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
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.
The Issue Whether Respondent committed the offenses described in the Administrative Complaint? If so, what penalty should be imposed?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and has been since September 10, 1980, licensed to practice cosmetology in the State of Florida. Her current license expires June 30, 1992. At all times material hereto, including August 8 and 17, 1990, Respondent has been an employee of the Salon D'Angelo, a cosmetology salon located in Coral Springs, Florida. Lewis Morganstern is an inspector with the Department. On August 8, 1990, Morganstern conducted an inspection of the Salon D'Angelo, including Respondent's work station. During his inspection, Morganstern observed that (a) Respondent did not remove hair from combs and brushes before using them on the next patron; (b) the barbacide Respondent used to sanitize her combs and brushes had hair floating in it; and (c) the drawer in which Respondent stored her combs and brushes also contained her personal belongings. Morganstern warned that these practices were unlawful and therefore should cease. Upon leaving, he advised that he would return to conduct a follow-up inspection. As promised, Morganstern returned to the salon on August 17, 1990. He found the same violations that he had observed during his initial inspection nine days earlier.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Cosmetology enter a final order (1) finding that Respondent committed the violations of law alleged in the instant Administrative Complaint; and (2) imposing upon Respondent an administrative fine in the amount of $250.00 for having committed these violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of September, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1991. COPIES FURNISHED: Tracey S. Hartman, Esquire Mark Harris, Qualified Representative Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Kim Raffaelli Salon D'Angelo 4623 North University Drive Coral Springs, Florida 33065 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
The Issue As to DOAH Case 06-2329PL, whether Ms. Calix violated the provisions of Section 477.0265(1), Florida Statutes (2005),2 by engaging in the practice of cosmetology without an active license as alleged in the subject Administrative Complaint. As to DOAH Case 06-2330, whether Les Scissors Unisex Salon (Les Scissors) violated Section 477.0265(1)(b)2., Florida Statutes, by permitting an unlicensed person (Ms. Calix) perform cosmetology services as alleged in the subject Administrative Complaint.
Findings Of Fact At all times relevant to this proceeding, Les Scissors held Cosmetology Salon license number CE9961882 issued by the Board of Cosmetology. At all times relevant to this proceeding, Ms. Calix was the owner of Les Scissors. At no time relevant to this proceeding did Ms. Calix hold any license issued by the Board of Cosmetology. At all times relevant to this proceeding, Ms. Delrio was an inspector employed by Petitioner. On February 8, 2006, Ms. Delrio inspected the premises of Les Scissors. This inspection occurred during the noon hour. Ms. Delrio saw Ms. Calix giving a man a manicure. Ms. Delrio then testified to two statements made by the man she saw in Les Scissors. First, she testified that he told her that he was a customer. Second, she testified that he said that he was paying seven dollars for the manicure. This man was not identified by name by Ms. Delrio. Ms. Delrio did not see the man pay for his manicure. In February 2006, Ms. Calix was attending a school to become licensed as a cosmetologist. Ms. Calix testified that the man Ms. Delrio saw was not a customer, but he was a friend to whom she was giving a manicure in preparation for a test she was to take at her school. Ms. Calix denied that she charged her friend for the manicure. Ms. Calix testified that the licensed personnel of Les Scissors were out to lunch when the inspector came. Ms. Calix further testified that she used the noon hour to practice for the examination while she watched the premises. Mr. Tejeda testified that he came into Les Scissors toward the end of Ms. Delrio’s inspection. Mr. Tejeda testified that the man identified himself as a customer. There was a conflict in the evidence as to the status of the man receiving the manicure from Ms. Calix on the date of the inspection. The testimony of Ms. Delrio and Mr. Tejeda as to what the man in Les Scissors told them on February 6, 2006, is hearsay within the meaning of Section 90.801(1)(b), Florida Statutes.4 That hearsay evidence, standing alone, was insufficient to establish that the man was a customer or that he was obligated to pay for the manicure he was receiving.5 Moreover, the undersigned finds Ms. Calix’s explanation of the circumstances observed by the inspector and her supervisor to be credible. The conflict in the evidence is resolved by finding that Petitioner failed to prove that the man receiving the manicure from Ms. Calix at the time of the inspection was a customer, and Petitioner failed to prove that the man was obligated to pay for the manicure.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner dismiss both Administrative Complaints. DONE AND ENTERED this 10th day of October, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of October, 2006.
