The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a Florida-licensed cosmetology salon, holding license CE-84418, located at 2702-B Silver Star Road, Orlando, Florida 32818. On April 11, 2008, Evelyn Williams, an inspector employed by the Petitioner, conducted a routine inspection of the Respondent. During the inspection, Ms. Williams observed three individuals, identified as O'Brian Breedlove, Charley James Hawks, and Shawn Johnson, using clippers to cut the hair of salon customers. Mr. Breedlove is a Florida-licensed hair braider, holding license number HB4110. Mr. Hawks is a Florida-licensed hair braider, holding license number HB4217. Mr. Johnson is a Florida-licensed hair braider, holding license number HB3935. A licensed hair braider is essentially authorized only to weave or interweave human hair and is not allowed to perform hair-cutting. Mr. Breedlove, Mr. Hawks, and Mr. Johnson were operating outside the scope of their licenses when Ms. Williams observed each man using clippers to cut the hair of the salon's customers. Ms. Williams additionally observed that photographs of Mr. Hawks and Mr. Johnson were not displayed with their licenses. During the inspection, Ms. Williams observed that the hair-cutting tools in use at the salon were not being properly disinfected or stored. Sterilizers contained excessive amounts of accumulated hair. Some combs, brushes, and clippers were kept in a drawer that contained used neck strips and other paper products, as well as personal items including cash. Some hair- cutting tools were left on top of workstation counters rather than contained within closed storage drawers. There was excessive accumulated hair on the floor and baseboards, as well as around the workstations. The Respondent's most recent health inspection report was not conspicuously displayed near the front entrance of the salon. The lavatory at the salon was not in good repair. A sink was leaking, and a bucket had been placed underneath the sink to catch leaking water. There were no sanitary towels present, and no mechanical hand dryer was provided. Ms. Williams noted the strong smell of urine in the lavatory and observed that the ventilation appeared to be inadequate. The owner of the Respondent was not present at the time of the inspection. Ms. Williams prepared a report of her inspection and presented a copy of the report to Mr. Breedlove.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Cosmetology, enter a final order, stating that the Respondent violated the statutes and rules referenced herein; imposing a $3,000 administrative fine; and revoking the Respondent's cosmetology licensure. DONE AND ENTERED this 17th day of May, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2010. COPIES FURNISHED: LeChea C. Parson, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-0792 Kwesi Korreh, Esquire Post Office Box 2487 Orlando, Florida 32802 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robyn Barineau, Executive Director Division of Professions Board of Cosmetology Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's cosmetology license should be suspended, revoked or whether Respondent should be disciplined for conduct, as a licensee, which will be set forth hereinafter in detail.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the proposed memoranda and the entire record compiled herein, the following relevant facts are found: Noella C. Papagno (herein sometimes referred to as Respondent) is a licensed cosmetologist under the laws of the State of Florida and has been issued License Number CL 0107656, which license is current through June, 1984. Respondent has been practicing cosmetology for approximately twenty-five (25) years and, prior to being licensed in Florida, was licensed to practice in Rhode Island. (Petitioner's Composite Exhibit No. 1.) Richard Gloss has been employed in the Building and Zoning Department for the City of Dania, Florida, for the past two (2) years. On or about October 12, 1981, Gloss received a complaint that Respondent was operating a salon at one of the ticket booths located at the flea market, 1930 North Federal Highway in Dania Florida. Gloss made a routine inspection through the flea market and observed a sign in front of a ticket booth occupied by the Respondent where upon he approached Respondent and identified himself as an employee of the City of Dania in the Building and Zoning Department. After identifying himself, Gloss inquired of Respondent whether she was properly licensed to conduct a beauty salon. Prior thereto, Respondent had offered to cut his hair. Respondent admits to having offered to cut Gloss's hair and related that she had been cutting hair at that location for approximately two and one half (2 1/2) years and that she charged customers from $.50 to $4.00, depending on the length of their hair and the amount of time it took to cut it. She also explained that she had two (2) licenses -- her cosmetology license and a Broward County Council license -- in order to carry on this business. Respondent described in a very detailed manner her method of water hair cutting and she explained that she used no chemicals and did not attempt to perform any kind of chemical services. Additionally, Respondent testified that she suffers from various allergies and her physician has cautioned her to stay away from dust in beauty salons. (Respondent's Exhibits Nos. 4 and 7.) In mitigation, Respondent offered the fact that she was providing a service which would not be otherwise available and that the equipment that she used is sanitized and that theme was no testimony offered by Petitioner of any ill effects by her operation at the subject facility. Finally, Respondent feels that the Board should grant her a specialty license, although she has not applied for a license based on her feelings that it would not be granted. [Testimony of Respondent and Edmund Gabler, a Broward County resident and customer of Respondent for approximately two (2) years.]
