The Issue Whether Respondent engaged in the practice of cosmetology or a specialty without an active license in violation of Section 477.0265, Florida Statutes (2005), and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and the testimony of witness presented, and the record in this case, the following findings of fact are found: At all times material hereto, Respondent was regulated by the Department. Respondent's last know address and his address of record with the Department is 421 Champagne Lane, Brandon, Florida 33510. This is also the address written on the Election of Rights Form submitted to the Department in which Respondent requested a formal hearing. At all times material hereto, John Miranda was employed by the Department as an environmental health specialist, where he has been working for approximately nine (9) years. As an environmental health specialist, Mr. Miranda conducts inspections for the Board of Cosmetology. On December 14, 2005, Mr. Miranda conducted an inspection of the Eclips Barber Shop (Eclips) located at 1221 Kingsway Plaza, in Brandon, Florida. During the inspection, Mr. Miranda observed Respondent cutting hair. However, when asked to do so, Respondent did not produce either a barber license or cosmetology license. On December 14, 2005, Respondent was not licensed as either a barber or a cosmetologist. Respondent was eligible to take the cosmetology examination on September 10, 2004. As of December 20, 2005, Respondent had successfully completed all parts of the cosmetology licensing examination. Respondent was not licensed as a cosmetologist until more than three months after the December 14, 2005, inspection. Respondent was initially issued a cosmetology license, License No. CL 1183800, on or about March 31, 2006. That license is current and active, with an effective date of March 31, 2006, through October 31, 2007.
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 (1) finding that Respondent, Camilo Torres, engaged in the practice of cosmetology without a license, an act proscribed by Subsection 477.0265(1)(a), Florida Statutes (2005), and (2) imposing an administrative fine of $500 for that violation. DONE AND ENTERED this 5th day of September, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 5th day of September, 2006. COPIES FURNISHED: Camilo Torres 421 Champagne Lane Brandon, Florida 33511 Lee C. Hawley Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32303 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Is Petitioner entitled to the receipt of an additional point(s) for her cosmetology examination given by Respondent on December 17, 1997?
Findings Of Fact Petitioner was a candidate for the written clinical part of the cosmetology examination given by Respondent on December 17, 1997. Petitioner had requested ADA accommodations for her dyslexia as part of her examination. On December 5, 1997, Respondent through a special testing coordinator of the Bureau of Testing, wrote to Petitioner to inform Petitioner that Petitioner's request for special testing accommodations for the December 17, 1997, cosmetology examination had been approved. Through this correspondence Petitioner was told: The following provision(s) have been approved: READER who will also mark your answers on your scan sheet, time and a half, and a private testing area. * * * If you experience any problems at or during the examination, please notify the examination supervisor on site immediately. In furtherance of its commitment, Respondent provided Ms. Ruth Schneider to read the examination questions and the multiple answer choices in the written clinical cosmetology examination given on December 17, 1997. Before serving in the role of reader Ms. Schneider had several hours of training. Ms. Schneider had attended a meeting at the test site. In her orientation, Ms. Schneider was instructed concerning any changes in procedures from the last time she had worked as part of a group administering examinations, to include the cosmetology examination in this case. Ms. Schneider was informed about how the paper work should be handled in the cosmetology examination at issue, specifically how to protect a candidate's papers. In carrying out her duties in assisting Petitioner at the December 17, 1997 cosmetology examination, Ms. Schneider read Petitioner the questions and choice of answers and marked the letter answer that represented Petitioner's choice for responding to the question. Ms. Schneider did not discuss with Petitioner any possible answer to be given to any question. Ms. Schneider did not suggest an answer to be given. Ms. Schneider was not competent to suggest an answer to be given, not having training as a cosmetologist. Ms. Schneider marked the letter of the answer which Petitioner chose for a given question by using a no. 2 pencil and bubbling in the circle of the letter chosen for the answer as reflected on the cosmetology examination score sheet for Petitioner. Later, when the score sheet was graded by Respondent by the use of a template placed over the score