The Issue Whether Respondent committed the violation alleged in the Administrative Complaint dated January 29, 2004, and if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following facts were established: Petitioner is the state agency charged with regulating the operation of establishments providing cosmetology services, including hair care and styling, to the public. Petitioner's regulatory authority derives from Chapter 477, Florida Statutes. Respondent has at all times material to this case been subject to Petitioner's jurisdiction by virtue of its license to operate Mayelin Unisex Beauty Salon (Respondent or Mayelin), a hair salon located in North Miami Beach, Florida. At all times material to this case, Respondent was under a legal duty to refrain from permitting unlicensed individuals to perform cosmetology services, including hair care, upon members of the public. On or about April 26, 2003, Abdel Cedeno (Cedeno), a duly-qualified inspector employed by Petitioner and whose job includes monitoring compliance with Chapter 477, Florida Statutes, went to Mayelin's during its regular business hours for the purpose of conducting a routine inspection. On that occasion, Cedeno observed one Yomaira Payero (Payero) performing cosmetology services on a customer. More specifically, Payero was observed styling or arranging the customer's hair, utilizing a blow-dryer and other cosmetology implements. Payero was not licensed to perform such services within Florida. At all times material to this case, Payero was a paid employee of Respondent. Payero's activities, which Respondent authorized and facilitated, constituted a violation by Respondent of Section 477.0265(1)(d), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued assessing Respondent an administrative penalty in the amount of $500. DONE AND ENTERED this 8th day of April, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 8th day of April, 2005. COPIES FURNISHED: Juana Blanco Mayelin Castillo Mayelin Unisex Beauty Salon 16551 Northeast 8th Avenue North Miami Beach, Florida 33162 Renee Alsobrook, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1015 Julie Malone, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for consideration in this case is whether Petitioner should be given credit for all or any of her answers to the questions challenged from the November 20, 1996, Cosmetology Written Clinical Examination.
Findings Of Fact At all times pertinent to the issues herein, the Board of Cosmetology was the state agency responsible for the examination and licensing of cosmetologists and the regulation of the profession of cosmetology in this state. Petitioner is a graduate of cosmetology school who took the written clinical portion of the cosmetology licensing examination administered on November 20, 1996. By Examination Grade Report issued in December 1996, Ms. Lang was advised she had earned a score of 69 on the examination. Since the passing score for the cosmetology exam is 75, Petitioner failed the examination. Thereafter, Petitioner requested a formal hearing at which she contested the score that she received on questions 15, 20, 24, 28, 30, 34, 35, 39, 56, 66, 69, 71, 72, 91, and 95. Question 15 deals with the appropriate time for tweezing the eyebrows of a client who comes in for an arch and brow tint. Though the Petitioner answered with “B,” (after softener), the correct answer to this question is “A,” (after tinting). Authority for this answer is found on page 413 of Regents/Prentis Hall Textbook of Cosmetology, Third Edition. This authority indicates that tweezing takes place after application of softener in a regular eyebrow arch. The question in issue relates to tinting. Since the client may be allergic to tint, the operator should tint before tweezing and opening the pores thereby. The Petitioner’s authority treats arching (tweezing) and tinting separately. Respondent’s authority suggests arching a week before or a week after the tint. In any case, it is clear that the procedures should not be done at the same sitting. The question posed on the examination implies they are. Petitioner’s answer to the question asked, however, is contradictory to the premise that the tinting should be done before the arching, and, therefore, the correct answer is “A.” Question 20 relates to the use of a proper color to lighten natural blonde hair which has darkened over the years. The correct answer to this question is “B,” (at the end of the treatment). However, Petitioner’s answer was “D,” (immediately after applying color to the scalp area). The authority for the Board’s answer is found in Milady’s Van Dean Manual at procedures 6 through 8, found on page 198. However, a careful review of that authority reflects it to read: Process the tint according to the strand test results. Apply the tint mixture to the hair near the scalp, being careful to avoid contact with the scalp. Apply the tint to the hair ends. A reasonable interpretation of this listing could result in the conclusion being drawn that it is appropriate for color to be applied to ends immediately after it is applied “to the hair near the scalp.” Under the circumstances here, the Board’s authority can reasonably be interpreted to support the Petitioner’s answer. Question 24 seeks the proper volume of peroxide to be used in the color formula in the circumstances cited. The Board’s correct answer to this question is “A” (10), whereas Petitioner listed “B” (20). The Board cites as its authority for its