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent be placed on probation for a period of one (1) year, during which time she must comply with all provisions of Chapter 477, Florida Statutes, and rules promulgated thereunder, specifically including the proviso that she not practice cosmetology in an unlicensed location. RECOMMENDED this 11th day of August, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1982.
The Issue The issue is whether Respondent discriminated against Petitioner based on her national origin.
Findings Of Fact Respondent is a subsidiary of Ratner Companies. Respondent operates a chain of salons, including the Cobblestone Hair Cuttery Salon (Cobblestone) in St. Augustine, Florida, and the Town Center Hair Cuttery Salon (Town Center) in Palm Coast, Florida. Petitioner was born in Buenos Aires, Argentina, of Hispanic origin. She speaks Spanish as her first language and English as her second language. Petitioner has extensive experience as a hairdresser. She was licensed in Maryland in 1975 and in Florida in 1989. Petitioner has owned her own salons in Maryland and Florida. In the fall of 2007, Francesca Souza, Respondent's salon leader at Town Center interviewed Petitioner for a position as a hair stylist. Ms. Souza was impressed with Petitioner's experience as a stylist. Ms. Souza also believed that Petitioner's ability to speak Spanish would help improve service to the area's large population of Spanish-speaking clients. Because Ms. Souza did not have a position available at the time, she referred Petitioner to Cobblestone. The salon leader at Cobblestone hired Petitioner as a hair stylist. At Cobblestone, Petitioner had problems following Respondent's Fair and Equal Treatment Policies. The problems were based on allegations that Petitioner was taking customers out-of-turn, doing services that customers did not want, and being confrontational in the shop in front of clients. After Respondent was coached and counseled about not making clients or associates uncomfortable, Petitioner's ability to get along with other stylists improved. There were never any issues at Cobblestone with Petitioner’s speaking Spanish. In April or May of 2008, Petitioner transferred to Town Center because it was closer to her home. For approximately two months, Petitioner experienced no problems working at Town Center. Town Center was a multi-cultural salon. Ms. Souza spoke several languages in addition to English, including Spanish and Portuguese. Other bi-lingual stylists included the following: (a) Natalie, who was from Thailand and spoke Chinese and Cambodian; (b) Andrea, who was from Jamaica and spoke French; and (c) Maria, who was from Puerto Rico and spoke Spanish. Other stylists, who spoke only English, included the following: Courtney; Jessica; Monica; Jasmine; Stacy; Christine; Melissa; Eugenia; and Michael Ann. From the beginning, Petitioner believed that these stylists formed a clique that attempted to exclude other stylists. Respondent did not have a policy prohibiting stylists from speaking a foreign language to each other or to customers in the salon. Bi-lingual stylists usually spoke to their customers according to their national origin when necessary to make the customers feel comfortable. Initially, Petitioner sometimes spoke Spanish to Francesca and Maria. Some of the stylists in the "clique" complained that Francesca and Petitioner should speak English to each other in the salon because they were in the United States. Francesca then informed Petitioner that they should speak English to each other. Francesca explained to Petitioner that some of the stylists might feel as if Francesca favored Petitioner and that speaking English would make everyone feel more included. In June 2008, Petitioner was working at Town Center when two sisters of Hispanic origin came in for service. One sister was treating the other for a special occasion. Diane was due to take the next walk-in client. Therefore, Diane asked the sister being served to sit in her chair. After the sisters told Diane what service they wanted, Stacy made a comment in English to Diane that she was not competent to do the service. Apparently, one or both of the sisters understood Stacy's comment. The sister receiving the service became upset, stating, in Spanish, that she did not want Diane to do her hair. At that point, Petitioner intervened. Speaking in Spanish to the sisters, Petitioner assured them that Diane was competent to perform the service and that Stacy had made a childish comment. The incident grew worse when Petitioner overhead Courtney complaining to the "clique" about