The Issue Whether Florida Administrative Code Rules 64B8-50.003(2) and 64B8-56.002(2)(a) are invalid exercises of delegated legislative authority in violation of section 120.52(8), Florida Statutes (2014). Whether the following four statements are unadopted rules as defined by section 120.52(20): (i.) The Electrolysis Council is a de facto party to a petition for declaratory statement filed with the Board of Medicine concerning the practice of electrology and need not intervene in the proceeding before the Board when considering rules and statutes related to the practice of electrology; (ii.) The Electrolysis Council is a de facto party to a petition to adopt, amend, or repeal an agency rule filed with the Board of Medicine concerning the practice of electrology and need not intervene in the proceeding before the Board when the rules concern the practice of electrology; (iii.) No additional materials can be submitted to the Board of Medicine prior to the meeting of the full Board for consideration of a draft order on a petition for declaratory statement; and (iv.) The Board of Medicine will not consider any materials submitted for consideration within 48 hours of a full Board of Medicine meeting unless the Board Chair allows their distribution to the members.
Findings Of Fact SCMHR is an international non-profit organization with members that include persons licensed as electrologists in the State of Florida. There are currently 177 certified electrologists in the State of Florida who are also members of SCMHR. SCMHR supports all methods of hair removal and is dedicated to the research of new technology that will keep its members at the pinnacle of their profession, offering safe, effective hair removal to their clients. SCMHR advocates for its members. SCMHR also serves the public by providing information on the newest technology in hair removal. SCMHR offers the only national certification for electrologists to gauge and/or show their knowledge of electrology including the use of laser and light-based devices for hair removal and reduction. SCMHR offers four certifications to qualified practitioners. Pertinent to its Petition for electrologists licensed in Florida, there are two certifications: (1) the “Certified Clinical Electrologist” (“CCE”), for those electrologists using the needle modality in hair removal and reduction; and (2) the next certification, to which the CCE is a prerequisite, the “Certified Medical Electrologist” (“CME”), for those using laser and light-based devices for hair removal and reduction. SCMHR also offers two other certifications: “Certified Laser Hair Removal Professional” (“CLHRP”) and the “Certified Pulse Light Hair Removal Professional” (“CPLHRP”). Both of these certifications are designed for allied health practitioners; including physicians, nurses, electrologists and others authorized in the jurisdiction where they reside to practice either laser or light-based hair removal. These certifications are for practitioners who may not personally practice electrology using needle hair removal modalities or who may practice in jurisdictions where an electrology license is not required to use the lasers or light-based devices. An individual electrologist is not required to be a member of the Society in order to obtain certification or maintain certification. Membership in the Society is voluntary. As of December 4, 2014, there were 954 electrologists who hold certification through the Society but are not members of the Society. One hundred and forty-six of the Florida electrologists who are members of the Society hold CCE/CME certification. Members of the Society who are licensed in Florida who wish to use laser and light-based devices in their practices must comply with rule 64B8-56.002. As an organization that advocates for its members, the Society will from time to time seek guidance on the rules and regulations affecting the practice of electrology for its members. It will also seek to lobby on behalf of its members’ interests. Petitioner Walton is a Florida licensed chiropractic physician, a licensed practical nurse, a licensed massage therapist, and a licensed electrologist under the provisions of chapters 456, 460, 464, 478, and 480, Florida Statutes. Walton was issued License Number EO2363. She is a CME/CCE and holds a current certificate with the Society. She is also a member of the Society. As part of her electrology training, Walton asserts that she took the 30-hour course in laser and light-based hair removal set forth in rule 64B8-56.002(2)(a) and completed the course on or about October 25, 2011. She claims, however, to be uncertain as to whether she has to take the aforementioned 30-hour course again despite the fact that no one from the Council or the Board has ever told her, verbally or in writing, that she has to take the course again, nor has she attempted to ask anyone from the Council or the Board if she has to take the course again. Council staff routinely advises callers that the 30-hour course in laser and light-based hair removal only has to be taken once. As of the date of the hearing, Walton had neither performed permanent hair removal on any person with an epilator or laser, did not possess a hair reduction laser, nor did she have any electrology clients. She also did not have immediate plans to perform such services. Respondent is the Board of Medicine (“Board”). The Electrolysis Council (“Council”) is statutorily created by chapter 478 under the Board. Council members are appointed by the Board. On March 5, 2014, the Society filed a Petition for Declaratory Statement with the