Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been at all times material to the instant case, a State of Florida-licensed cosmetologist (license number CL 0127356) and the owner and operator of Marie's Beauty Salon, a State of Florida-licensed cosmetology salon (license number CE 0040980) located in Fort Lauderdale. Leonard Baldwin is an inspector with the Department. Baldwin has conducted various inspections of Marie's Beauty Salon. His last inspection was conducted on April 24, 1992. 2/ Nancy Victor is not now, nor has she ever been, licensed to practice cosmetology, or any specialty area thereof, in the State of Florida. Victor was hired by Respondent to work as a shampooist in Respondent's salon. Her first day of work was April 24, 1992. At around noon on that day the mother of a young customer walked into the salon to pick up her daughter. The daughter, however, was not ready to leave. She still had rollers in her hair. The mother was in a hurry. She approached Victor and asked her to remove the rollers from her daughter's hair. Victor obliged the mother and began removing the rollers. Respondent, who was working on the hair of a customer seated in the chair next to the one in which the daughter was seated, overheard the discussion between the mother and Victor. Respondent was aware that it was unlawful for a person to practice cosmetology in the State of Florida without a license. Furthermore, she knew that Victor did not have a license to practice cosmetology in this state. Nonetheless, inasmuch as she was busy with another customer and Victor did not have any shampooing that she needed to do, Respondent allowed Victor to remove the rollers from the daughter's hair. As Victor was removing the roller's from the daughter's hair, Baldwin entered the salon to conduct a routine inspection. When Respondent saw Baldwin, she instructed Victor to stop what she was doing and leave the area. Victor did what she was told and went to the rear of the salon. Respondent then went over to the daughter and finished removing the rollers from her hair.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Cosmetology enter a final order finding that Respondent violated Section 477.029(1)(c), Florida Statutes, as alleged in the Administrative Complaint, and fining her $75.00 for having committed said violation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of September, 1992. STUART M. LERNER 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 15th day of September, 1992.
The Issue Respondent's alleged violation of Sections 477.02(4), 477.27(1) & 477.15(8), Florida Statutes.
Findings Of Fact Respondent operates a cosmetology salon, Mourine's of Palm Beach, located at 261 Sunrise Avenue, Palm Beach, Florida, under Certificate of Registration to operate a cosmetology salon No. 18118 OB. Petitioner's inspector visited Respondent's salon at 1:30 P.M. on April 23, 1976 at which time she found Respondent working on two patrons. Respondent is not a master cosmetologist and informed the Inspector that her master cosmetologist was out to lunch. After the Inspector has remained on the premises for approximately 45 minutes Respondent stated that the master cosmetologist was not working that day. (Testimony of Padgett) Respondent submitted an affidavit that on the date in question while working in her salon Inspector Padgett found patrons under dryers without the presence of her master cosmetologist who had taken her lunch hour in order to go to the doctor. Respondent stated that she was not working on patrons at this time and had not after the master had left the shop. Respondent further stated that the master operator returned approximately 20 minutes after the inspector had left the premises. (Affidavit of Witmer)
Recommendation That Respondent be issued a written reprimand for 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 Mourine Witmer 6361 South Atterly K Lantana, Florida 33462 Donald Kohl, Esquire 3003 South Congress Avenue Palm Springs, Florida 33461
The Issue Whether Respondent's cosmetology license should be suspended, revoked or whether Respondent should be disciplined for conduct, as a licensee, which will be set forth hereinafter in detail.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the proposed memoranda and the entire record compiled herein, the following relevant facts are found: Noella C. Papagno (herein sometimes referred to as Respondent) is a licensed cosmetologist under the laws of the State of Florida and has been issued License Number CL 0107656, which license is current through June, 1984. Respondent has been practicing cosmetology for approximately twenty-five (25) years and, prior to being licensed in Florida, was licensed to practice in Rhode Island. (Petitioner's Composite Exhibit No. 1.) Richard Gloss has been employed in the Building and Zoning Department for the City of Dania, Florida, for the past two (2) years. On or about October 12, 1981, Gloss received a complaint that Respondent