The Issue The central issue in this cause is whether or not Respondent is guilty of violating Section 477.029(1)(b), Florida Statutes which prohibits the operation of a cosmetology salon without a current license.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Before & After, Inc. d/b/a Design of Miami, is not licensed as a cosmetology salon. Respondent does business at 8200 Biscayne Boulevard, Miami, Florida. Bernard R. Gaeta is the secretary/treasurer of the Respondent corporation and was present at the business location on or about January 9, 1986. On or about January 9, 1986, Providence Padrick went to the business location (8200 Biscayne Boulevard, Miami, Florida) in response to an advertisement for cosmetology services. The purpose of the visit was to inspect the premises regarding the services claimed by the ad. An individual known as Jerry Schrank shared space with Respondent and had been responsible for the ad in question. When Ms. Padrick made the inspection she was attended by Mr. Gaeta who showed her the area used by Mr. Schrank. Additionally, Mr. Gaeta furnished Ms. Padrick with a brochure which outlined the services offered by Respondent. During her inspection of the Respondent's premises Ms. Padrick observed three or four shampoo bowls of the type normally used in cosmetology salons. As a result of her inspection of Respondent's business premises, Ms. Padrick interviewed Carmen Cannizzo to determine what services were being performed by Respondent's employees. Ms. Cannizzo is a licensed cosmetologist employed on a salaried basis by the Respondent. According to Ms. Cannizzo, Respondent sells hairpieces or wigs which are fitted and then attached to the customers' heads. Respondent uses two methods of wig or hairpiece attachment: weaving and taping. The weaving method requires the weaving of an anchor thread through the customer's natural hair which then holds the hairpiece in place once it is similarly secured to the woven thread. Regardless of the method of attachment, the customer's hair must be styled to blend in with the hairpiece. Customer preference and the amount of natural hair available determine which attachment method is used. While it is not part of the fee charged by Respondent, Ms. Cannizzo will also trim a customer's hair or shampoo it upon request. Ms. Cannizzo has been directed not to perform these services but does so to augment the tips she receives. Prior to the inspection of Respondent's business premises Ms. Padrick identified herself and her occupation to Mr. Gaeta. Ms. Padrick inspected the public areas of Respondent's business and, by invitation, an office area used by Mr. Gaeta.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Cosmetology enter a Final Order finding Respondent in violation of Section 477.029(1)(b), Florida Statutes and imposing an administrative fine in the amount of $500.00 DONE and RECOMMENDED this 11th day of March, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3689 Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted in finding of fact paragraph 1. Paragraph 2 is rejected. Whether Respondent has been licensed as a salon in the past is unclear. That Respondent operates as a cosmetology salon is a question of law addressed in the conclusions. Paragraph 3 is accepted. It should be noted, however, that all services described in the brochure may not be offered at the Respondent's business. Only those services found to be performed by Respondent are included in the findings of fact. Paragraph 4 is accepted. See paragraph 3 above. Paragraph 5 is accepted. Paragraph 6 is accepted. Respondent does not dispute that it shampoos hairpieces for its customers. Paragraph 7 is accepted. Paragraphs 8, 9, and 10 are accepted. Rulings on Respondent's proposed findings of fact: None submitted COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0760 Frank E. Freeman 2930 North East Second Court Miami, Florida 33137 Myrtle Aase, Executive Director Department of Professional Regulation Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32399-0760 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750
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.
The Issue The issue for disposition is whether William Engelleiter practiced cosmetology without a license, and if so, what action is appropriate.
Findings Of Fact Nita Spagnole is an investigator for the Department of Professional Regulation (DPR) in the Orlando, Florida office. On March 22, 1988, she visited the Apollo Hair Designs Salon in Melbourne, Florida, to gather affidavits for another case. William Engelleiter was in the salon and was pointed out to her as a cosmetologist. He was in the area, talking to a customer, watching TV and visiting with the other workers. She did not observe him working on hair or otherwise practicing cosmeto1ogy. Ms. Spagnole later pulled his name on the agency computer and learned that he did not have a license. William Engelleiter attended cosmetology school but did not pass the board examination. He is diabetic and frequently ill. He met the Blough's, the owners of Apollo Hair Design at a flea market. They were giving away free samples and said they needed a receptionist. Engelleiter was hired to work as a receptionist until he was able to pass the examination. He started work at Apollo on January 25, 1988, and was still employed as a receptionist in March, 1988. He left shortly later due to illness. From time to time at the salon, William Engelleiter did his mother's hair and worked on the owner's daughter and other cosmetologists, but he claims that he never received compensation for those services. His mother confirmed this. David Simon, a friend of Engelleiter's, went to the salon to buy a hairpiece. He wanted Engelleiter to get the commission but was told that he could not, because he was not a cosmetologist.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the administrative complaint dated May 20, 1988 be dismissed. DONE and RECOMMENDED this 9th day of December, 1988, in Tallahassee, Florida. MARY CLARK 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 9th day of December, 1988. COPIES FURNISHED: Ronald L. Jones, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William R. Engelleiter 1964 McKinley Avenue Post Office Box 24A Melbourne Beach, Florida 32951 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant hereto Famiglia, Inc., of which David F. Petrano is president, doing business as Family Hair Care Center, held certificate of registration #BS 7401 to operate a barbershop. (Exhibit 1). On August 3, 1987, an inspector from DPR visited the Family Hair Care Center for a routine inspection and observed Verious Benjamin Smith working as a barber. Smith held no valid barber's license in Florida. (Exhibit 3). Respondent did not dispute the fact that Smith was operating as a barber without a current license, but contended that August 3, 1987 was the first day the shop had opened as Ebony Hair Style. A lot of promotional activities, including free services, was taking place, there was a lot of turmoil; reliance had been placed on Smith's assertion that he was licensed, and this was not verified before he was hired.