Board on behalf of its membership and pursuant to section 120.565. It was scheduled to be heard by the Board at their meeting scheduled for April 4, 2014. On March 6, 2014, the Society filed an Amended Petition for Declaratory Statement with the Board. At the Board’s meeting of April 4, 2014, the Board took up both the March 5, 2014, Petition for Declaratory Statement and the March 6, 2014, Amended Petition for Declaratory Statement. The Board determined that pursuant to its rule 64B8-50.003(2), the Petition for Declaratory Statement could not be heard at its meeting. Instead, the Board decided that pursuant to Board rule, the petition should have been first presented to the Council for its recommendation on the petition. Consequently, the Society withdrew its request. On April 29, 2014, the Society filed its Petition for Declaratory Statement with the Board along with a Petition for Variance or Waiver of rule 64B8-50.003(2) that were both copied to the Council. On June 6, 2014, at the Board meeting, the Board considered SCMHR’s Petition for Variance or Waiver and denied SCMHR’s request. At the same meeting, the Board then declined to hear the April 29, 2014, Petition for Declaratory Statement relying on its rule 64B8-50.003(2), and referred the Petition for Declaratory Statement to the Council for consideration and recommendations. The Council considered the April 29, 2014, Petition for Declaratory Statement at its meeting of July 7, 2014. Assistant Attorney General Marlene Stern (“Stern”), who appeared on behalf of the Council, attended the April 3-4, 2014; June 6, 2014; August 1, 2014; and October 10, 2014, meetings of the Board and the April 14, 2014, and July 7, 2014, meetings of the Council where the Petition for Declaratory Statement was either considered or discussed by the Board or Council. At the August 1, 2014, Board meeting, the Council’s attorney, Stern, at the direction of the Council provided the Council’s recommendation to the Board verbally in person. The Board ruled on the Society’s April 29, 2014, Petition for Declaratory Statement and directed Board counsel to draft a final order reflecting the Board’s decision, which was to be presented for approval at the Board’s October 2014 meeting. On August 4, 2014, SCMHR filed a request for it to be permitted to withdraw the request for declaratory statement, which Board staff failed in error to include in the original meeting materials for October 10, 2014. On September 24, 2014, SCMHR submitted via electronic correspondence additional materials for consideration by the Board at its October 10, 2014, meeting. The same day, Board staff placed the additional information SCMHR submitted into the addendum materials for consideration by the Board at their meeting of October 10, 2014. The materials included the transcript of the April 3, 2014, Rules and Legislative Committee discussion regarding electrolysis rules and the issue of certification by SCMHR. Crystal Sanford (“Sanford”), the Board’s Program Operations Administrator, who works in the Board’s office is responsible for preparing and coordinating the agenda materials. Sanford follows the time frame for website electronic agenda deadlines of seven days before the board meeting as set forth in section 120.525(2). If materials are received after the deadline, the protocol is to submit the request to the Board counsel for a recommendation and then to the Board Chair for a determination as to whether the materials should be placed on the agenda and disseminated to the Board members. On October 3, 2014, SCMHR submitted via electronic correspondence more materials for consideration by the Board consisting of a letter from an insurance carrier and a journal article on laser claims. On October 6, 2014, SCMHR sent the Board Staff office another request to withdraw the Petition for Declaratory Statement by electronic correspondence after being informed that the original request provided on August 4, 2014, was not included in the materials. For the October 10, 2014, Board meeting, on the recommendation of Board Counsel and the Chair’s decision, SCMHR’s materials submitted on October 3, 2014, were not disseminated to the members of the Board for consideration because the Board had already ruled on the Society’s Petition for Declaratory Statement on August 1, 2014, and the record was closed on that matter. The draft order was being presented to the Board for approval as previously instructed. At the October 10, 2014, Board meeting, the Board considered SCMHR’s request to withdraw the Petition for Declaratory Statement and denied the request. The Board also denied the request by SCMHR to table consideration of the draft order, and then approved the draft order on the Petition for Declaratory Statement. At or prior to the Board’s October 10, 2014, meeting, the Society did not submit either a written or an ore tenus motion seeking rehearing or reconsideration of the Board’s August 1, 2014, ruling on the Petition for Declaratory Statement. At the October 10, 2014, Board meeting, the Board also had a lengthy discussion about materials regarding PRN and certification being difficult to review and prepare because of last-minute submissions. The Board voted to preclude the submission of additional Board materials submitted within 48 hours prior to the Board meeting. However, if submissions come in within 48 hours, Sanford still checks with the Chair to determine whether to distribute the late-submitted materials. The Order on the Petition for Declaratory Statement was filed on October 20, 2014, and SCMHR took a timely appeal of that Order.
