STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7383

)

CATHY RUNKLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on March 23, 1992, in Daytona Beach, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES FOR PETITIONER: Lois B. Lepp

Senior Attorney

Department of Professional Regulation 1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

FOR RESPONDENT: Herbert Runkle

2075 South Halifax Daytona Beach, Florida

STATEMENT OF THE ISSUES

The Respondent is charged in a two count amended administrative complaint.

Count I alleges a violation of Section 477.029(1)(a) F.S., practicing cosmetology without a current active license. Count II alleges a violation of Sections 477.029(1)(i) and 477.0263(1) F.S., engaging in cosmetology services in areas other than in a licensed cosmetology salon.

PRELIMINARY STATEMENT

Prior to the taking of evidence, Herbert Runkle was examined on the record and accepted as Respondent's qualified representative pursuant to Rules 22I- 6.007, 22I-6.008, 28-5.1055, and 28-5.1056, F.A.C.

Pursuant to oral rulings on the record, official recognition has been taken of Chapter 21F-30 and Rules 21F-18.00015, 21F-20.001, and 21F-20.0015, F.A.C.

Petitioner presented the oral testimony of Linda Mantovani and had 5 exhibits admitted in evidence.

Respondent presented the oral testimony of Mildred Schwarz, Pam Rendon, and Frank Rendon, and testified in her own behalf. Respondent had one exhibit admitted in evidence.

A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of cosmetology.

   
   

2. Respondent Cathy Runkle has never been a licensed cosmetologist in the State of Florida. She has learned her hair cutting/trimming skills from books and video tapes borrowed from the public library.

   
   

3. At all times material hereto, Cathy's Place, Cathy Runkle, and Cathy's Hair Design have been unlicensed as cosmetology salons.

   
   

4. Sometime during "the Christmas holidays" (between December 25, 1990 and January 1, 1991) Respondent, her daughter, and two women friends, one of whom was Mildred Schwarz, were gathered socially at Respondent's home in Daytona, Florida. Because Respondent had just given her daughter an attractive "home permanent" and hair trim, the subject came up of whether or not the four women could start a business doing the same thing for others in their own homes and in the homes of prospective customers. Respondent prepared a sample advertising flyer in pencil on an 8 1/2 by 11-inch piece of paper that read, "Cathy's Hair Designs, Perms $40.00, Cut $10.00, Hair styling in your home." Respondent's name, home address, and telephone number were also on the sample flyer. Mildred Schwarz traced over some of the pencilled lettering on the sample flyer. The next day, Respondent gave a copy of the sample flyer to each of the three other women who had been part of the discussion. She did this so that they could decide if they wanted to be involved in such a project with her.

   
   

5. Later during the holiday period, Respondent and her daughter visited another friend, Pam Rendon, in Mrs. Rendon's home, also in Daytona, Florida.

   Mr. and Mrs. Rendon had been friends of Mr. and Mrs. Runkle for at least two years prior to this occasion. Mrs. Rendon runs a motel which is attached to her home. The office of the motel is also in the home. During this particular visit, a copy of the sample flyer was shown to Mrs. Rendon. Mrs. Rendon cautioned against any such business venture because it was too much hassle for Respondent, a housewife. Mrs. Rendon explained some of the pitfalls of running one's own business, including the need to purchase insurance. When Respondent and her daughter went home, the copy of the flyer brought by Respondent and her daughter was inadvertently left on Mrs. Rendon's office desk. It was never re- copied or distributed at the motel, and it was never even posted on the motel bulletin board. Mr. and Mrs. Rendon testified that it must have been thrown out in the trash.

   
   

6. Respondent thought about the proposed project and decided against going into business. Mildred Schwarz confirmed that the business idea was never seriously considered in the first place and that Respondent never approached her about it again. Ms. Schwarz does not know what became of her copy of the flyer.

   
   

7. There is also no evidence as to what became of the remaining two copies of the flyer. Respondent never created or distributed any more copies.

   Petitioner received a copy of the flyer in the mail as part of an anonymous complaint and presented no evidence that other copies were ever publicly circulated by anyone.

   
   

8. On one occasion either before or after the creation of the original flyer but still at a time material to the period of March 1, 1990 through March 6, 1991, the dates alleged in the amended administrative complaint, Respondent had a prearranged date for lunch with Mildred Schwarz. When Respondent arrived to pick up Ms. Schwarz at Ms. Schwarz' Daytona, Florida home, Ms. Schwarz asked Respondent to trim her hair. Respondent complied with the request. Later, Ms. Schwarz picked up Respondent's lunch check, but not as a quid pro quo for the hair trim. There is no reasonable monetary correlation between the price of this particular shared meal and the cost of a hair cut as listed on the flyer. In fact, Ms. Schwarz testified that she had "owed" Respondent the meal before and apart from the hair cut.

   
   

9. On another occasion, Respondent used a home permanent kit on Ms. Schwarz in Ms. Schwarz' home. Later, Ms. Schwarz also administered a home permanent to Respondent at Respondent's home. Both women apparently followed the directions for laymen included in the kits. These events were a courtesy exchange of favors between the two women without any disparity of cost in the permanent wave kits, which were not purchased from a cosmetology supply house.