position that portion of the Regents/Prentice Hall Textbook found at the bottom of page 278 which reads: If you are going from a lighter level to a darker one, use a reduced volume, such as 10. In this system, it is assumed that for every 10 volume of developer used, you achieve one level of lightening action. The color you select will determine the amount of deposit achieved and the color of that deposit. Here, the question deals with depositing color to hair to restore a darker shade. The Board’s expert, Ms. Nealy, indicates that 10 volume deposits color to hair. Anything more gives less color. Petitioner claims 20 volume, which is most commonly used unless there is a serious problem, lifts the hair and lasts longer. However, her citation of authority furnished subsequent to the hearing appears to relate to a product-specific situation. The entire citation is not included in the materials furnished, and it is impossible to effectively evaluate Petitioner’s thesis and authority. Based on the materials furnished, the Board’s answer is deemed correct. Question 28 asks for identification of the appropriate solution to be applied to the end of hair to achieve even color results. Petitioner indicated the answer as “C” (pre-softener), whereas the Department’s correct answer was “B” (penetrating conditioner). Both of the Board’s references refer to the use of a filler as appropriate. A filler is defined as a product used to deposit color on damaged or porous hair so that the overall color is even, which is what is desired here. A conditioner filler is used to recondition damaged hair before salon service and may be applied either in a separate procedure or immediately prior to color application. Petitioner also submitted authority for her answer. However, the authority to which she refers relates to the use of a pre-softener for gray hair which is not a part of the question posed in the examination. Further, pre-softeners deal with hair curl, not color, which is at issue here. Her answer is incorrect. Question 30 tests the examinee’s knowledge of the proper steps to match a client’s hair which had been lightened but has grown back darker. The Petitioner indicated that “B” (divide the hair into sections for control), is the appropriate answer. The Board indicates that “C” (equalize the porosity of the hair), is correct. In the Board’s expert’s opinion, dividing the hair, as suggested by Petitioner, deals more with cutting, rather than coloring. Coloring should be equal throughout the hair, not applied to divided segments. Board references are found in Milady’s Textbook at page 302, and in the Prentice Hall textbook at page 277. Whereas Respondent’s written authorities do not clearly support its position, Petitioner’s authority does so. At best, Respondent’s supporting evidence is inconclusive, and Petitioner appears to have satisfactorily supported her answer. In question 34, the Board seeks to test the examinee’s knowledge regarding the proper procedural steps to achieve natural color for a client whose hair has been previously bleached and toned. Whereas Petitioner indicated the first step is to (apply conditioner to porous ends), answer “A,” the Board’s correct answer is (perform a strand test), answer “C.” The use of a strand test first will permit the cosmetologist to determine how the client’s hair will react to certain products and should always be performed. Petitioner’s answer is incorrect. Question 35 relates to the same factual situation as posed in Question 34. Here, however, the Board wants to know what products are mixed to create a highlighting shampoo. The Board’s correct answer is “A” (aniline derivative tint, developer, and shampoo), whereas Petitioner chose as her answer “D” (water, developer, and shampoo). The Board’s two references, cited previously, support its answer defining a highlighting shampoo as a mixture of shampoo and hydrogen peroxide. Hydrogen peroxide is the same as a developer. Water provides no lift to the color, and Petitioner’s answer is, therefore, incorrect. Question 39 relates to the process for lightening a client’s gray and resistant virgin hair, and requires the examinee to select the proper pre-softener. Petitioner chose answer “C” (temporary rinse), whereas the Board’s correct answer is “A” (hydrogen peroxide). Gray hair is generally resistant to color. The Board’s references, cited previously, indicate that peroxide can lift the hair cuticle to make it more receptive to a tint. Petitioner provided no reference to dispute this, and her answer is incorrect. Question 56 seeks to determine the proper strength of a chemical product to use for a chemical blow-out on a client whose hair was tinted the week previously. Petitioner selected “C” (regular), whereas the Board’s correct answer is “B” (mild). According to Ms. Nealy, the Board’s expert, when treating African-American hair which has never had a chemical relaxer applied, even when using a mild tint, the operator should use a mild relaxer, rather than regular, to avoid damage to the hair. Petitioner chose regular because, according to the terms of the question, the client’s hair was in good condition. Had there been any reference to damage, she would have chosen mild. In her opinion, different product companies label the strength of their product differently. Hair which has been colored is not necessarily damaged by the coloring. However, since a chemical has been applied to the hair to color it, the operator must be careful in