was operating a salon at one of the ticket booths located at the flea market, 1930 North Federal Highway in Dania Florida. Gloss made a routine inspection through the flea market and observed a sign in front of a ticket booth occupied by the Respondent where upon he approached Respondent and identified himself as an employee of the City of Dania in the Building and Zoning Department. After identifying himself, Gloss inquired of Respondent whether she was properly licensed to conduct a beauty salon. Prior thereto, Respondent had offered to cut his hair. Respondent admits to having offered to cut Gloss's hair and related that she had been cutting hair at that location for approximately two and one half (2 1/2) years and that she charged customers from $.50 to $4.00, depending on the length of their hair and the amount of time it took to cut it. She also explained that she had two (2) licenses -- her cosmetology license and a Broward County Council license -- in order to carry on this business. Respondent described in a very detailed manner her method of water hair cutting and she explained that she used no chemicals and did not attempt to perform any kind of chemical services. Additionally, Respondent testified that she suffers from various allergies and her physician has cautioned her to stay away from dust in beauty salons. (Respondent's Exhibits Nos. 4 and 7.) In mitigation, Respondent offered the fact that she was providing a service which would not be otherwise available and that the equipment that she used is sanitized and that theme was no testimony offered by Petitioner of any ill effects by her operation at the subject facility. Finally, Respondent feels that the Board should grant her a specialty license, although she has not applied for a license based on her feelings that it would not be granted. [Testimony of Respondent and Edmund Gabler, a Broward County resident and customer of Respondent for approximately two (2) years.]
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent be placed on probation for a period of one (1) year, during which time she must comply with all provisions of Chapter 477, Florida Statutes, and rules promulgated thereunder, specifically including the proviso that she not practice cosmetology in an unlicensed location. RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1982.
Findings Of Fact The parties stipulated to the fact that the Petitioner has jurisdiction over both Respondents. In addition, Petitioner presented the licensing history of each Respondent which reflected that both possess current appropriate licenses. On March 4, 1985, Respondent, at his shop, accomplished a foil frosting on the complainant, Ms. Young, who had visited Respondent's shop for hair dressing services several times in the past. On each occasion, Respondent worked on her himself giving her over the period three permanent waves and four frostings. Ms. Young was familiar with the frosting process having had her hair done that way since 1967. There are several legitimate ways a hair frosting can be done. One is through a cap placed over the head with strands of hair pulled through small holes and bleached. In the foil frosting method, the affected strands of hair are isolated, bleach is applied, and the bleached hair is wrapped in a piece of foil until done. Frosting can be considered light, medium, or heavy, depending upon the amount of hair that is frosted. Ms. Young usually has a heavy frosting done. The last two times Respondent frosted her hair prior to the incident complained of here, Ms. Young contends her hair came out orange and red instead of blonde. She complained to Respondent about this both in person and by phone and Respondent allegedly told her he would correct the problem by first applying a dye to her hair and then frosting it. On the day in question, according to Ms. Young, Respondent did as he said he would and dyed her hair a deep brown. He then started to frost it even though she advised him at the time the dye had come out too dark. According to Ms. Young, Respondent told her not to worry about it. Ms. Young relates that Respondent left the bleach on her hair almost four hours. He checked her hair several times during that period but did nothing to stop the bleaching process. She contends she told Respondent that she was under the dryer too long but he either ignored her or told her to be quiet. After she became seriously concerned that her hair might be damaged, Ms. Young took herself out from under the dryer and began to remove the foil. At this point, she contends, Respondent came and took her to the wash area where he unwrapped the remaining foil packets and had Ms. Ayotte wash the bleach out of Ms. Young's hair. After this was done, Ms. Young was put back under the dryer and at this point, Ms. Young alleges, when she felt her hair, it had the consistency of taffy . She poked at it with a hair pick and found that large amounts of hair broke off each time she touched