The Issue Respondents' alleged violation of Sections 477.02(4), 477.15(8) & 477.27(1), Florida Statutes.
Findings Of Fact Respondent Corporation operates the Get Your Head Together Cosmetology Salon at 687 N.E. 79 Street, Miami, Florida, under Certificate of Registration Number 15219 issued by Petitioner on February 15, 1971. On April 7, 1975, Petitioner's Inspector visited Respondent's place of business and found two cosmetologists, Sergio Ruiz Calderon and Silvia Gonzalez, engaging in the practice of cosmetology without the presence of a master cosmetologist. Calderon was drying a customer's hair with a blower and Gonzalez was providing another customer with frosting and a hair cut. (Testimony of Patrick). Respondent's President, Geno Tranchida, testified that his brother, a master cosmetologist, was due to arrive at the salon at noon on April 7, and that he therefore left for lunch about 11:45 after instructing his employees not to perform any work while he was gone. The employees disregarded these orders and when Geno Tranchida returned his brother called and informed him that he was ill. (Testimony of Geno Tranchida).
Recommendation That Respondent be issued a written reprimand for the violation of Section 477.02(4), Florida Statutes DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald C. LaFace, Esquire P.O. Box 1752 Tallahassee, Florida Geno and Peter Tranchida c/o Get Your Head Together, Inc. 687 N.E. 79 Street Miami, Florida
The Issue The issue is whether Respondent's license as a cosmotologist should be disciplined for the reasons cited in the Administrative Complaint filed on June 20, 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This proceeding involves a complaint that Respondent, Timothy C. Troutman, a licensed cosmetologist since 1981, engaged in "misconduct" while employed as an instructor at Riverside Hairstyling Academy (RHA) in Jacksonville, Florida. When the events herein occurred, Respondent was licensed as a certified cosmetologist having been issued license number CL 0134716 by Petitioner, Department of Business and Professional Regulation, Board of Cosmetology (Board). RHA is certified as a cosmetology school and has several campuses, including one on Beach Boulevard in Jacksonville, Florida. The school is owned by Respondent's father, Howard Troutman. Respondent was employed as a floor instructor at RHA. In this capacity, he supervised the activities of approximately twenty students at any given time, as they performed cosmetology services. The underlying charges in this matter are that: (a) Respondent improperly touched Neva A. Choulat, a former student; (b) he made threatening telephone calls to, and improperly touched, Joanna Flowers, a customer; and (c) he made sexually explicit remarks to, and inappropriately touched, Nora Maszey, a former student. As to Maszey, it is also alleged that Respondent threatened to "affect her school credits if she made trouble for him." Each set of charges will be discussed separately below. Count I In this count, it is alleged that, while giving a facial to Choulat, Respondent "proceeded to massage her bare breasts underneath [her] smock," "directly touched her nipples and rubbed her breasts," and "rubbed his hands up and down her sides to include the sides of her breasts." On December 5, 1995, when she was sixteen years of age, Choulat enrolled at RHA in order to pursue her goal of completing RHA's 1200-hour cosmetology course and ultimately obtaining a cosmetology license. At that time, she was a full-time high student and attended RHA as a night/weekend student in addition to her high school studies. Prior to August 24, 1996, Choulat had no problems of any kind with Respondent, and they had a normal student-teacher relationship. On August 24, 1996, Choulat was performing cosmetology services on four clients. Throughout the morning, Respondent repeatedly asked Choulat if she wanted him to give her a facial. She agreed, and after lunch, Respondent took Choulat to a small room that was used for the giving of facials. The room had no windows, and the door was closed during the giving of the facial. Respondent instructed Choulat to remove her shirt and bra and don a smock. He left the room while she did so. When he returned to the room, he closed the door and told Choulat to lie down and close her eyes. Respondent then took Choulat's arms out of the smock. At that point, she had nothing covering her torso, except for a large towel that Respondent had placed over her chest. Respondent started performing the facial, but he quickly moved beyond the acceptable scope of a facial. Without asking Choulat's permission, Respondent rubbed his hand down her lower back, touched her breasts and nipples, and rubbed his hands down her sides, touching the sides of her breasts. At first, Choulat was too frightened to cry out or protest. However, Respondent asked her if she wanted him to stop, to which she replied "yes." Respondent then left the room, and Choulat put her clothes back on. After dressing, Choulat went to the beginner's room and began crying. She then told another student, Cynthia Summers, that Respondent had touched her breasts in the facial room. Summers advised Choulat to tell her mother. Later that afternoon, Summers confronted Respondent and told him that she was aware of his actions with Choulat and that this was a stupid thing to do with a seventeen-year-old student. In response, Respondent stated that "it was stupid of me." When Summers asked Respondent what would happen if Choulat went to the police or his father, Respondent replied "I hope she don't." At approximately 2:30 p.m. the same day, Choulat filed a complaint with the Jacksonville Sheriff's Office regarding Respondent's conduct. Choulat reported that Respondent had touched her breasts without her permission. She followed up by telling her parents, filing a complaint with the Office of the State Attorney, and reporting the incident to Respondent's father. Choulat disenrolled from RHA a few weeks later, despite having invested more than $2,400.00 in tuition payments. She stopped her course of studies and is now employed in another field. Although Choulat has a pending civil action against Respondent and RHA, her testimony is found to be credible. This finding is based on Choulat's consistent account of the incident over time, her actions immediately after the incident occurred, the corroborating testimony of Summers, an impartial witness, and the admissions made by Respondent to Summers immediately after the incident. Respondent's contentions that Choulat had initiated the subject of getting a facial, that the smock was never removed, that nothing improper occurred during the fifteen- minute demonstration, and that he made no incriminating admissions to witness Summers