Findings Of Fact At all times material hereto, Respondents, Gary Smith and Brian Dobson, operated two businesses from the premises located at 4905 Sheridan Street, Hollywood, Florida. The first business, Scruples Hair Design, Inc. (Scruples) was a duly licensed cosmetology salon which employed licensed cosmetologists. The second business, Gary Smith and Brian Dobson, d/b/a Hair Replacement Systems (HRS) sold and serviced hairpieces. Neither Smith nor Dobson are licensed barbers or cosmetologists. Although operated from the same location, Scruples and HRS are physically distinct. Separate entrances admit customers to each business. Although an interior passage does permit access to each of the businesses, HRS's office space is clearly separate from that of Scruples. HRS's business consists primarily of the sale and servicing of hairpieces. In the course of that business Respondents take molds of customers' heads from which the hairpieces are designed, cut and fit the hairpieces, and provide incidental services such as cleaning and restyling the hairpieces. Although any actual cutting or styling of a customer's own hair is done by a licensed cosmetologist from Scruples, Respondents do shape and fit the hairpiece. The shaping or cutting of the hairpiece is done both on and off the client's head. Additionally, in fitting the hairpiece Respondents "occasionally" comb or brush some of the client's hair. Smith asserts that any such contact with the client's hair is unintentional. Smith's assertion is inherently improbable. Clearly, if a client has existing hair which the hairpiece is designed to match, the brushing or combining of the hairpiece on the client's head, during a "fitting," will necessarily result in the combing or brushing of the client's own hair where it meets the hairpiece. Dobson conceded that he worked the hairpiece into the natural hairline so the two blended, a technique he referred to as braiding.
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Angela Maria Wynter, has not, at any time material hereto, been licensed to practice cosmetology in the State of Florida. On January 25, 1992, during a routine inspection of Geta's Beauty Phase II, 19905 Northwest 2nd Avenue, Miami, Florida, respondent was observed "combing out" the dry hair of a woman seated in a beauty chair. When asked for her cosmetology license, respondent replied that she did not have one because she was only the shampoo girl. When informed that the services she was performing were beyond those of shampooing, which the inspector advised were limited to washing the hair and drying it with a towel, respondent ceased her activities and the customer moved to another chair where she was attended by a licensed person. 1/ Regarding respondent's employment at the salon, the proof demonstrates that she was employed to work Saturdays, at a rate of $30.00 a day, to shampoo customers' hair, and had been so employed for approximately three weeks before the subject inspection. In addition to shampooing hair, respondent's employment also included "combing out" customers' hair after it had been dried. Respondent was not, however, shown to have engaged in hair arranging or styling, as those terms are commonly used, nor was she shown to have engaged in hair cutting or other activities that might be perceived as the practice of cosmetology as defined by Section 477.013(4), Florida Statutes, discussed infra, or to have held herself out to the public as being available to perform such activities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of April 1993. WILLIAM J. KENDRICK 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 14th day of April 1993.