using additional chemicals and must use the least strength that will do the job without causing damage to the hair. For this reason, the Board’s answer is correct. Question 66 refers to a client with long, strong hair which, reportedly, has been resistant to prior efforts at applying a permanent, and asks how best to produce a lasting curl. Whereas the Board’s correct answer is “D” (shape the hair before the perm and process on medium rods), Petitioner selected “B” (process on medium rods and shape the hair after the perm). The Board’s expert contends that since the question does not reflect that the customer also sought styling, her hair should be shaped before the perm because after the perm has been applied, the hair will be curly and the operator may miscut it. Though not mentioned as a part of the question, Ms. Nealy noted that springy hair cut after a perm will, in 9 out of 10 cases, result in the cutting of more hair than is desired. Cutting after the perm is also recommended in Milady’s at page 200. Petitioner chose to shape the hair after the perm because, she contends, if it is shaped before the ends are straight, it will be hard to roll the hair. She refers as authority to the same section of the Milady’s text, though a later edition. Review of that provision reveals it to be identical to the provision in the earlier edition relied upon by the Board. Review also reveals that additional considerations, not mentioned in the examination question, qualify that section relied upon by Petitioner. Based upon the examination question as written, Petitioner’s answer is incorrect. Question 69 seeks to determine what actions might be taken to prevent hair breakage after the application of a chemical relaxer. Though Petitioner chose “C” (use a conditioning shampoo), the Board’s correct answer is “B” (perform a strand test). Ms. Nealy, the Board’s expert, indicates that whenever a chemical is to be applied to hair, the operator should do a strand test to see if the client is allergic to the chemical and if the hair will take it. Authority for that answer is found in the Prentice Hall Textbook at page 365. Petitioner offered no authority for her choice. It was incorrect. Question 71 seeks the proper temperature for drying hair saturated with an acid-based solution. The Petitioner answered “B” (cool), whereas the Board’s correct answer is “D” (warm). Neither a hot nor a cold dryer is appropriate. A hot dryer may burn the hair, but a cold dryer is less helpful than a cool one. Heat helps penetrate the solution, but a cool dryer will not support penetration. Petitioner chose her answer, cool, so that the acid- based solution would penetrate and relax the hair. Nonetheless, the authorities cited by both parties indicate that some heat is required. If external heat is used, it should be used at a warm setting. Petitioner’s answer, therefore, is incorrect. In question 72, the examination seeks information as to why some of the client’s hair remained curly after a relaxing treatment. The Board’s correct answer is “C” (subsections were too large), but Petitioner chose “B” (solution was too mild.) According to the Board’s expert, if an operator treats too large a section of hair at one time, the relaxer may not work sufficiently and may leave some curl in the hair. Petitioner’s answer, indicating that the solution was too mild, may achieve the desired result, but use of a stronger solution adds risks to the hair which need not be assumed if the size of the work section is reduced. Therefore, the Board’s answer is the better one. Question 91 calls for classification of terms. The Board’s correct answer is “A” (back combing), whereas Petitioner chose “D” (styling). The Board’s expert referred to styling as the final touch, and claims that back combing, a method of combing hair, includes such procedures as teasing, ratting, and French lacing. Authority for the Board’s position is found in Milady’s at page 143, and in the Prentice/Hall Textbook at page 198. Petitioner’s cited authority supports the Board’s position. Question 95 asks why a client’s hair does not hold curl. Petitioner claimed the answer is “B”, (too much elasticity), while the Board’s correct answer is “C”, (too much moisture). A thermal curl is a hot curl using a curling iron. Too much elasticity in the hair, as suggested by Petitioner, has little to do with why the curl won’t hold. Elasticity, as cited by Petitioner, is the ability of hair to return to normal after being stretched, and it has nothing to do with retaining too much curl. In a thermal curl, moisture is the controlling factor. Dry hair is necessary for a successful curl. For this reason, Petitioner’s answer is incorrect. All questions asked on the examination in issue are within the scope of the expected knowledge of a candidate for licensure as a cosmetologist. They are basic, entry-level questions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final order sustaining the grades given for all questions except numbers 20 and 30 on the December 1996 Cosmetology examination, and that she be given credit for questions numbers 20 and 30. DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998. COPIES FURNISHED R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lydia S. Castle, Esquire Gulfcoast Legal Services 641 First Street South St. Petersburg, Florida 33701 Lynda L. Goodgame General counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Executive Director Board of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 Whether Respondent Nancy Moss' cosmetology instructor's license should be suspended or revoked, or whether other disciplinary action should be taken by Petitioner against Respondent for alleged violation of Section 477.025(1), Florida Statutes (1980 Supplement), and Section 477.028(1)(b), Florida Statutes (1979).