Petitioner’s speaking Spanish to Diane's customers. Petitioner also understood that members of the "clique" were being critical of her and the sisters. As the "clique" talked among themselves, the sisters became even more upset. Apparently the sisters and Petitioner believed that the other stylists were making fun of the sisters and Spanish-speaking people in general. Eventually, Petitioner called Ms. Souza, who was on vacation. Courtney also spoke to Ms. Souza. Courtney yelled that Petitioner should be fired, that she was a troublemaker, that she should not be speaking Spanish, and that she had caused the whole problem. Ms. Souza talked to the sisters on the phone. She made arrangements to compensate them for the incident. Ms. Souza later talked to Petitioner, asking whether she had caused the problem. Petitioner responded that the "clique" was jealous of her and were discriminating against her because she spoke Spanish. After the incident with the sisters, personality conflicts developed between the "clique" and Petitioner. They could not get along and did not trust each other. When Petitioner began working at Town Center, the salon had an honor system in place to determine which stylist would get the next walk-in client. Petitioner took advantage of the honor system by taking clients out-of-turn. Ms. Souza then instituted a walk-in list that the stylists signed when they came to work. As they took clients, they were supposed to scratch their name off the top of the list and write it at the bottom. Petitioner also took advantage of the walk-in list by not scratching her name off the top of the list after taking a client. The other stylists would then scratch off Petitioner's name or white it out and write it at the bottom. When this happened, Petitioner and the other stylists would bicker with each other. Petitioner never admitted she had done anything wrong and always complained that the other stylists were picking on her. The greater weight of the evidence indicates that the "clique" resented Petitioner’s speaking Spanish to her clients when it was not necessary because they assumed that Petitioner was talking about them. There is no persuasive evidence that the "clique" resented Petitioner’s speaking Spanish because she was from Argentina of Hispanic origin. To the contrary, a member of the "clique" occasionally requested Petitioner's assistance in communicating with a Spanish-speaking client. The evidence also shows that Petitioner was very aggressive in soliciting clients and selling retail products. Her list of clients that would request her services grew quickly. She often had the highest sales per week and/or month of retail products. The members of the "clique" may have been jealous of Petitioner's rapid success but they also resented the methods she used to increase her commissions as set forth in Ms. Souza's testimony and the documentation memorializing her counseling and coaching conversations with Petitioner. On August 6, 2008, Ms. Souza had a conversation with Petitioner outside the salon. During the conversation, Ms. Souza informed Petitioner that she was creating an environment in the salon that was uncomfortable to stylists and others in the following ways: (a) arguing with Jasmine about a client; (b) bickering on the floor; and (c) intervening with Stacy's recommendations to a client by making derogatory remarks about the quality of Stacy's work. At the conclusion of this conversation, Petitioner agreed to stop that kind of behavior. On August 8, 2008, Ms. Souza had a conversation with Petitioner regarding the two technical complaints. First, a client was unhappy with an "updo" done by Petitioner. Additionally, Petitioner tried to charge the client $40 for the service after Monica had quoted the client a $25 price. Ms. Souza had to redo the hair style and charged the client $25. Second, a client came in with a very uneven hair cut. Petitioner refused to cut the client's hair the way she wanted it because it would, in Petitioner's opinion, look bad. On September 6, 2009, Ms. Souza wrote a letter to Stephanie Melstein, Respondent's district leader. The letter reviews the problems Ms. Souza was having with Petitioner as follows: (a) taking clients out-of-turn, then getting defensive when confronted by another stylist; (b) leaving the salon without cleaning up at closing; (c) not crossing her name off the walk-in list so that she remains at the top of the list; (d) talking to clients sitting in another stylist's chair, frequently saying things contrary to what the stylist and client have discussed; (e) walking to the front of the