have been rejected. The evidence established that while a facial may extend below the neck, at no point does it include massaging of breasts and nipples, nor should it extend below the upper portion of the shoulder blades in the back, or below the armpit level on the front of the body. Further, it is not an acceptable teaching practice to give a private facial to a student outside of a classroom setting. Therefore, Respondent's conduct with student Choulat equates to misconduct in the practice of cosmetology. Count II The second count alleges that while giving a hair cut to Joanna Flowers in 1995, Respondent "placed her long hair over her breasts" and "stroked her breast under the pretext of stroking her hair." The complaint also alleges that he "rubbed his penis up against Ms. Flowers' hands and/or arms while they were resting on the arms of the chair," and that he thereafter telephoned Flowers "numerous times at her home" and she "felt threatened by [the calls]." Flowers, who is now twenty-two years of age, occasionally went to RHA in 1992 or 1993 for hair cuts. RHA records show that she went only twice. On both occasions, a receptionist would assign a staff member to cut her hair. On her second visit in the fall of 1993, Respondent was assigned by the receptionist to cut her hair. Flowers had long hair which went over her upper chest and fell to a length that was below her breasts. Following the initial haircut, Respondent checked the cut to determine whether it was even. While checking the length of the cut, Respondent pulled the hair down in front of Flowers and his hand may have accidentally touched her breasts. However, if such touching occurred, it was not intentional, and it was not inappropriate to check the length of the cut in this manner. At the same time, Respondent's "crotch area [was] at the same level that the arm rest is on the chair," and while leaning over the chair, Respondent may have accidentally come into contact with Flowers' arm. Again, however, if a touching occurred, it was unintentional. Finally, there was no testimony to support the allegation that Respondent called Flowers on numerous occasions at home in a threatening fashion. Count III The last count alleges that "on numerous occasions" between 1995 and 1996, Respondent "touched the chest and buttocks [of Norah Homan, now Norah Maszey] in an inappropriate manner." The complaint also alleges that Respondent made "sexual references and innuendos regarding her," and that Respondent "implied" to her that "he could affect her school credits if she made trouble for him." Based on Respondent's alleged misconduct, Maszey subsequently filed a civil action against Respondent and RHA. Maszey, now twenty-seven years of age, was a cosmetology student at RHA between March 1995 until her graduation in March 1996. During her tenure at RHA, Respondent was one of her instructors. In September 1995, while in a floor setting learning how to cut and style hair, Maszey went to the supply room to "get a tube of color off the shelf." As she was bending over with her back to the door, Respondent came up behind her and placed "his hands right on the inside of [her] buttocks." Although Respondent did not touch the vaginal area, "he was as close as he could have been without" actually touching it. Maszey jumped up and Respondent "just smiled and acted kind of scared" and said he was "sorry." By inappropriately touching Maszey in this fashion, Respondent committed misconduct in the practice of cosmetology. Except for this incident, however, there was no other credible evidence that Respondent inappropriately touched Maszey "on numerous occasions," as alleged in the complaint. During Maszey's tenure as a student at RHA, Respondent occasionally told her that she "was pretty." But this remark alone does not rise to the level of constituting "sexual references and innuendos," as alleged in the complaint. Indeed, Maszey simply described these comments as being "way too much complimenting," but nothing more. Finally, there is less than clear and convincing evidence to support the allegation that Respondent threatened to take away her credits if she "made trouble for him." Mitigating and Aggrevating Factors Mitigating factors Respondent has been licensed as a cosmetologist for seventeen years. Except for the two inappropriate touchings of Choulat and Maszey, which occurred more than two years ago, he has an unblemished record. Respondent has worked in his father's school since the age of twenty. The loss of a license will deprive him of working in his life-long profession and cause financial harm to Respondent and his family. Contrary to Petitioner's suggestion, Respondent is not found to be a "grave danger to the public" should he retain his license. Aggrevating factors Respondent improperly touched two young women, each on one occasion. By doing so, he breached the position of trust he held as an instructor. After being inappropriately touched in 1996, Choulat lost her desire to pursue a career field in cosmetology and left the school. She also lost approximately $2,463.00 she had invested in the school. In addition, she sought counseling from a social worker. Although Maszey eventually graduated from RHA, she no longer works in the profession and now prefers to work alone at home. At the same time, however, she stated that "Tim is [not] responsible for absolutely all of that, but he sure did not help."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Cosmetology enter a Final Order finding Respondent guilty of violating Sections 477.028(1)(b) and 477.029 (1)(h), Florida Statutes, by inappropriately touching students Choulet and Maszey, and that Respondent's license number CL 0134716 be revoked. All other charges should be dismissed. DONE AND ENTERED this 21st day of April, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1998. COPIES FURNISHED: Elizabeth C. Masters, Esquire 7960 Arlington Expressway Suite 230 Jacksonville, Florida 32311 Michael R. Yokan, Esquire 204 Washington Street Jacksonville, Florida 32202 Joe Baker, Executive Director Board of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0790 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent allowed cosmetologists to work in Otto's Beauty Salon without a master cosmetologist being present. Whether Respondent's license should be revoked, annulled, withdrawn, or suspended.
Findings Of Fact Respondent appeared in person and admitted the violation as charged by the Complainant. Respondent is the occasional manager of Otto's Beauty Salon. Respondent is the master cosmetologist and the only master cosmetologist working in Otto's Beauty Salon. Respondent was absent from the shop as charged by the Board during working hours and during the time cosmetologists were working in said salon.