Findings Of Fact On May 28, 1981 Petitioner Department of Professional Regulation, Board of Cosmetology filed an Administrative Complaint seeking to suspend or revoke or take other disciplinary action against Respondent Nancy Moss as licensee and against her license as a cosmetology instructor. The complaint charged Respondent Moss with three (3) counts of misconduct for holding herself out as a cosmetologist and a cosmetology instructor and for operating a cosmetology salon without being duly licensed. Respondent holds an inactive cosmetology instructor's license #1C 0083468. The inactive receipt was dated July 31, 1980 and expired June 30, 1981 (Petitioner's Exhibit 1). Respondent was the owner and operator of the American Hairstyling Academy, a barber school duly licensed by the State Board of Independent Post- Secondary Vocational, Technical, Trade and Business Schools during the time pertinent to this hearing. The school ceased operation on July 1, 1981. The Director of the State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools, a witness for Petitioner, made an official visit to the American Hairstyling Academy on January 21, 1981. He saw a woman sitting in one (1) of the six (6) or seven (7) chairs in the facility with rollers in her hair and saw Respondent Moss performing a service on the woman's hair. After the Director had identified himself, Respondent gave him the American Hairstyling Academy school records to examine and then proceeded to complete her work on the woman's hair. The Director noticed a room with clothes hanging on racks and trinkets in a counter with a sign, "Boutique," near the door. The room had been previously designated as a classroom for the barber school. Before the Director left, one (1) other person entered the premises. (Transcript, pages 12 through 34.) The Supervisor I, Office of Investigative Services, Jacksonville, Region II, made an appointment for a shampoo and set with Respondent Moss on February 4, 1981 at the American Hairstyling Academy. She appeared at the designated time, and Moss performed the shampoo and set. The Supervisor saw a room in which clothes were hanging and saw an area beyond that room which was separated with a cloth curtain. Before the Supervisor left, one (1) other person entered the premises. The Supervisor paid for the hair service and left the school. (Transcript, pages 34 through 41.) An investigator for Petitioner saw two (2) women at the academy, one having her hair serviced and one (1) waiting for Moss. The investigator was told by Respondent that teaching was done at the school and that there were two students enrolled, but no student records were produced for her to examine. She saw no blackboards or what she recognized as a classroom. (Transcript, pages 41 through 51.) A witness for Respondent had his hair washed, conditioned and cut many times in Respondent's barber school by students. He has had the same service done by the Jacksonville Barber College. (Transcript, pages 62 through 67.) A former student stated that she attended the American Hairstyling Academy for two (2) months, and Respondent Moss supervised the work done by the students. She attended classes with five (5) other students in a classroom at the American Hairstyling Academy and checked out books from the library, but she did not complete the course. (Transcript, pages 67 through 71.) Respondent called another witness who had had students at the barber school work on her hair on approximately ten (10) different occasions, but Respondent Moss did not work on her hair. (Transcript, pages 71 through 74.) The Hearing Officer finds that the licensed barber school owned and operated by Respondent Moss prior to July 1, 1981 had a few students, six (6) or seven (7) chairs, a small area that was used by students and Respondent for instruction and a minimal library. The testimony and evidence presented by both parties show that Respondent Moss was a practicing barber in a licensed barber school. Her acts could also be classified as practicing cosmetology although she said she practiced barbering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint filed against the Respondent Nancy Moss be dismissed. DONE and ORDERED this 4th day of November, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 4th day of November, 1981. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stanley B. Gelman, Esquire 207 Washington Street Jacksonville, Florida 32202 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the witnesses at the hearing, the following facts are found. In 1980 Ruth Sinclair became interested in hair braiding and hair sculpture while she was studying the history of African art at the University of Miami. Since her initial interest in hair braiding and hair sculpture, Ruth Sinclair has made extensive efforts to study the subject and to learn and improve her skills in hair braiding and hair sculpture. Shortly after her initial interest in hair braiding and hair sculpture, Ruth Sinclair began practicing hair braiding and hair sculpture in Florida and she has continued to do so more or less continuously ever since then. Ruth Sinclair is