sheet, in the event the answer given by Petitioner was not the answer deemed by Respondent to be correct, a dashed line would be marked through the answer Respondent found acceptable, with the bubbled- in answer chosen by Petitioner remaining on the answer sheet. The bubbling of an answer means that the circle with a letter equated to the answer to the specific question would be filled- in. When the examination had been completed both Petitioner and Ms. Schneider executed a form of the Bureau of Testing referred to as an ADA Site Verification Form. In the execution of that form Petitioner replied in the affirmative to the following questions: Were you provided special provisions as indicated above (this was in relation to Petitioner's time and a half, a reader who will also mark your answers on your scan sheet, and a private testing site)? Were you satisfied with the special provisions provided during your examination? Were you informed in previous correspondence should you experience any problems at, or during examination, to notify the examination supervisor on site immediately? Did a proctor or scribe mark you answers for you? If you answered "yes", were your satisfied that your intended answer choices were marked? Ms. Schneider verified in writing that the special provisions were provided to the candidate as had been referred to above, and that Petitioner did not request the assistance of an examination supervisor during or at the examination. Both Petitioner and Ms. Schneider signed on December 17, 1997, acknowledging the responsibilities of the reader as being: The following guidelines have been established for candidates who use a reader during the written examination. This will ensure that their examination questions and answers are accurately read (and answers marked if necessary). The reader CANNOT INTERPRET, RE-WORD, OR PROVIDE ASSISTANCE IN DETERMINING THE ANSWER to any test question. The reader may read the test question and/or test materials as many times as requested by the candidate. The reader may read the questions in ENGLISH ONLY. The reader CANNOT TRANSLATE the examination questions to any other language. Both the candidate and reader will have an examination book, unless the candidate is visually impaired and does not require the use of a book. The question, answer choices and answers will be read to the candidate by the reader. If a scribe is being used (proctor to mark or transfer answers): The reader will verbally re-read the answer choice and answer to the candidate for verification. After a candidate has completed the examination, and time permits, the candidate has the option to review the examination questions and indicated responses. Due to the length of some examinations, it may be necessary for the reader to take a break. During that time the candidate is also to take a break. The same reader should be used during the entire session for continuity. As stated, Petitioner believes that the answers she gave to questions 19, 24, 25, 30, 46, 50, 55, and 78 were correct. Petitioner had made known her concern about being graded down for her answers to those questions in remarks recorded on the examination review scratch paper, when afforded the opportunity to review the examination results on February 20, 1998. See Section 455.217, Florida Statutes. In addition to Petitioner's testimony concerning her answers to the examination questions at issue, Petitioner presented the testimony of Mr. Bobby W. Parks, Jr., a practicing cosmetologist licensed in Florida, who has also served as an instructor in cosmetology at the Franklin Peterson Academy in Duval County, Florida. Mr. Parks offered his testimony concerning the results of the answers which Petitioner gave to questions 24, 46, 50, 55, and 78. In support of its decision to find the answers Petitioner gave to the subject questions to be incorrect, Respondent presented the witnesses Ms. Carol Nealy and Ms. Beth Hildebrand, cosmetologists licensed to practice in Florida who also serve as consultants to Respondent in the periodic preparation and administration of the cosmetology examination. Ms. Carol Nealy and Ms. Beth Hildebrand also pointed to references within the cosmetology profession that are generally accepted in cosmetology school and within the practice of cosmetology to support their respective opinions concerning the propriety of the answers to the subject questions which Respondent deems to be correct. In response to question number 50, Petitioner chose answer: D. pre-softening solution. The preferred answer by Respondent was: C. cream conditioner. In his opinion, Mr. Parks indicated that either answer would suffice. His opinion is accepted. Respondent's experts' opinions are rejected. Petitioner's answer to question 50 is credited. Otherwise, the answers which Petitioner gave to question numbers 19, 24, 25, 30, 47, 55, and 78 are incorrect in that Petitioner and Mr. Parks in their testimony are unpersuasive, and Ms. Nealy and Ms. Hildebrand are persuasive in their testimony, supported by references, that the answers preferred by Respondent are correct and the answers given by Petitioner are incorrect.