- As used in this chapter:

   * * *

   (5) "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. (Emphasis added)

   
   

   Therefore, in order for a person to provide cosmetology services within the meaning of the law, he must receive compensation.

   
   

7. In the case at bar, the evidence is not clear and convincing that Eugene was actually cutting hair since the investigator observed only the so- called "finishing up" of services. Even if this conduct constituted what is normally considered to be a cosmetology service, there is no evidence that Eugene received any compensation. Since compensation is a necessary element in the statutory scheme, the Board has failed to prove that an unlicensed person was performing cosmetology services in respondent's salon. The charges must accordingly fail.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges be DISMISSED.

DONE AND ORDERED this 22nd day of April, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 22nd day of April, 1988.

ENDNOTE

1/ The two complaints allege that the inspection, and observed violation, occurred on October 31, 1987.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

Gaston Eugene

65 Northwest 54th Street Miami, Florida 33127

Amantha Jean-Joseph and Serge Jean-Joseph

65 Northwest 54th Street Miami, Florida 33127

Myrtle Aase Executive Director Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001147

Orders for Case No: 88-001147