salon and striking up a conversation with a walk-in client, then putting the client's name in the computer as a "request" for herself, even though the client did not care who performed the service; (f) making derogatory comments about people's sexual orientation and/or religion; (g) walking away and pretending to be busy when presented with an ethnic client that she does not want to serve; and (h) claiming that the whole salon is out to get her because of jealousy. In the September 6, 2008, letter, Ms. Souza requested that Ms. Melstein let her know how much information is needed to terminate a person without repercussion to Ratner Companies. Ms. Souza did not want to be seen as a weak salon leader, but she also did not want to have the salon involved in a lawsuit by a disgruntled employee. On September 12, 2008, Ms. Souza gave Petitioner a verbal warning regarding the following: (a) not taking clients in order according to the walk-in policy by skipping over other names; (b) interfering with other stylists; and (c) leaving early without management approval. Ms. Souza advised Petitioner that her actions were creating an uncomfortable environment for clients and co-workers. Ms. Souza also stated that any future violations in these same areas will result in termination. Petitioner hand delivered a letter dated September 16, 2008, to Ms. Souza and Ms. Melstein at a monthly salon meeting. According to the letter, Petitioner had been picked on by the "clique" since her first week at work. In the September 16, 2008, letter, Petitioner's complaints included, but were not limited to, the following: (a) someone was scratching out Natalie's and Petitioner's names on the walk-in list when they had a request customer as if they had taken a walk-in client; (b) someone was telling Natalie's and Petitioner's request customers that they were scheduled to work on days they were off; (c) Ms. Souza warned Petitioner about Lynn and Melissa and advised Petitioner not to speak Spanish because the stylists would think Ms. Souza was favoring Petitioner; (d) Ms. Souza talked about some of the stylists behind their backs; (e) Michael Ann left work early one day without permission; (f) Monica was 45 minutes late one day, leaving a client waiting for her; (g) Lynn was 35 minutes late with no repercussions; (h) Michael Ann left the salon for an hour without clocking out, leaving a client waiting that Lynn had to service; (i) Lynn leaves the salon for coffee without clocking out; (j) the smokers take more breaks than non-smokers; (k) the "clique" discriminated against the two Spanish sisters and Petitioner; (l) Lynn falsely accused Petitioner of being a thief for hiding Lynn's lunch; (m) the "clique" members go to lunch then expect someone to check in the clients and have them wait until the "clique" members return; (n) Ms. Souza feels that Petitioner has a chip on her shoulder; (o) Petitioner cannot speak Spanish with her Spanish-speaking clients because the "clique" finds it offensive; (p) Monica refused to give Petitioner her paycheck, placing it on a high shelf; (q) Francesca falsely stated that Petitioner had four complaints on redo haircuts; (r) Lynn and the "clique" mistreated a person in training at the salon; (s) someone put a bag of bleach on Petitioner's lunch; (t) the "clique" is jealous that Petitioner has so many requests in such a short time; (u) someone erased some of Petitioner's chemical service appointments and put them under the name of other hairstylists; (v) someone scratched over Petitioner's initials on the chore list and placed another name there as if Petitioner did not do her chore, then told Ms. Souza that Petitioner left early without doing her chore; (w) Michael Ann wanted to smoke so she gave her walk-in to Jessica even though Petitioner was next in line; (x) Michael Ann leaves work early when Monica is on duty as assistant salon leader with no repercussion; (y) Stacy refused to cut the hair of a child on the walk-in list, asking Petitioner to cut the child's hair instead; and (z) the "clique" members get together to gossip about Petitioner getting a written warning report. After receiving the September 16, 2008, letter from Petitioner, Ms. Melstein went to the Town Center to investigate Petitioner's allegations. Ms. Melstein spoke to the Town Center staff, including Petitioner and Ms. Souza. Ms. Melstein reminded Petitioner and Ms. Souza that Respondent did not have a policy prohibiting speaking a foreign language in a salon. Ms. Melstein also reminded them that Respondent did have a policy prohibiting any conduct that created an uncomfortable environment