STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

RAQUEL SANTIAGO VEGA,

Respondent.

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) Case No. 06-1562

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 3, 2006, in Kissimmee, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Drew F. Winters, Esquire

Matt Yeager, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Raquel Santiago Vega, pro se

523 Delido Way Kissimmee, Florida 34758

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should be sanctioned for providing services as a cosmetologist without

holding an appropriate license as required by Subsection 477.0265(1)(a), Florida Statutes (2005).

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation (hereinafter "DBPR"), issued an Administrative Complaint against Respondent, Raquel Santiago Vega ("Vega"), on or about December 8, 2005. The complaint sought to impose sanctions against Vega for performing hair services without a cosmetology license.

The Administrative Complaint stated the following grounds for imposition of a sanction:

[3]. At all times material hereto, Respondent was unlicensed in the State of Florida as a cosmetologist.

1. On or about March 29, 2005, Petitioner's inspector, Daniel Hogan, conducted a routine inspection of BEAUTY GALLERY AND SPA SALON located at 2427 Pleasant Hill Road, Kissimmee, Florida 34746.

   
   

2. During the inspection, Petitioner's inspector observed Respondent cutting a customer's hair at a workstation.

   
   

3. During the inspection, JACQUELINE MATOS, salon owner, admitted that Respondent worked for the establishment for compensation for approximately twelve (12) months.

At the final hearing held on August 3, 2006, Vega testified through an interpreter on her own behalf. Vega offered one exhibit into evidence. DBPR presented the testimony of one

witness. DBPR offered four exhibits into evidence, all of which were accepted. Official recognition was also taken of Subsection 477.0265(1)(a), Florida Statutes (2005).

At the close of the evidentiary portion of the final hearing, the parties were allowed 10 "working days" from the filing of the hearing transcript within which to file their respective proposed recommended orders. A one-volume hearing Transcript was filed on September 6, 2006. DBPR filed a proposed recommended order containing proposed findings of fact and conclusions of law on September 18, 2006. Vega did not file a proposed recommended order.

FINDINGS OF FACT

1. Vega is a native of Puerto Rico and has been a hair stylist since 1984. She was employed at the Beauty Gallery and Spa Salon (the "Salon") as a shampoo girl and receptionist at all times relevant to this proceeding.

2. English is a second language to Vega, and she does not speak, read, or write the language well. At the final hearing in this matter, Vega testified through an interpreter or translator, Carmen Rodriquez.

3. DBPR is the state agency responsible for, inter alia, the licensure of cosmetologists and cosmetology establishments in Florida.

4. Daniel Hogan, JD, LLM, is a regional program administrator for DBPR, a position he has held for three years. He received training from his employer in order to perform inspections of cosmetology businesses and barbershops as part of his duties. He is responsible for the Orlando office and supervises the inspections of cosmetology and barber establishments conducted by that office. The Orlando office conducts about 3,500 such inspections each year, of which Hogan has involvement in approximately 500.

5. On or about March 29, 2005, Hogan conducted a routine annual inspection of the Salon. During the inspection, Hogan noted two individuals working at the Salon: Vega and a

   Mr. Torres. Torres was sitting at the front part of the Salon. Hogan identified himself to Vega and Torres as an inspector for DBPR. Neither Vega nor Torres could produce a cosmetology license for review by Hogan when asked.

6. Hogan saw Vega at a workstation, actively engaged in cutting a customer's hair. His efforts to question Vega concerning this matter were thwarted by Vega's inability to converse in English.

7. Vega did produce for Hogan a cosmetology license, which had been issued in Puerto Rico. She also produced a copy of a letter from DBPR wherein Vega's application for licensure had been denied. The purpose of showing those documents to Hogan

   was to show him that she was a legal resident. She had initially perceived him as an immigration officer.

8. During the course of Hogan's inspection, Ms. Matos, owner of the Salon, appeared. She confirmed to Hogan that Vega had been employed at the Salon for about twelve months. Matos did not appear at the final hearing. There was no testimony by the owner as to Vega's employment position at the Salon.

9. Upon completion of his inspection, Hogan issued an inspection report and a Citation against Vega for practicing without a license. He gave Vega a copy of the citation, which Vega signed in his presence. The citation states that Vega was practicing cosmetology without a license.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2005).

11. Vega was charged with violating Subsection 477.0265(1)(a), Florida Statutes (2005), which states:

    1. It is unlawful for any person to:

       (a) Engage in the practice of cosmetology or a specialty without an active license as a cosmetologist or registration as a specialist issued by the department pursuant to the provisions of this chapter.

12. The penalty for violation of the aforementioned provision can be any of the following, according to Subsection 477.029(2), Florida Statutes (2005):

    1. Revocation or suspension of any license or registration issued pursuant to this chapter.

    2. Issuance of a reprimand or censure.

    3. Imposition of an administrative fine not to exceed $500 for each count or separate offense.

    4. Placement on probation for a period of time and subject to such reasonable conditions as the board may specify.

    5. Refusal to certify to the department an applicant for licensure.

    
    

13. It is clear Vega did not hold a cosmetology license issued by the State of Florida at the time she worked for the Salon.

14. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Balino v. Dept. of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this case, the burden is on the regulating agency to establish the facts upon which its allegations of misconduct are based. Dept. of Transportation v.

    J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The agency must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 570 So. 2d 292 (Fla. 1987).

    Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the

    exclusion of a reasonable doubt.'" In Re Graziano, 696 So. 2d 744, 753 (Fla. 1997). For proof to be considered clear and convincing, ". . . the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994).

15. DBPR's representative made a visual determination that Vega was cutting hair without a license. It is clear from all the testimony that no one at the Salon had a valid cosmetology license at the time of the inspection. Hogan's experience allowed him to make reasonable inferences from what he saw at that time. His testimony is credible and is sufficient to meet the burden of proof required in this matter.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation upholding the fine assessed in the Administrative Complaint.

DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2006.

COPIES FURNISHED:

Raquel Santiago Vega

523 Delido Way

Kissimmee, Florida 34758

Drew F. Winters, Esquire Matt Yeager

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

Robyn Barineau, Executive Director Board of Cosmetology

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 06-001562

Orders for Case No: 06-001562