it. When she showed this to Respondent, he allegedly stated it was only dead ends coming off. At this point, convinced she would get no satisfaction from the Respondent, she paid him the charge for a frosting and left the shop. Respondent, she claims, refused to do anything more for her at the time but merely told her to go home and put a conditioner on her hair. According to Ms. Young, her hair continued to come out all evening each time she touched it which highly distressed and upset her, a state confirmed by her neighbor. By the following morning, she claims, she had accumulated seven or eight baggies of her hair which had come out. No matter how much she washed it and put conditioner on it, nothing helped and her hair continued to come out. The day after her visit to Respondent's shop, Ms. Young went to a beauty supply house where she was sold a vitamin treatment for her hair which she applied. Several days later she went to the beauty shop run by Ms. Kuhn where her hair was examined not only by Ms. Kuhn but also by Ms. Korman, both of whom concluded that her hair had been overly processed. She was given a procedure to follow for conditioning her hair which was trimmed back to a maximum length of two to three inches all over her head. Ms. Young indicates that the previous frostings she was given by Respondent were satisfactory as to hair texture if not as to color. However, she contends that the procedure he used on this occasion was different than that he used previously. She believes 75 percent of her hair had bleach applied to it. As a result of her dissatisfaction with Respondent, Ms. Young wrote a letter of complaint to DPR followed up by a formal complaint. The resultant file was forwarded to Ms. Markowitz, the local investigator, whose report was forwarded to Ms. Jimenez for consultation. Ms. Jimenez neither examined Ms. Young nor spoke with any of the witnesses involved but, based solely on her evaluation of the file only, which included Ms. Young's written statement, concluded Respondent was guilty of extreme negligence. She based her opinion on Ms. Young's recitation of the procedure followed by Respondent, and she readily admits that if the information given her was not accurate, her opinion would not be valid necessarily. Mr. Bannett does not deny applying a bleach solution to Ms. Young's hair and admits to having done each of her three previous frostings. He contends, however, that she was satisfied each time. 12 As a professional beautician, he has done thousands of frostings over the thirty or more years he has been in the business and has not experienced any problems until this time. He claims to work as a mechanic rather than as an artist in that he does a frosting the same way each time and does not deviate from his procedure. He believes that only through a routine can he effectively accomplish the process successfully. He categorically denies having dyed Ms. Young's hair before frosting it stating that to do so would have been counterproductive. It would require the bleaching of not only the natural hair color but also the dyed and would mean the bleach would have to stay on far too long. In a situation needing a color change, he puts the coloring on the hair remaining uncovered after the application of the foil packs. In a frosting Mr. Bannett starts at the bottom of the head applying the bleach and wrapping the treated area. He then does the sides the same way and works his way up to the top. It takes him about 20 to 25 minutes to accomplish all the treating and wrapping, after which he places the customer under the dryer for another 25 minutes. At that point, after 45 to 50 minutes, he checks the color of the hair. If it appears to be appropriate, he has the bleach washed from the customer's hair. If the color is not right, he replaces the wrapper and lets the bleach stay a little longer. Mr. Bannett contends that when he checked Ms. Young's hair it was right and Ms. Ayotte washed out the bleach. Not only Mr. Bannett, but also Ms. Ayotte and Ms. Ascola, both of whom were present and observed Ms. Young during the process contend she was happy with the result. They also deny that prior to the frosting Ms. Young's hair was orange or red. If Ms. Young was unhappy, they say, it was because of other matters because she left the shop happy with the way her hair looked when Mr. Bannett was through. Unfortunately, though Mr. Bannett indicates he routinely makes records of the service he gives each of his customers, if the customer does not return to the shop within a short period of time, he destroys them. Here, even though Ms. Markowitz interviewed him only slightly more than three months after the incident in question, the records had already been destroyed and he could not recall what was on them. As a result, his testimony is based solely on his limited recollection and his usual routine. It is most unlikely, however, that if Ms. Young were as unhappy as she relates, some other customer in the