   
   

10. Neither Respondent nor Ms. Schwarz was ill or incapacitated at any material time. Respondent never held herself out to be a licensed cosmetologist, and Ms. Schwarz never thought she was one.

    
    

11. Either before or after the creation of the original flyer, but still at a time material to the dates alleged in the administrative complaint, Respondent trimmed the hair of Pam Rendon and of her husband, Frank Rendon. She did this for each of them on several occasions. The Runkles and the Rendons play tennis together regularly and regularly visit in each others' homes. Respondent often invites herself or is invited by Mrs. Rendon to have coffee and sun herself beside Mrs. Rendon's motel pool. Respondent frequently babysits for Mrs. Rendon. No witness remembers exactly when or how the hair cutting occasions arose but each was spontaneous. Sometimes they occurred during a pick-up lunch when the families were gathered in the Rendons' kitchen. Sometimes they occurred when just Respondent and Mrs. Rendon were together and Mrs. Rendon asked Respondent to "do something" with Mrs. Rendon's hair. Once,

    at Mrs. Rendon's request, Respondent left what she was doing in her own home and came to Mrs. Rendon's house and "finished" a bad haircut Mrs. Rendon had started on herself. Respondent did not expect to be compensated for her helpfulness.

    Mrs. Rendon never offered Respondent compensation for her services. Mr. Rendon offered to pay Respondent on at least four separate occasions when she trimmed his hair, and Respondent consistently refused to take any money. Neither Mr. or Mrs. Rendon was ill or incapacitated during any of these events. Respondent never held herself out to be a licensed cosmetologist, and the Rendons never thought she was one.

    
    

12. Neither the Schwarz home nor the Rendon home is a licensed cosmetology salon.

    
    

13. Petitioner also established that on a single occasion within the time frame of the amended administrative complaint Respondent's husband took her out to dinner at a Daytona, Florida restaurant in exchange for her stopping what she was doing (presumably preparing their dinner) so as to cut and permanent his hair. Respondent's husband knew she was not a licensed cosmetologist.

14. On one other occasion, Respondent had a prearranged social visit with an old friend elsewhere in Florida. The friend telephoned and asked Respondent to buy a home permanent kit on the way. Respondent bought the kit at a Pic'N'Save for approximately $7.00 and used it on the friend when she visited with the friend. After Respondent refused the friend's offer to reimburse her for the permanent wave kit and her gas, the friend secretly slipped a $10.00 bill into Respondent's purse to cover the monies expended by Respondent. The Respondent did not return the $10.00 because she did not look in her purse until she got home. This event occurred during the time frame alleged in the amended administrative complaint.

    
    

15. Petitioner also established that at a social luncheon Respondent and other women guests, mostly Respondent's relatives by marriage, did various things to one another's hair. As a result, the bottle of wine and the food which were already on the hostess' table were dedicated to Respondent for her skill and efforts. Petitioner did not affirmatively prove that this event took place in Florida, and therefore jurisdiction of it has not been proven. Petitioner also established that while in New Mexico, Respondent gave her mother a home permanent and trimmed her mother's hair and that Respondent's mother bought Respondent lunch on a quid pro quo basis. New Mexico is outside Petitioner's jurisdiction. Neither of these incidents clearly occurred during the time frame alleged in the amended administrative complaint.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

17. Respondent is charged under the following statutes: Section 477.029(1)(a), F.S. [1989; 1990 Supp.]- Penalty-

    1. It is unlawful for any person to:

       (a) Hold himself out as a cosmetologist or specialist unless duly licensed or registered as provided in this chapter.

       ***

       1. Violate or refuse to comply with any provisions of this chapter or chapter 455 or a rule or final order of the board or the department.

          Section 477.0263(1), F.S. [1989; 1990 Supp.]

          Cosmetology services to be performed in licensed salon; exception. --

          1. Cosmetology services shall be performed only by licensed cosmetologists in licensed salons, except as otherwise provided in this section.

       
       

18. Also material here is Rule 21F-18.00015, F.A.C. which, since July 4, 1990 has provided:

    
    

    Cosmetologist and Compensation Defined. A cosmetologist is a person who is licensed to perform 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 braiding, hair coloring, permanent waving, hair relaxing, or hair removal, for

    compensation in a licensed cosmetology salon. For the purposes of this act "compensation" is defined as the payment of money or its equivalent, the receipt or delivery of property, or the performance of a service, or the receipt or delivery of anything of value in exchange for cosmetology services. For the purposes of this act "medical purposes" is defined as any form of bodily intrusion into the orifices, skin, muscles, or any other tissues of the body. [Emphasis supplied]

    
    

19. Among other things, between March 1, 1990 and July 4, 1990, Rule 21F- 18.00015, F.A.C. did not contain the language emphasized above, and the amended administrative complaint covers the time frame between March 1, 1990 and March 6, 1991. Although the amended rule language which took effect July 4, 1990 cannot be retroactively applied, the rule has always defined "cosmetologist" as a "person who is licensed to perform . . . for compensation in a licensed cosmetology salon," and the amendment to the rule which defines "compensation" is instructive of the rule's prior intent. See, by analogy, Anthony Abraham Chevrolet Inc., v. Collection Chevrolet, Inc., 533 So.2d 821 (Fla. 1st DCA 1988).