for clients and staff. Finally, Ms. Melstein made it clear that if a stylist needed to speak a foreign language to make a client feel comfortable, the stylists certainly could do so. During her investigation, Ms. Melstein had conversation with all of the staff regarding the allegations in Petitioner's September 16, 2008, letter. Ms. Melstein concluded that there were personality conflicts among the stylists but that no one was being discriminated against. On or about October 1, 2008, Ms. Souza had a conversation with Petitioner regarding her failure to attend a mandatory salon meeting. Ms. Souza also instructed Petitioner to stop soliciting clients for a mortgage business by getting and/or giving out cell phone numbers and e-mail addresses and by giving mortgage company business cards to the clients. On October 18, 2008, Ms. Souza counseled Petitioner about taking clients out of turn. She also advised Petitioner about the importance of placing the names of clients in the computer. On or about November 3, 2008, Petitioner improperly charged a client for a foil service. At that time, the stylists were supposed to charge $3 per foil up to six foils and $45 for a partial foil of seven to twelve foils. Petitioner charged the client $3 per foil for eight foils, thereby undercharging the client $21. This is a terminable offense under Respondent's Fair and Equal Treatment Policy. The greater weight of the evidence indicates that Petitioner did not have permission to charge the client $3 per foil for eight foils. On November 5, 2008, Ms. Sousa terminated Petitioner's employment at Town Center. According to the conference report form, Petitioner was terminated for the following reasons: (a) knowingly failing to charge clients properly by under- ringing sales and quoting incorrect prices; (b) creating an uncomfortable environment for clients and staff; (c) mistreating other associates by selling products to clients while other stylists are servicing those clients; (d) discrediting stylists with derogatory comments statement to clients; and (e) trying to coax clients into her chair while the clients were waiting for another stylist. The transaction detail report confirms that on November 3, 2008, Petitioner improperly charged for a foil service. Additionally, the transaction detail report reflects twelve instances of improper charging (over-ringing and/or under-ringing) by Petitioner prior to November 3, 2008. After being terminated, Petitioner complained to Naté Venkatesen, the human resources director for Ratner Companies. Petitioner stated that other associates in the salon also were improperly charging clients. As a result, Respondent performed an investigation and subsequently initiated coaching and counseling for all associates at the salon. There is no evidence that the stylists involved in the coaching had the same type of disciplinary history or problems following policies as Petitioner. In a letter dated December 5, 2008, Ms. Venkatesan agreed to reinstate Petitioner to her original position at full pay. Ms. Venkatesan also told Petitioner she would receive full back-pay from November 5, 2008, until December 12, 2008. According to the letter, Petitioner would be entitled to all benefits, including the company-paid trip to Cancun in May 2009. Finally, the letter stated that Petitioner needed to respond to the letter by December 12, 2008, or Respondent would assume she was not interested in returning to work. Petitioner declined to accept Petitioner's offer of reinstatement. She did not want to start all over in building her clientele and sales at another salon. Respondent never told Petitioner she could not return to Town Center. However, Ms. Venkatesan told Petitioner she did not think it would be a good idea for Petitioner to return to Town Center. After she was terminated, Petitioner looked for work for about three and a half weeks before finding a job at the Paradise Day Spa. Petitioner worked at the Paradise Day Spa for eight months until September 2009, when that company went out of business. A short time later, Petitioner found a job in a barber shop where she continued to work at the time of the hearing. When Petitioner worked for Respondent, she accrued a week's paid vacation after working for one year. She earned an average of $400 per week in commissions from services and an additional $300 per week in tips and retail sales. Up through the date of termination, Petitioner earned $18,763.07 gross pay and $15,312 net pay from Respondent. Petitioner earned $959.64 in 2008, working for the Paradise Day Spa. She earned approximately $129 per week at the Paradise Day Spa. Petitioner earns approximately $200 per week at the barber shop. Her earnings there are based on a 50 percent commission for each service she performs.