predominantly self-taught in the field of hair braiding or hair sculpture, but she also obtained some training from others by going to California and Africa. The practice of hair braiding and hair sculpture originated in the Nok region on the west coast of Africa around 200-300 B.C. As used in Africa since that time, particular types of sculptured or braided hairstyles have served to identify the wearer's tribe or status in society. However, despite centuries of such hair braiding practices by African Blacks, the practice was virtually lost among Blacks who were brought to the United States as slaves. As practiced by Ruth Sinclair, hair braiding or hair sculpture consists of two basic categories or types of hair styles. These are the traditional styles and the contemporary styles. The traditional styles are patterned after styles that were used in the past in Africa and consist of hair braids that follow the same pattern as some forms of weaving. Sinclair ordinarily spends approximately 35 to 40 hours to produce a traditional style hair sculpture, and in more than ten percent of the cases in which Sinclair produces a traditional style hair sculpture, Sinclair charges a fee. The contemporary style involves the use of the same techniques as the traditional style but also involves the use of contemporary materials produced by modern technology such as synthetic or human hair and commercially-made ornaments or beads. In producing a contemporary style hair sculpture, Sinclair ordinarily spends approximately 8 to 20 hours, and she normally charges a fee. As practiced by Ruth Sinclair, hair sculpturing, whether of the traditional or the contemporary style, is produced primarily by hair braiding. The hair braiding is done by hand, by intertwining strands of hair. No tools are used other than a long, tapered instrument for lifting up strands of hair. The person's hair is not treated with any type of chemicals, nor is it cut or shampooed (although Sinclair requests that her patrons wash their hair before receiving any services), and Sinclair washes her hands in soap and water before, during, and after performing her services. The braided or sculptured hairstyles are normally worn for approximately 3 to 6 months. Nearly ninety percent of Sinclair's patrons were Black women. During the period from 1982 until sometime in 1984, Ruth Sinclair leased a storefront at 6009 N.W. 7th Avenue, Miami, Florida, and there she conducted a business of performing hair braiding or hair sculpture. The name of the business was Uzuri Braid Shop, and the business had about twenty paying customers per week. At the Uzuri Braid Shop at 6009 N.W. 7th Avenue, Miami, Florida, Ruth Sinclair employed Respondent Picala Simsa, and also Angela Powell or Powers as assistants. Picala Sims was employed as an assistant there from 1982 until 1984, and Powell or Powers from 1983 until 1984. Both were hired by Ruth Sinclair, and Ruth Sinclair paid them both a salary. Their duties were basically the same: to assist Ruth Sinclair in braiding and beading patrons' hair. On August 2, 1983, Joyce Sager, an inspector employed by the Petitioner, conducted an inspection of the Uzuri Braid Shop at 6009 N.W. 7th Avenue, Miami, Florida. On that occasion, Picala Sims and Angela Powell or Powers were present and were performing hair braiding services for customers of the business. Ruth Sinclair was not present at the time, but Sager spoke with Ruth Sinclair on the telephone that day, and in the course of their conversation, Ruth Sinclair acknowledged to Inspector Sager that she was the owner of the business and that she was the employer of Picala Sims and Powell or Powers. During the period from November 1983 until November 1984, Ruth Sinclair leased space in an indoor flea market at 18200 N.W. 27th Avenue, Miami, Florida, and there she conducted a business of performing hair braiding or hair sculpture. The name of the business was Uzuri Braid Shop, and the business had about 15 paying customers per week. On June 9, 1984, Dorsey Hayes, an inspector employed by the Petitioner, went to the Uzuri Braid Shop at 18200 N.W. 27th Avenue, Miami, Florida, and spoke with Ruth Sinclair. During the course of the conversation, Ruth Sinclair acknowledged being the owner of the business and that she had been performing braided hairstyles there. None of the following people have ever been licensed to practice cosmetology or barbering in the State of Florida: Ruth Sinclair, Picala Sims, Angela Powell, or Angela Powers. Neither the Uzuri Braid Shop at 6009 N.W. 7th Avenue, Miami, Florida, nor the Uzuri Braid Shop located at 18200 N.W. 27th Avenue, Miami, Florida, has ever been licensed to operate as a cosmetology salon or as a barber shop. There are certain conditions under which it would be inappropriate to give a person a braided hairstyle, even though the person wanted one. These conditions include the presence of a contagious scalp disease, abrasions of the scalp, hair that is not clean, or chemically treated hair that is very dry or damaged. The recognition of these conditions is a regular part of the curriculum currently being taught in schools of cosmetology in Florida, and someone not having received such training would be less likely to recognize them, which could lead to hair breakage or to the spread of contagious scalp diseases or parasites if a hair braiding service were performed when such conditions were present. The teaching of hair braiding has been a regular part of the curriculum of Florida schools of cosmetology at least since 1975.