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which credits the Petitioner for the answer given to question number 50, as well as the earlier credit extended for the answer given to question number 63, and that otherwise denies Petitioner relief. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 15th day of January, 1999. COPIES FURNISHED: Patricia A. Crawford Parson 8574 Vining Street Jacksonville, Florida 32210 Patricia A. Crawford Parson Mickey's House of Beauty 1233 Lane Avenue, Suite 23 Jacksonville, Florida 32210 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda A. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joe Baker, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Petitioner Schutte satisfied the requirements which enabled her to sit for a cosmetology examination. She took the examination given in July of 1979 and passed the practical portion with a grade of 80, but she failed the written theoretical portion with a grade of 69. In October of 1979, Petitioner again took the theoretical portion of the cosmetology examination and failed with a grade of 72. She returned to cosmetology school and took forty (40) hours of remedial training. Thereafter, in December of 1979, Petitioner took the theoretical portion of the examination for the third time, on this occasion failing with a grade of 71. A passing grade of 75 is required for licensure. Petitioner Schutte has been employed in the cosmetology business owned by Leni Nelson since December of 1979. She has satisfied her employer with her work in the limited area of cosmetology she is allowed to perform without licensure. Ms. Nelson has found Petitioner to be interested in her work and concerned with the welfare of the customers, and she hopes that the problem Petitioner has encountered with the written examination can be resolved. Petitioner Schutte did not notify the Respondent Board that she had difficulty in reading written examinations, although she took three (3) consecutive written examinations. After consideration of the evidence and hearing testimony presented at the formal hearing, the Hearing Officer finds that Petitioner has a reading problem and therefore is at disadvantage in taking written examinations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends the following: Deny licensure to the Petitioner, Tracy D. Schutte; Notify the Petitioner that she may take the written portion of the examination again using a reader of her choice pursuant to Rule 21F-6.04(6), Florida Administrative Code. DONE and ORDERED this 16th day of May, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Ms. Tracy D. Schutte 1960 Byram Drive Clearwater, Florida 33515 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Respondent's alleged violation of Section 477.14(1) & 477.17, Florida Statutes. Receipt of Administrative Complaint and Notice of Hearing was acknowledged by Respondent. (Exhibit 1)
Findings Of Fact On May 20, 1975, Respondent was employed at the Elizabeth Arden cosmetology salon, 340 Miracle Mile, Coral Gables, Florida. This salon operates under Certificate of Registration No. 21626 issued by Petitioner on May 8, 1975. Petitioner's inspector had seen an ad in the Miami Herald to the effect that Respondent was employed at that establishment and she was aware of the fact that he did not hold a current cosmetologist license. She visited him on May 20, 1975 and he stated at that time that he had applied for a license. The inspector checked with Petitioner's records personnel and discovered that his license had not been renewed at that time. (Testimony of Padrick) Respondent submitted letters dated June 25, 1976 in which he stated that he had planned to attend his hearing but was unable to do so because of illness in the family. He further stated that he had been a licensed cosmetologist in the State of Florida for over 20 years, and previously one in Illinois for over six (6) years. He stated that he had severe medical problems and went out of the beauty field for approximately two years and when the job opportunity at Elizabeth Arden came along he forwarded a check for $35.00 to Petitioner to reinstate his cosmetology Certificate and that when Petitioner's inspector entered the shop on May 20, 1975, his new license had not yet been received. However, he did show her the check stub. They then jointly called Petitioner's Winter Haven office and he was advised that the check had not been received but that he should send a money order and his old license stub. He did so and his license was received on June 14, 1975. (Statement of Respondent)
Recommendation That the allegation against Respondent be dismissed. DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald C. LaFace, Esquire P.O. Box 1752 Tallahassee, Florida Robert Wintermute c/o Elizabeth Arden 340 Miracle Mile Coral Gables, Florida
The Issue Respondent's alleged violations of Section 477.02(6), 477.15(8) and 477.27, Florida Statutes.