    
    

20. Rule 21F-20.001, F.A.C. defines a salon as a place of business and requires it to remain in a fixed location. Rule 21F-20.0015 F.A.C. makes an exception to the requirement that all cosmetology services be performed in a salon by permitting prearranged cosmetology services to be performed on sick or disabled persons outside a salon.

    
    

21. Cosmetology is defined as certain aestheic acts performed for compensation. Clearly, hair cutting/trimming and permanent waving hair falls within the statutory and rule definitions. However, that definition also includes the requirement that these services be done for compensation, as defined supra.

    
    

22. The only evidence supporting Petitioner's position that Respondent held herself out as a cosmetologist or was cutting hair and giving permanent waves for compensation is based on the existence of the flyer and on so-called "admissions" made by Respondent to the Department of Professional Regulation's investigator during a March 6, 1991 interview about the flyer and upon other so- called "admissions" contained in letters sent by Respondent to the Department.

    
    

23. While the investigator has been conscientious in her duties and may truthfully feel that her memory, notes, and report are accurate to the effect that during their single informal interview Respondent referred to "customers" or "clients," Respondent's layman's memory may equally truthfully recall the use of less pejorative words. Where there has never been a "meeting of minds" on a subject under discussion, witnesses often interpret conversations within their respective spheres of reference and quite truthfully believe they have heard different things. This situation does not amount to a legal "admission" by Respondent. Furthermore, which words Respondent did or did not utilize in the interview are insignificant in light of the substantial evidence that there has never been a quid pro quo exchange of property, services, or anything of value for Respondent's amateur hairdressing services within the State of Florida.

    
    

24. Indeed, in its post-hearing proposals, Petitioner concedes that the agency "does NOT contend that a wife or daughter who does her husband's or her mother's hair and is then compensated for these services is in violation of the laws which regulate the practice of cosmetology."

25. There is also absolutely no evidence that Respondent held herself out to be a skilled, licensed professional or that any of her friends relied on her being a licensed cosmetologist.

    
    

26. Cosmetology is an honorable and skilled profession and the agency has been appropriately charged by the legislature with protecting the public from amateurs and charlatans who may physically injure or disfigure them or who may bilk them out of their hard-earned dollars, but the present situation simply does not fall within that purview. The hospitality accorded Respondent by Ms. Schwarz, the Rendons, and her other friend would have been extended to her regardless of whether or not she had complied with their requests to "do" their hair. In the home permanent wave kit situations, Respondent was little more than an "extra pair of hands'" and one can only wonder why Ms. Schwarz also was not prosecuted.

    
    

27. Chapter 477, F.S. 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. See, Department of Cosmetology v. Freeman, DOAH Case No. 87-5647 (Recommended Order entered April 12, 1988 and adopted by final order).

    
    

28. Likewise, prosecution of assisted self-grooming with borrowed scissors and a $7.00 discount store home permanent kit performed in one's own or a neighbor's kitchen or dining room was never what the statute intended in prohibiting the practice of cosmetology services outside a licensed salon. Private homes are clearly not licensed salons, but herein, Respondent did not hold herself out to be a licensed cosmetologist and did not receive any quid pro quo valuables for what she did. Her social favors were not performed in a "licensed salon" but neither was she practicing "cosmetology for compensation." She did not actively disseminate any advertising of her services and she was not operating a peripatetic, unsanitary, and uninspected business such as the legislature intended to preclude by the statute and the Board intended to preclude by its rules.

    
    

29. The burden of proving all the elements of each violation is upon Petitioner. See, Ferris v. Turlington 510 So.2d 292 (Fla. 1987). All elements have not been proven and this case should be dismissed.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Cosmetology enter a final order dismissing all charges against Respondent.

DONE and ENTERED this 26th day of May, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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

26th day of May, 1992.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1-3, 5-7, 9 Accepted.

4, 8, 10, 15, Rejected as not supported by the greater weight of the credible evidence as a whole.

11-14, 17-19 Rejected as stated because not supported by the greater weight of the credible evidence as a whole or rejected as containing legal argument.

Covered in FOF 5-11.

16 Accepted that this is a direct quotation from an exhibit but it is out of context and misleading from the greater weight of the credible evidence as a whole.

Respondent's PFOF:

COUNT I

1-2, 4 Rejected as legal argument.

3 The first sentence is rejected as legal argument. The second sentence is accepted.

5, 10-15 Accepted in substance but otherwise is rejected as incomplete or subordinate or as mere recitation of testimony. Legal argument is also rejected.

6-9 What is not legal argument on credibility issues or is not subordinate to the facts as found has been accepted.

COUNT II

1-2 Rejected as legal argument but covered in substance.

Copies furnished to:

Herbert Runkle

2075 South Halifax

Daytona Beach, Florida 32118

Lois B. Lepp, Senior Attorney Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Ms. Kaye Howerton, Executive Director Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-007383

Orders for Case No: 91-007383