shop would not have overheard her discussions with Respondent or observed the state of her hair. She presented no evidence other than her own allegations as to what happened in the shop. The other evidence as to the cause of the damage was not incident specific. The over application could have been by anyone, including the complainant. On balance, therefore, it would appear that without question Mr. Bannett did a frosting of Ms. Young's hair on the date alleged. There is also no doubt that the hair was damaged by the improper application of chemicals to it. However, Petitioner has failed to conclusively show that it was Respondent who improperly applied these chemicals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Administrative Complaint in this case against the Respondents Ronald Bannett and Style and Color of Sunrise, Inc., be dismissed. DONE and ORDERED this 10th day of November, 1986, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1581 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4 Accepted and incorporated. 5-8 Rejected as unproven. 9 Accepted and incorporated. Rulings on Proposed Findings of Fact Submitted by the Respondent Accepted and incorporated. Rejected as irrelevant to resolution of the issues of fact. 3&4 Rejected as recitations of the evidence and not findings of fact. 5 Rejected as commentary on the evidence and not as finding of fact. COPIES FURNISHED: Jane H. Shaeffer, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert Fogan, Esquire 2170 S.E. 17th Street Fort Lauderdale, Florida 33316 Myrtle Aase, Executive Director Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what penalty should be imposed?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent has been licensed to practice cosmetology in the State of Florida since August 13, 1979. He currently holds license number CL 0110182, which has an expiration date of June 30, 1992. Respondent is now, and has been at all times material hereto, the owner and operator of Best Cuts, Inc. (Best Cuts), a licensed cosmetology salon located at 5331 West Atlantic Boulevard in Margate, Florida. In late October, 1990 or early November, 1990, Luis Villate applied and interviewed for a hair stylist position at Best Cuts. During the interview, Respondent asked if Villate was licensed to practice cosmetology in the State of Florida. In response to this inquiry, Villate showed Respondent a completed State of Florida application for licensure by examination. The application contained a certification, dated January 6, 1990, and signed by the Educational Supervisor of the cosmetology school Villate had attended, that Villate met the educational and training requirements for eligibility to sit for the cosmetology licensure examination. Following the interview, Respondent telephoned the Department's offices in Tallahassee to find out if there was any legal impediment to his hiring Villate to work as a hair stylist at Best Cuts. Respondent explained to the Department representative with whom he spoke that Villate had "all his hours" of schooling and training and that he had applied for a cosmetology license. The representative told Respondent that, if such were the circumstances, it would be permissible for Respondent to employ Villate at his salon. 1/ Respondent shortly thereafter hired Villate to work at Best Cuts. The representations made to him by the Department representative did not play a role in his decision to hire Villate. Because he desperately needed a competent hair stylist to work at the salon, he would have hired Villate even if he had been told that Villate's unlicensed status rendered him ineligible for lawful employment. Villate remained an employee of Best Cuts for approximately two months, until December 4, 1991. During the period of his employment, Villate cut, washed and blow dried customers' hair. At no time during this period was he licensed to practice cosmetology in the State of Florida. The termination of Villate's employment with Best Cuts was precipitated by an inspection of the salon made by Louis Morganstern, an inspector with the Department, on December 3 and 4, 1990. During the first day of his inspection, Morganstern observed Villate cutting the hair of a customer. Upon his return to the office, Morganstern ran a computer check on Villate, which revealed that Villate had taken and failed the licensure examination and therefore was still unlicensed. The following day, at Morganstern's request, Villate signed a document agreeing to "cease and desist" from the practice of cosmetology in the State of Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Cosmetology enter a final order (1) finding that Respondent committed the violation of law alleged in the Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $100 for having committed this violation. RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of August, 1991. STUART M. LERNER 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 19th day of August, 1991.