Findings Of Fact Respondent is a licensed cosmetologist in the state of Florida, holding license number CL-0167327. She makes her home at 882 Anita Avenue, Pensacola, Florida, along with her husband and children. Respondent works at a relative's beauty salon in another location. Respondent has been interested in hair weaving or braiding for several years. Hair weaving or braiding is done by hand, by intertwining strands of hair. No tools are used other than a needlelike instrument used for lifting up strands of hair and sewing in synthetic or human hair. An individual's hair is not treated with any type of chemical, nor is it cut or shampooed. Such manipulation of the hair is somewhat difficult and requires practice in order to weave hair well. On or about October 20, 1987, Lutrel M. Raboteaux, an investigator for the Board of Cosmetology, contacted Respondent regarding a complaint they had received about her from Denise Bryant. 1/ Mr. Raboteaux's investigation centered on whether Respondent was maintaining a cosmetology salon in her home. The only items Mr. Raboteaux found at Ms. Freeman's home were a broken chair type hair dryer and a couple of well used bottles of hair supplies for black hair. Ms. Freeman had been given the broken hair dryer. She had never used the dryer since it was not in working order. The bottles were for personal use and were only used by Ms. Freeman and her family. About two years ago, Respondent met Marie Smith. They became good friends. Through their friendship, Ms. Smith discovered that Ms. Freeman knew how to do hair weaving. Ms. Smith was interested in having her hair woven, and asked Respondent to weave her hair. Ms. Smith, in return for Respondent's weaving her hair, tutored one of Respondent's children. The hair weaving and tutoring took place at Ms. Freeman's home and consisted mostly of tightening the weave as Ms. Smith's hair grew. Ms. Smith viewed the hair weaving arrangement as more of a quid pro quo for tutoring Respondent's child. Respondent viewed the hair weaving arrangement on more of a friendship basis as a favor for a favor. Other than this one arrangement, Ms. Freeman would practice hair weaving on her family and some of her friends. They would ask her to weave their hair. As was the case with Ms. Smith, they would ask her to weave their hair and she would perform that task for them. Again as with Ms. Smith, Respondent would weave the hair of her friends at her home. She did not charge for her services. Any hair weaving that took place in Ms. Freeman's home was for free. She never received any money from the individuals she practiced on at her home. The only time she may have received anything was the tutoring swap described earlier involving Ms. Smith. Likewise, Ms. Freeman supplied no chemicals or other supplies necessary for her friends to get their hair woven. Her friends supplied those items at their own expense. Ms. Freeman's sole reason for weaving her friends' hair was to practice the art of hair weaving which she wished to specialize in. It is clear that Ms. Freeman never intended to operate a hair weaving business in her home and did not consider her home in anyway to be a beauty salon. Her home is not open to the public. Her home did not contain any equipment or chemicals used in a beauty salon. No evidence was presented that she keeps regular hours or appointments at her home. On the contrary, she in fact works at another beauty salon in Pensacola. Additionally, Ms. Freeman asked one of her teachers at a cosmetology school in Pensacola if it was all right for her to practice hair weaving at her home for free. She was informed that it was not against Florida Law and was otherwise completely unaware that there may be a problem with not having her home licensed as a salon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the complaint against Ms. Freeman be dismissed. DONE and ORDERED this 12th day of April, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 12th day of April, 1988.
The Issue The issue in this case is whether the Petitioner should be awarded additional points for the practical portion of the September 14, 1998, Barber Examination.
