The Issue The issues are whether Respondent practiced beyond the scope of her nail specialist license by performing waxing treatments on a customer in violation of Subsections 455.227(1)(o) and 477.029(1)(i), Florida Statutes (2007),1 and, if so, what penalty should be imposed.
Findings Of Fact Several material facts are undisputed. Petitioner is the state agency responsible for licensing and regulating the practice of cosmetology in Florida. At all times material to this proceeding, Respondent was licensed in the state as a nail specialist pursuant to license number FV 9527661. Respondent's license does not authorize her to perform hair removal wax treatments. The disputed material facts are whether Respondent performed hair removal wax treatments on Ms. Priya Bhuta on February 21, 2008, and collected $24.00 for the service. For the reasons stated hereinafter, clear and convincing evidence does not show that Respondent committed the disputed material facts. Ms. Bhuta did not testify at the final hearing. Petitioner did not submit her deposition testimony for admission into evidence. Petitioner seeks to prove the disputed material facts with the statements of two investigators concerning alleged statements of Respondent. One investigator did not testify at the hearing (hereinafter, the investigator-in-absentia). The other investigator testified at the hearing (hereinafter, the investigator-witness). The investigator-witness testified that the investigator-in-absentia told the investigator-witness in a private conversation between the two investigators that Respondent made the alleged statements to the investigator-in- absentia. For reasons discussed in the Conclusions of Law, the ALJ does not find the testimony of the investigator-witness pertaining to any alleged statements by Respondent to be admissible. If the alleged statements were found to be admissible, the statements are not credible or persuasive and do not form an adequate basis for a finding of fact. Respondent testified at the hearing, and the fact- finder finds Respondent's testimony to be credible and persuasive. Respondent did not perform wax treatments on Ms. Bhuta, and Respondent did not make the alleged statements attributed to her in the hearsay testimony of the investigator- witness. The alleged offense occurred on February 21, 2008, according to paragraph number 4 in the Administrative Complaint. The investigator-in-absentia conducted the field interview of Respondent, in which the alleged statements occurred, on the morning of February 21, 2008, prior to the opening of business and prior the time of day when the alleged violation occurred.2 It is not plausible to the trier of fact that Respondent made the alleged statements to the investigator-in-absentia pertaining to a violation in futuro. The trier of fact resolves the evidential conflict in favor of Respondent for reasons described more fully in the Conclusions of Law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Cosmetology, enter a final order finding Respondent not guilty of the violations charged in the Administrative Complaint. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2010.
The Issue Whether Respondent, Patsy Arline and Roberta Stein, doing business in a partnership allowed a non-licensed person to practice cosmetology in their beauty salon, to-wit: one Gloria Gann. Whether Respondent's License No. 19208 should be revoked.
Findings Of Fact Notice of Service was entered without objection and marked Exhibit 1. The Complaint with the license attached thereto was entered into evidence as Exhibit 2 without objection. The Respondents were duly sworn. Respondents admit that they allowed a person who was non- registered to practice cosmetology in the salon known as the Yellow Tulip which they own and operate as a partnership under License No. 19208. Respondents did not know of the serious consequences of their act.
The Issue The Respondent's alleged violation of Section 477.02(1)&(3), Florida Statutes, and Rule 21F-3.10, Florida Administrative Code.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the alleged violations against the Respondent be dismissed. 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 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1976. COPIES FURNISHED: Ronald C. LaFace, Esquire P. O. Box 1752 Tallahassee, FL 32302 Ms. Herta Hill 126 S. W. 49th Street Cape Coral, FL
Findings Of Fact The Respondent was duly sworn. Notice of Service was entered without objection and marked Exhibit 1. The Complaint with Election of Remedies attached thereto was entered into evidence as Exhibit 2 without objection. Respondent was practicing cosmetology as charged by the Board. Respondent is not a registered licensed cosmetologist.
Recommendation Dismiss the Complaint. August 27, 1975 Date DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida Gloria Gann 178 Highland Street Cocoa, Florida Mary Alice Palmer Executive Director Board of Cosmetology Post Office Box 9087 Winter Haven, Florida 33880