Findings Of Fact Petitioner, Department of Professional Regulation, Board of Cosmetology (Board), is charged with the responsibility of regulating the practice of cosmetology. Among its responsibilities are the routine inspections of cosmetology salons to insure that all Board requirements are being met. On January 13, 1988 a Board inspector inspected the premises of From Hair on Etc., a licensed cosmetology salon in Clearwater, Florida. During the course of the inspection, the inspector observed a work station set up for respondent, Kristie J. Wheatley. The inspector also reviewed the salon's appointment book and noted manicure appointments for "Kristie" beginning around October 13, 1987 and continuing until January 19, 1988. However, the inspector did not find a license for respondent, and a subsequent search of Board records revealed that respondent was not registered with the Board. The inspector later talked with respondent by telephone. Respondent acknowledged that she had been employed as a manicurist at the salon since October 1987 and was not registered with the Board. She informed the inspector that she was unaware that the Board had begun enforcing a new law that required manicurists to be registered. According to owners of the salon, respondent performed manicure services in the salon for a three month period from October 1987 until January 1988. She was compensated for these services. In response to their inquiry as to her registration status, Wheatley told them she had filed an application for registration. Later on, she advised them the registration was at her home. When the owners learned from the inspector that respondent was not registered with the Board, her services were terminated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the amended administrative complaint, that she be assessed a $150 fine, and that she not be permitted to register with the Board until such fine is paid. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of February, 1989. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Tallahassee, Florida 32399-0750 Kristie J. Wheatley 14194 Darts Drive Fenton, MI 48430 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Tallahassee, Florida 32399-0750 Myrtle Aase, Executive Director Department of Professional Regulation Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue 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.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of cosmetology. 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. At all times material hereto, Cathy's Place, Cathy Runkle, and Cathy's Hair Design have been unlicensed as cosmetology salons. 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. 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. 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. 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. 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. 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. 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. 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. Neither the Schwarz home nor the Rendon home is a licensed cosmetology salon. 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. 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. 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.
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
The Issue The issue is whether Respondent discriminated against Petitioner based on her national origin.
Findings Of Fact Respondent is a subsidiary of Ratner Companies. Respondent operates a chain of salons, including the Cobblestone Hair Cuttery Salon (Cobblestone) in St. Augustine, Florida, and the Town Center Hair Cuttery Salon (Town Center) in Palm Coast, Florida. Petitioner was born in Buenos Aires, Argentina, of Hispanic origin. She speaks Spanish as her first language and English as her second language. Petitioner has extensive experience as a hairdresser. She was licensed in Maryland in 1975 and in Florida in 1989. Petitioner has owned her own salons in Maryland and Florida. In the fall of 2007, Francesca Souza, Respondent's salon leader at Town Center interviewed Petitioner for a position as a hair stylist. Ms. Souza was impressed with Petitioner's experience as a stylist. Ms. Souza also believed that Petitioner's ability to speak Spanish would help improve service to the area's large population of Spanish-speaking clients. Because Ms. Souza did not have a position available at the time, she referred Petitioner to Cobblestone. The salon leader at Cobblestone hired Petitioner as a hair stylist. At Cobblestone, Petitioner had problems following Respondent's Fair and Equal Treatment Policies. The problems were based on allegations that Petitioner was taking customers out-of-turn, doing services that customers did not want, and being confrontational in the shop in front of clients. After Respondent was coached and counseled about not making clients or associates uncomfortable, Petitioner's ability to get along with other stylists improved. There were never any issues at Cobblestone with Petitioner’s speaking Spanish. In April or May of 2008, Petitioner transferred to Town Center because it was closer to her home. For approximately two months, Petitioner experienced no problems working at Town Center. Town Center was a multi-cultural salon. Ms. Souza spoke several languages in addition to English, including Spanish and Portuguese. Other bi-lingual stylists included the following: (a) Natalie, who was from Thailand and spoke Chinese and Cambodian; (b) Andrea, who was from Jamaica and spoke French; and (c) Maria, who was from Puerto Rico and spoke Spanish. Other stylists, who spoke only English, included the following: Courtney; Jessica; Monica; Jasmine; Stacy; Christine; Melissa; Eugenia; and Michael Ann. From the beginning, Petitioner believed that these stylists formed a clique that attempted to exclude other stylists. Respondent did not have a policy prohibiting stylists from speaking a foreign language to each other or to customers in the salon. Bi-lingual stylists usually spoke to their customers according to their national origin when necessary to make the customers feel comfortable. Initially, Petitioner sometimes spoke Spanish to Francesca and Maria. Some of the stylists in the "clique" complained that Francesca and Petitioner should speak English to each other in the salon because they were in the United States. Francesca then informed Petitioner that they should speak English to each other. Francesca explained to Petitioner that some of the stylists might feel as if Francesca favored Petitioner and that speaking English would make everyone feel more included. In June 2008, Petitioner was working at Town Center when two sisters of Hispanic origin came in for service. One sister was treating the other for a special occasion. Diane was due to take the next walk-in client. Therefore, Diane asked the sister being served to sit in her chair. After the sisters told Diane what service they wanted, Stacy made a comment in English to Diane that she was not competent to do the service. Apparently, one or both of the sisters understood Stacy's comment. The sister receiving the service became upset, stating, in Spanish, that she did not want Diane to do her hair. At that point, Petitioner intervened. Speaking in Spanish to the sisters, Petitioner assured them that Diane was competent to perform the service and that Stacy had made a childish comment. The incident grew worse when Petitioner overhead Courtney complaining to the "clique" about Petitioner’s speaking Spanish to Diane's customers. Petitioner also understood that members of the "clique" were being critical of her and the sisters. As the "clique" talked among themselves, the sisters became even more upset. Apparently the sisters and Petitioner believed that the other stylists were making fun of the sisters and Spanish-speaking people in general. Eventually, Petitioner called Ms. Souza, who was on vacation. Courtney also spoke to Ms. Souza. Courtney yelled that Petitioner should be fired, that she was a troublemaker, that she should not be speaking Spanish, and that she had caused the whole problem. Ms. Souza talked to the sisters on the phone. She made arrangements to compensate them for the incident. Ms. Souza later talked to Petitioner, asking whether she had caused the problem. Petitioner responded that the "clique" was jealous of her and were discriminating against her because she spoke Spanish. After the incident with the sisters, personality conflicts developed between the "clique" and Petitioner. They could not get along and did not trust each other. When Petitioner began working at Town Center, the salon had an honor system in place to determine which stylist would get the next walk-in client. Petitioner took advantage of the honor system by taking clients out-of-turn. Ms. Souza then instituted a walk-in list that the stylists signed when they came to work. As they took clients, they were supposed to scratch their name off the top of the list and write it at the bottom. Petitioner also took advantage of the walk-in list by not scratching her name off the top of the list after taking a client. The other stylists would then scratch off Petitioner's name or white it out and write it at the bottom. When this happened, Petitioner and the other stylists would bicker with each other. Petitioner never admitted she had done anything wrong and always complained that the other stylists were picking on her. The greater weight of the evidence indicates that the "clique" resented Petitioner’s speaking Spanish to her clients when it was not necessary because they assumed that Petitioner was talking about them. There is no persuasive evidence that the "clique" resented Petitioner’s speaking Spanish because she was from Argentina of Hispanic origin. To the contrary, a member of the "clique" occasionally requested Petitioner's assistance in communicating with a Spanish-speaking client. The evidence also shows that Petitioner was very aggressive in soliciting clients and selling retail products. Her list of clients that would request her services grew quickly. She often had the highest sales per week and/or month of retail products. The members of the "clique" may have been jealous of Petitioner's rapid success but they also resented the methods she used to increase her commissions as set forth in Ms. Souza's testimony and the documentation memorializing her counseling and coaching conversations with Petitioner. On August 6, 2008, Ms. Souza had a conversation with Petitioner outside the salon. During the conversation, Ms. Souza informed Petitioner that she was creating an environment in the salon that was uncomfortable to stylists and others in the following ways: (a) arguing with Jasmine about a client; (b) bickering on the floor; and (c) intervening with Stacy's recommendations to a client by making derogatory remarks about the quality of Stacy's