Findings Of Fact Respondent owns Kathy's Colonial Curl and Comb, Ocean Ridge, Florida and was issued Certificate of Registration No. 21533 to operate a cosmetology salon by petitioner on April 15, 1975. On November 12, 1975, Petitioner's Inspector visited Respondent's place of business and discovered LaVerne Beres giving a shampoo and set to a customer. Beres informed the Inspector that she had just graduated from school and believed that the school would give her a permit to act as a cosmetologist, but that she did not have a license at that time. (Testimony of Padgett). Respondent testified Beres had told her that she had applied for a permit and that it would come in the mail shortly. Respondent's reason for hiring Beres without a license was because it was the busy season and she needed an operator. Respondent normally insists on her employees having licenses prior to hiring them. Beres is now licensed. (Testimony of Kight).
Recommendation That a letter of reprimand be issued to the Respondent for violation of Section 477.02(6), Florida Statutes. DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire P.O. Box 1752 Tallahassee, Florida Ms. Luddy Gene Kight 5011 N. Ocean Boulevard Ocean Ridge, Florida 33444
Findings Of Fact Shortly after ten on the morning of December 2, 1977, Jacob Rubin, an inspector in petitioner's employ, entered respondent's shop. There he found respondent, a registered cosmetologist who had arrived a minute or two earlier, and William E. Reed, who was washing his mothers hair. Respondent employs Mr. Reed as a wig stylist, not as a cosmetologist. Mr. Reed does not have a certificate of registration with petitioner. On December 2, 1977, Martha Abraira, master cosmetologist and wife of respondent, awoke with a headache. She had no appointments at respondent's shop until half past eleven and knew that her husband also had no appointments before then. He went ahead to the shop by himself. She arrived shortly after eleven in the morning. The shop hours are from ten in the morning until six in the evening.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 18th day of July, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George Abraira d/b/a House of Fashions 6204 Johnson Street Hollywood, Florida 33024 Daniel J. Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32302 George Abraira, Jr. 6135 Pierce Street Hollywood, Florida 33024
Findings Of Fact Petitioner has applied to be licensed as a cosmetologist by the Board of Cosmetology of the State of Florida. In pursuit of her application she took the practical examination given by the Department of Professional Regulation, in Winter Haven on June 10, 1982. She received a grade of 66.5 on that portion of the examination. A passing grade is 75.0 or above. Petitioner did pass the written portion of the examination. Because the grade for the written portion is not averaged with the grade for the practical exam, it is irrelevant here. Ms. Forchion's only experience or expertise in the field of cosmetology comes from her study in a half-year course given at Orange County Vocational Technical School. Ms. Forchion contests the following grades received on the indicated portions of the practical examination: Shampooing 3.0 of a maximum 5.0 Permanent waving 12.0 of a maximum 20.0 Bleaching 11.0 of a maximum 20.0 Tinting 13.5 of a maximum 15.0 At the final hearing Ms. Forchion testified that she performed all the procedures properly for each of the areas examined. She did not however, know what the grading criteria to be used by the examiners were. For this reason she was unable to say that her performance met the standards established by the Board of Cosmetology for passing grades. Ms. Forchion's only standards for judging her own work came from her instruction at school. Respondent presented testimony from two of the examiners who were present at the time and place of Petitioner's examination. They had no recollection of Petitioner's performance on the practical exam and therefore were unable to provide testimony about the adequacy or inadequacy of her performance. During the shampooing portion of the examination, there was a deficiency in water pressure. The individual examination stations are apparently supplied by a common water main. When all of the examinees attempted to use water at the same time, the supply was inadequate. The Department of Professional Regulation employee supervising the examination asked the examinees to turn their water off in order to allow the pressure to return. This was unnerving to Petitioner because the examination was timed. In spite of the paucity of pressure she was able to complete the shampooing to her satisfaction and she did not claim that the lack of water resulted in an