v STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2118

)

TRACEY RENEE MONROE, )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 89-2446

)

MARTHA HYLTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on July 12, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Tobi Pam, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0729

For Respondent: James W. Evans, Esquire

Post Office Box 420187 Miami, Florida 33142

STATEMENT OF THE ISSUES

Whether the Respondents committed the offenses set forth in the respective Administrative Complaints filed in this case and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated March 1, 1989, Petitioner charged that Respondent, Tracey Renee Monroe, violated the provisions of Sections 477.028(1)(b) and 477.029(1)(h), Florida Statutes. The gravamen of Petitioner's

charges is the assertion that Respondent, Tracey Renee Monroe and Respondent, Martha Hylton, in the application of certain chemicals on the hair of Mary Hampton committed fraud, deceit, gross negligence, incompetency or misconduct.

At the hearing, Petitioner called three witnesses and offered five exhibits, one of which was admitted into evidence. Respondents testified on their respective behalf.

At the conclusion of Petitioner's case, Respondent moved to dismiss Petitioner's complaints. Ruling on Respondent's motion was reserved until the issuance of this recommended order and as addressed in the findings of fact and conclusions of law below.

A transcript of the hearing was ordered, and the parties were granted leave until August 7, 1989, to file proposed findings of fact. Neither party elected to file proposed findings of fact.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Tracey Renee Monroe, was licensed by the Florida Cosmetology Board, and Respondent, Martha Hylton, was licensed by the Florida Cosmetology Board.

   
   

2. On or around December 10, 1988, customer, Mary Jean Hampton went to Cora's Beauty Salon in Miami, Florida, to have her hair done by her usual cosmetologist, Martha Hylton. Ms. Hampton had been a regular customer of Ms. Hylton for approximately two years.

   
   

3. When Ms. Hampton arrived, Ms. Hylton examined Ms. Hampton's hair, and they both decided that it was time to apply a chemical relaxer to Ms. Hampton's hair. Without performing a test of the chemical's reaction to a strand of Ms. Hampton's hair (strand test), Ms. Hylton proceeded with the application using a chemical she had used previously on Ms. Hampton's hair. When the chemical was removed, a substantial portion of hair in the crown area of Ms. Hampton head broke, leaving her with the appearance of spot balding. Ms. Hampton also suffered from a pre-existing skin condition which Ms. Hylton protected with base.

   
   

4. When the breakage was noted, Ms. Hylton conferred with other cosmetologists in the salon and with Ms. Hampton. Ms. Hampton then mentioned that she had recently used a shampoo and conditioner, Flex, which she had not previously used. A decision was made that Respondent, Tracey Renee Monroe, would apply a procedure, bonding, to Ms. Hylton's head. Bonding involves gluing hair to the scalp and weaving the glued hair in with the remaining hair.

   
   

5. The damage to Ms. Hampton hair was caused by the chemical relaxer. The proof failed to demonstrate that the bonding procedure contributed to the hair loss.

   
   

6. Although performing a strand test prior to any chemical application on the hair is the acceptable procedure, the proof demonstrated that the practice is not consistently followed when a practitioner is familiar with a client's hair as Ms. Hylton knew Ms. Hampton's hair.

7. On balance, the proof fails to demonstrate that either Respondent, Tracey Renee Monroe or that, Respondent, Martha Hylton, committed fraud, deceit, gross negligence, incompetency or misconduct within the intent of the Florida Cosmetology Act.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

   
   

9. Section 477.029(1)(h), Florida Statutes states the following:

   
   

   1. It is unlawful for any person to:

      (h) Violate an provision of s. 477.0265, s. 477.028, or s. 455.227(1).

      
      

10. Section 477.028(1)(b), Florida Statutes states that:

    
    

    1. The board shall have the power to revoke or suspend the license of a cosmetologist or a cosmetology instructor licensed under this chapter, or the registration of a specialist registered under this chapter, and to reprimand, censure, deny subsequent licensure or registration or, or otherwise discipline a cosmetologist, a specialist, or a cosmetology instructor licensed or registered under this chapter in any of the following cases:

       (b) Upon proof that the holder of a license or registration is guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice or instruction of cosmetology or a specialty.

       
       

11. Under existing law, the burden is on Petitioner to demonstrate by clear and convincing evidence that Respondent violated the provisions of Sections 477.029(1)(b) and 477.028(1)(h) Florida Statutes. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Here, Petitioner failed to sustain its burden as to Respondent, Tracey Renee Monroe and as to Respondent, Martha Hylton.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, as to Respondent, Martha Hylton, it is

RECOMMENDED that the administrative complaint be dismissed.; and Based on the foregoing findings of fact and conclusions of law, as to

Respondent, Tracey Renee Monroe, it is

RECOMMENDED that the administrative complaint be dismissed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th of August 1989.

JANE C. HAYMAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August 1989.

COPIES FURNISHED:

Tobi Pam, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

James W. Evans, Esquire Post Office Box 420187 Miami, Florida 33142

Ms. Myrtle Aase Executive Director

Florida Board of Cosmetology 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0729

Docket for Case No: 89-002118

Orders for Case No: 89-002118