work. At the conclusion of this conversation, Petitioner agreed to stop that kind of behavior. On August 8, 2008, Ms. Souza had a conversation with Petitioner regarding the two technical complaints. First, a client was unhappy with an "updo" done by Petitioner. Additionally, Petitioner tried to charge the client $40 for the service after Monica had quoted the client a $25 price. Ms. Souza had to redo the hair style and charged the client $25. Second, a client came in with a very uneven hair cut. Petitioner refused to cut the client's hair the way she wanted it because it would, in Petitioner's opinion, look bad. On September 6, 2009, Ms. Souza wrote a letter to Stephanie Melstein, Respondent's district leader. The letter reviews the problems Ms. Souza was having with Petitioner as follows: (a) taking clients out-of-turn, then getting defensive when confronted by another stylist; (b) leaving the salon without cleaning up at closing; (c) not crossing her name off the walk-in list so that she remains at the top of the list; (d) talking to clients sitting in another stylist's chair, frequently saying things contrary to what the stylist and client have discussed; (e) walking to the front of the salon and striking up a conversation with a walk-in client, then putting the client's name in the computer as a "request" for herself, even though the client did not care who performed the service; (f) making derogatory comments about people's sexual orientation and/or religion; (g) walking away and pretending to be busy when presented with an ethnic client that she does not want to serve; and (h) claiming that the whole salon is out to get her because of jealousy. In the September 6, 2008, letter, Ms. Souza requested that Ms. Melstein let her know how much information is needed to terminate a person without repercussion to Ratner Companies. Ms. Souza did not want to be seen as a weak salon leader, but she also did not want to have the salon involved in a lawsuit by a disgruntled employee. On September 12, 2008, Ms. Souza gave Petitioner a verbal warning regarding the following: (a) not taking clients in order according to the walk-in policy by skipping over other names; (b) interfering with other stylists; and (c) leaving early without management approval. Ms. Souza advised Petitioner that her actions were creating an uncomfortable environment for clients and co-workers. Ms. Souza also stated that any future violations in these same areas will result in termination. Petitioner hand delivered a letter dated September 16, 2008, to Ms. Souza and Ms. Melstein at a monthly salon meeting. According to the letter, Petitioner had been picked on by the "clique" since her first week at work. In the September 16, 2008, letter, Petitioner's complaints included, but were not limited to, the following: (a) someone was scratching out Natalie's and Petitioner's names on the walk-in list when they had a request customer as if they had taken a walk-in client; (b) someone was telling Natalie's and Petitioner's request customers that they were scheduled to work on days they were off; (c) Ms. Souza warned Petitioner about Lynn and Melissa and advised Petitioner not to speak Spanish because the stylists would think Ms. Souza was favoring Petitioner; (d) Ms. Souza talked about some of the stylists behind their backs; (e) Michael Ann left work early one day without permission; (f) Monica was 45 minutes late one day, leaving a client waiting for her; (g) Lynn was 35 minutes late with no repercussions; (h) Michael Ann left the salon for an hour without clocking out, leaving a client waiting that Lynn had to service; (i) Lynn leaves the salon for coffee without clocking out; (j) the smokers take more breaks than non-smokers; (k) the "clique" discriminated against the two Spanish sisters and Petitioner; (l) Lynn falsely accused Petitioner of being a thief for hiding Lynn's lunch; (m) the "clique" members go to lunch then expect someone to check in the clients and have them wait until the "clique" members return; (n) Ms. Souza feels that Petitioner has a chip on her shoulder; (o) Petitioner cannot speak Spanish with her Spanish-speaking clients because the "clique" finds it offensive; (p) Monica refused to give Petitioner her paycheck, placing it on a high shelf; (q) Francesca falsely stated that Petitioner had four complaints on redo haircuts; (r) Lynn and the "clique" mistreated a person in training at the salon; (s) someone put a bag of bleach on Petitioner's lunch; (t) the "clique" is jealous that Petitioner has so many requests in such a short time; (u) someone erased some of Petitioner's chemical service appointments and put them under the name of other hairstylists; (v) someone scratched over Petitioner's initials on the chore list and placed another name there as if Petitioner did not do her chore, then told Ms. Souza that Petitioner left early without doing her chore; (w) Michael Ann wanted to smoke so she gave her walk-in to Jessica even though Petitioner was next in line; (x) Michael Ann leaves work early when Monica is on duty as assistant salon leader with no repercussion; (y) Stacy refused to cut the hair of a child on the walk-in list, asking Petitioner to cut the child's hair instead; and (z) the "clique" members get together to gossip about Petitioner getting a written warning report. After receiving the September 16, 2008, letter from Petitioner, Ms. Melstein went to the Town Center to investigate Petitioner's allegations. Ms. Melstein spoke to