unacceptable performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Cosmetology enter a Final Order denying the application of Shirley J. Forchion for licensure as a cosmetologist because she failed to successfully pass the practical portion of the cosmetology examination as required by Section 477.019(1)(c), Florida Statutes (1981). DONE and RECOMMENDED this 6th day of December, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 6th day of December, 1982. COPIES FURNISHED: Shirley J. Forchion 3000 Orange Court Apartment 85 Orlando, Florida 32805 M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Suite 1601 Tallahassee, Florida 32301 Myrtle Aase, Executive Director Florida Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION SHIRLEY J. FORCHION, Petitioner, vs. CASE NO. 82-2352 DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY, Respondent. /
Findings Of Fact Toni M. Farmer, presently holds an active cosmetology license issued by Petitioner, License No. CL0062662, for the period July 19, 1982, through June 30, 1984. Between May 6, 1980, and July 6, 1981, Farmer worked as a cosmetologist in a salon operated by Shear Pleasure, Inc., in Jacksonville, Duval County, Florida. Shear Pleasure, Inc., is the holder of License No. CE0027634. Beginning July 13, 1981, to the present, Farmer has worked as a cosmetologist in the salon, Josef and Charles, Inc., d/b/a Josef and Charles Styling Salon, License No. CE0022674, located in Orange Park, Florida. When Farmer began her employment with Shear Pleasure she had a current and valid cosmetology license issued by Petitioner, which license expired June 30, 1980. Around August 18, 1980, Farmer forwarded a cashier's check made payable to the Board of Cosmetology for purposes of renewing her delinquent cosmetology license. Subsequent to the action on the part of Farmer and in the course of a routine inspection, Jewel Walker, an inspector for Petitioner, noted the fact of expiration of Farmer's license. This took place in 1980. When told that Petitioner had not responded to the renewal request, Walker instructed Farmer to post the indicia of payment of fees, i.e., a copy of the cashier's check of August, 1980, at Farmer's work station in the interim and to check the post office for any return of that cashier's check, due to the fact that Farmer had changed her mailing address following the transmittal of the cashier's check. Farmer made other contacts with the Tallahassee, Florida, office of Petitioner to determine the status of her renewal in 1980. In the beginning of 1981, Farmer spoke with Walker about the renewal, having failed to receive any notification confirming license renewal. (In the course of these matters, Walker had indicated certain logistical problems that were taking place, reference license renewal for cosmetologists.) The owner of Shear Pleasure, Inc., Fontaine LeMaistre, was aware of the efforts on the part of Farmer to obtain license renewal and allowed her to continue as an employee during her tenure. When Farmer took a position with Josef and Charles, her employer was made aware of the fact that she did not have the license document and the employer was made aware of the efforts which Farmer had made to obtain the license. On August 11, 1981, Farmer requested the Florida First National Bank of Jacksonville, which had issued the August 18, 1980, cashier's check to stop payment on that check, based upon the fact that the payee, Petitioner, had not cashed the check. This request was honored and on August 13, 1981, a cashier's check was issued to Toni M. Farmer in the like amount of thirty-five dollars ($35.00), which check was subsequently cashed by Farmer. On May 12, 1982, Charles Coats, an investigator with Petitioner, made an inspection of the Orange Park business of Josef and Charles and discovered that Farmer was without a license. At that time, a copy of the original thirty- five dollar ($35.00) check written to the Board of Cosmetology was shown to Coats. Farmer related the circumstances involving efforts which she had made to obtain the license. Following this conversation, and specifically in June, 1982, Farmer maid the necessary fees and offered required credentials which allowed her license to be renewed, effective July 19, 1982.
Recommendation Based upon a full consideration of the facts found, conclusions of law reached and being otherwise informed, it is RECOMMENDED: That a final order be entered which suspends the license of Respondent for a period of fifteen (15) days based upon the violation found in Count I and dismisses Count II. DONE and ENTERED this 29th day of December, 1982, in Tallahassee, Florida. CHARLES C. ADAMS, 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 29th day of December, 1982.