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Cosmetology enter a Final Order adopting the foregoing findings and conclusions and imposing an administrative fine in the amount of $1, 500.00 against Ruth Sinclair and an administrative fine in the amount of $500.00 against Picala Sims. DONE AND ORDERED this 20th day of September, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 20th day of September, 1985. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Patricia Graham Williams, Esq. 18583 N.W. 27th Avenue Miami, Florida 33056 Myrtle Aase, Executive Director Board of Cosmetology Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Bart Sklansky is the President of Sunshine Hair Fashions, Inc., which is the owner of a salon operating under the name of Sunshine Scissors, located at 5568 Flamingo Road, cooper city, Florida. At all times material hereto, Sunshine Hair Fashions, Inc., was licensed by the State of Florida, to operate a cosmetology salon under License No. CE0040983, and the Sunshine Scissors Salon located at 5568 Flamingo Road, Cooper City, Florida operated under that license. Mr. Sklansky owns several other salons and he visits each location from time to time to oversee the operations. Petitioner was and is the state agency charged with regulating the practice of cosmetology in the State of Florida. On January 20, 1988, Leonard Baldwin, an inspector for the Department of Professional Regulation, entered the Sunshine Scissors Salon (hereinafter the "Salon") for the purpose of conducting a routine inspection of the premises. Mr. Baldwin has been an inspector for the Department of Professional Regulation for approximately four years. As part of his job, he inspects approximately 32 cosmetology salons per week and prepares a written inspection report reflecting his visit. He generally reviews those reports with the employees who are present. He will generally inspect a salon only once a year unless there are problems. At the time of Mr. Baldwin's inspection in January of 1988, the Salon was basically in good shape with the exception of the work station of one of the operators, Kenneth Hayman. The shop is professionally cleaned once a week and the employees make sure that the floors, mirrors and waiting areas are clean at all times. However, each individual operator is responsible for the cleanliness of his particular work station. While Mr. Hayman is not deliberately unsanitary, he is sometimes careless and needs constant prodding and reminders to keep his work station clean. As noted on his inspection report (Petitioner's Exhibit 3), Mr. Baldwin found certain conditions which he felt were unsatisfactory during his January 20, 1988 visit. Among the conditions he noted were the following: the back bar of at least one of the work stations was dirty and had excessive dust; there was excessive hair on the floor; combs and brushes from at least one of the work stations contained excessive hair; and it appeared that the implements and utensils from at least one work station were not being properly cleansed, sanitized, or stored. However, no direct testimony was presented as to the proper method for sanitizing or cleaning the implements and no evidence was presented as to how Respondent's procedures failed to meet the regulatory standards. Although Mr. Baldwin's investigation report (Exhibit 3) indicates as an additional deficiency that "sanitary towels/neck strips were not being placed around patrons necks," no explanation was given as to the basis for this noted deficiency and no direct testimony was offered to support this contention. All of these deficiencies, identified under the pertinent rules of the Board's, were brought to the attention of Pam Greco, one of the operators at the Salon. Bart Sklansky was not made aware of the deficiencies until several months later. He never noticed any problems during his visits to the Salon. On October 2, 1988, Mr. Baldwin again inspected the Salon. The general condition of the shop was satisfactory. However, the work station of Kenneth Hayman was again found deficient in certain areas. More specifically, the back bar area around this work station was dirty and it appeared that utensils may have been used on more than one patron without being sanitized. Mr. Baldwin did not explain how he reached this conclusion. After the second inspection, Mr. Hayman paid more attention to the cleanliness of his work station and kept it clean the majority of the time. However, on December 9, 1988, Mr. Baldwin against inspected the salon and noted similar deficiencies to those he found during the October 1988 inspection. Mr. Hayman's work station has never been the source of any customer complaints. Mr. Hayman has been informed that his work station must be kept clean and he has kept his work station clean since the last inspection.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board of cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(9), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of $100. DONE and ENTERED this 5th day of May, 1989, in Tallahassee, Florida. J. STEPHEN MENTON 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 5th day or May, 1989. COPIES FURNISHED: Tobi C. Pam Staff Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Bart Sklansky Sunshine Hair Fashions Post Office Box 601667 North Miami Beach, FL 33160 Myrtle Aase Board of Cosmetology Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-075010