the Town Center staff, including Petitioner and Ms. Souza. Ms. Melstein reminded Petitioner and Ms. Souza that Respondent did not have a policy prohibiting speaking a foreign language in a salon. Ms. Melstein also reminded them that Respondent did have a policy prohibiting any conduct that created an uncomfortable environment for clients and staff. Finally, Ms. Melstein made it clear that if a stylist needed to speak a foreign language to make a client feel comfortable, the stylists certainly could do so. During her investigation, Ms. Melstein had conversation with all of the staff regarding the allegations in Petitioner's September 16, 2008, letter. Ms. Melstein concluded that there were personality conflicts among the stylists but that no one was being discriminated against. On or about October 1, 2008, Ms. Souza had a conversation with Petitioner regarding her failure to attend a mandatory salon meeting. Ms. Souza also instructed Petitioner to stop soliciting clients for a mortgage business by getting and/or giving out cell phone numbers and e-mail addresses and by giving mortgage company business cards to the clients. On October 18, 2008, Ms. Souza counseled Petitioner about taking clients out of turn. She also advised Petitioner about the importance of placing the names of clients in the computer. On or about November 3, 2008, Petitioner improperly charged a client for a foil service. At that time, the stylists were supposed to charge $3 per foil up to six foils and $45 for a partial foil of seven to twelve foils. Petitioner charged the client $3 per foil for eight foils, thereby undercharging the client $21. This is a terminable offense under Respondent's Fair and Equal Treatment Policy. The greater weight of the evidence indicates that Petitioner did not have permission to charge the client $3 per foil for eight foils. On November 5, 2008, Ms. Sousa terminated Petitioner's employment at Town Center. According to the conference report form, Petitioner was terminated for the following reasons: (a) knowingly failing to charge clients properly by under- ringing sales and quoting incorrect prices; (b) creating an uncomfortable environment for clients and staff; (c) mistreating other associates by selling products to clients while other stylists are servicing those clients; (d) discrediting stylists with derogatory comments statement to clients; and (e) trying to coax clients into her chair while the clients were waiting for another stylist. The transaction detail report confirms that on November 3, 2008, Petitioner improperly charged for a foil service. Additionally, the transaction detail report reflects twelve instances of improper charging (over-ringing and/or under-ringing) by Petitioner prior to November 3, 2008. After being terminated, Petitioner complained to Naté Venkatesen, the human resources director for Ratner Companies. Petitioner stated that other associates in the salon also were improperly charging clients. As a result, Respondent performed an investigation and subsequently initiated coaching and counseling for all associates at the salon. There is no evidence that the stylists involved in the coaching had the same type of disciplinary history or problems following policies as Petitioner. In a letter dated December 5, 2008, Ms. Venkatesan agreed to reinstate Petitioner to her original position at full pay. Ms. Venkatesan also told Petitioner she would receive full back-pay from November 5, 2008, until December 12, 2008. According to the letter, Petitioner would be entitled to all benefits, including the company-paid trip to Cancun in May 2009. Finally, the letter stated that Petitioner needed to respond to the letter by December 12, 2008, or Respondent would assume she was not interested in returning to work. Petitioner declined to accept Petitioner's offer of reinstatement. She did not want to start all over in building her clientele and sales at another salon. Respondent never told Petitioner she could not return to Town Center. However, Ms. Venkatesan told Petitioner she did not think it would be a good idea for Petitioner to return to Town Center. After she was terminated, Petitioner looked for work for about three and a half weeks before finding a job at the Paradise Day Spa. Petitioner worked at the Paradise Day Spa for eight months until September 2009, when that company went out of business. A short time later, Petitioner found a job in a barber shop where she continued to work at the time of the hearing. When Petitioner worked for Respondent, she accrued a week's paid vacation after working for one year. She earned an average of $400 per week in commissions from services and an additional $300 per week in tips and retail sales. Up through the date of termination, Petitioner earned $18,763.07 gross pay and $15,312 net pay from Respondent. Petitioner earned $959.64 in 2008, working for the Paradise Day Spa. She earned approximately $129 per week at the Paradise Day Spa. Petitioner earns approximately $200 per week at the barber shop. Her earnings there are based on a 50 percent commission for each service she performs.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of January, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 12th day of January, 2010. COPIES FURNISHED: David W. Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Bradley J. Hansen, Esquire Ratner Companies, LC 1577 Spring Hill Road, Suite 500 Vienna, Virginia 22182 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