Findings Of Fact On September 14, 1998, Tana Shiver took the practical portion of the examination for licensure as a barber. A passing score for the practical portion of the examination is a 75. Ms. Shiver scored a 69. A passing score on the written portion of the examination is a 75. Ms. Shiver scored a 90. Essentially, the practical portion of the barber examination consists of a haircutting session. Approximately 10 candidates for licensure give haircuts under the observation of two examiners. The practical examination is scored on a scale of 100 points. Each grader completes a score sheet and the scores are averaged to provide a candidate’s final grade. Elements of the practical examination include haircut (45 points), technique (10 points), shampoo (10 points), sanitation (25 points), and chemical services (10 points). Ms. Shiver received the maximum number of points for technique, shampoo, and chemical services. Ms. Shiver received an average score of 15.50 points out of a possible total of 45 on the haircut. Ms. Shiver received a score of 23.50 points out of a possible total of 25 on sanitation. Ms. Shiver noted that there is substantial discrepancy between the examiners on numerous test items. There is no evidence that such scoring discrepancy is indicative of error by the examiners. Substantial scoring discrepancies can result from a "borderline" haircut. In this circumstance, individual opinions of examiners can differ as to the level of performance, which, though of marginal quality, is still acceptable. At the hearing, the examiners testified as to the training provided to examiners prior to testing sessions. With ten candidates simultaneously performing haircuts and only two examiners in the room, it is not possible for both examiners to see each candidate perform each procedure. Examiner no. 307 opined that if he did not observe a procedure being correctly performed, he assumed that it was not, and would award no credit. Examiner no. 209 testified that examiners are instructed to give candidates credit for items not observed even through they might have been performed incorrectly. Examiner no. 209’s testimony as to this issue is credited. Score sheet items B-1 through B-4 relate to the sanitation portion of the examination. Item B-1 states "[t]he candidate washed hands before beginning the haircut." Both examiners gave credit for this item. Item B-2 states "[t]he candidate used the proper linen setup for the haircut." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the candidate "did not open collar." At the hearing, Examiner no. 307 testified that he did not give Ms. Shiver credit on item B-2 because he did not see her open the model’s collar. According to the training provided to the examiners, Ms. Shiver should have received credit from both examiners on item B-2. Item B-3 states "[d]uring the haircut, the candidate replaced tools in the sanitizer after each use." Both examiners gave credit for this item. Item B-4 states "[t]he candidate properly stored clean and dirty linen during the haircut." Both examiners gave credit for this item. Score sheet items B-5 through B-7 relate to the technique portion of the exam. Item B-5 states "[t]he candidate held and used all tools in a safe manner during the haircut." Both examiners gave credit for this item. Item B-6 states "[t]he model’s skin was not cut or pinched by clippers or other tools during the haircut." Both examiners gave credit for this item. Item B-7 states "[t]he candidate used the freehand technique when doing the haircut." Both examiners gave credit for this item. Items B-8 through B-16 are related to the haircut portion of the examination. Item B-8 states "[t]op is even and without holes, gaps, or steps." Neither of the examiners gave credit for this item. Examiner no. 209 noted "holes" and Examiner 307 noted "not even." Item B-9 states "[t]op (horseshoe) blends with the sides and back." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the hair "did not blend." There is no evidence that either examiner erred in scoring this item. Item B-10 states "[f]ront outline is even." Neither of the examiners gave credit for this item. Examiner no. 209 noted "uneven" and Examiner 307 noted "not even." Item B-11 states "[h]aircut is proportional and sides are equal in length." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the hair was "not proportional (and) not equal." There is no evidence that either examiner erred in scoring this item. Item B-12 states "[s]ides and back are without holes, gaps, or steps." Neither one of the examiners gave credit for this item. Examiner no. 209 noted "holes" and Examiner 307 noted "steps." Item B-13 states "[s]ides blend with back." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "sides too long." There is no evidence that either examiner erred in scoring this item. Item B-14 states "[s]ideburns and outlines are even." Examiner no. 209 gave no credit for this item, noting "around R. ear." Examiner no. 307 gave credit for this item. There is no evidence that either examiner erred in scoring this item. Item B-15 states "[s]ideburns, outline and neckline are clean shaven." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "not cleanly shaven." There is no evidence that either examiner erred in scoring this item. Item B-16 states "[n]eckline is properly tapered." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "not tapered." There is no evidence that either examiner erred in scoring this item. At the hearing, Ms. Shiver offered the testimony of the man whose hair she cut during the practical portion of the examination, and whose hair she has cut for approximately three years. He testified that neither examiner spent much time looking at the haircut after it was completed, and that only Examiner no. 307 actually touched his hair during the review of Ms. Shiver’s performance. He also testified that that his sideburns were uneven but that he was satisfied with the haircut.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Barber's Board, enter a final order: Allowing Tana Shiver to retake the practical portion of the barber examination at no cost, and Allowing Tana Shiver's passing score on the written portion to remain valid without reexamination. DONE AND ENTERED this 29th day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of April, 1999. COPIES FURNISHED: Tana Shiver 2049 Old Gunn Highway Oddessa, Florida 33556 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Woodyard, General Counsel Department of Business and 1940 North Monroe Street Tallahassee, Florida 32399-1007 Barber's Board Department of Business and 1940 North Monroe Street Tallahassee, Florida 32399-1007 All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to issue the Final Order in this case.