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of January, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2010. COPIES FURNISHED: David W. Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Bradley J. Hansen, Esquire Ratner Companies, LC 1577 Spring Hill Road, Suite 500 Vienna, Virginia 22182 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 at all times material hereto, the owner and operator of Beauty Salon Mayelin Unisex (Salon), a cosmetology salon located at 1442 Northeast 163rd Street in North Miami Beach, Florida. The Salon was first licensed by the Department on December 19, 1990. Respondent has never been licensed to practice cosmetology in the State of Florida. Her application for licensure is currently pending. Charles E. Frear is an inspector with the Department. On May 16, 1990, Frear went to 1442 Northeast 163rd Street with the intention of inspecting a licensed cosmetology salon operating under the name "Hair to Hair." When he arrived at the address, Frear noticed that the sign outside the establishment reflected that Beauty Salon Mayelin Unisex now occupied the premises. The Salon was open for business. Upon entering the Salon, Frear observed Respondent removing curlers from the hair of a customer who was seated in one of the chairs. 1/ Frear asked Respondent to show him her license to practice cosmetology in the State of Florida. Respondent responded that she did not have such a license yet, but that she was scheduled to take the cosmetology licensure examination later that month. After learning from Respondent that she was the owner of the Salon, Frear asked to see the Salon's license. Respondent thereupon advised Frear that the Salon had not been licensed by the Department. Although she told Frear otherwise, Respondent was aware at the time that a Department-issued cosmetology salon license was required to operate the Salon. Frear gave Respondent an application form to fill out to obtain such a salon license. Respondent subsequently filled out the application form and submitted the completed form to the Department. Thereafter, she received License No. CE 0053509 from the Department to operate the Salon.
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 $1,000 for having committed these violations. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of April, 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 24th day of April, 1991.
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 The central issue in this cause is whether or not Respondent is guilty of violating Section 477.029(1)(b), Florida Statutes which prohibits the operation of a cosmetology salon without a current license.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Before & After, Inc. d/b/a Design of Miami, is not licensed as a cosmetology salon. Respondent does business at 8200 Biscayne Boulevard, Miami, Florida. Bernard R. Gaeta is the secretary/treasurer of the Respondent corporation and was present at the business location on or about January 9, 1986. On or about January 9, 1986, Providence Padrick went to the business location (8200 Biscayne Boulevard, Miami, Florida) in response to an advertisement for cosmetology services. The purpose of the visit was to inspect the premises regarding the services claimed by the ad. An individual known as Jerry Schrank shared space with Respondent and had been responsible for the ad in question. When Ms. Padrick made the inspection she was attended by Mr. Gaeta who showed her the area used by Mr. Schrank. Additionally, Mr. Gaeta furnished Ms. Padrick with a brochure which outlined the services offered by Respondent. During her inspection of the Respondent's premises Ms. Padrick observed three or four shampoo bowls of the type normally used in cosmetology salons. As a result of her inspection of Respondent's business premises, Ms. Padrick interviewed Carmen Cannizzo to determine what services were being performed by Respondent's employees. Ms. Cannizzo is a licensed cosmetologist employed on a salaried basis by the Respondent. According to Ms. Cannizzo, Respondent sells hairpieces or wigs which are fitted and then attached to the customers' heads. Respondent uses two methods of wig or hairpiece attachment: weaving and taping. The weaving method requires the weaving of an anchor thread through the customer's natural hair which then holds the hairpiece in place once it is similarly secured to the woven thread. Regardless of the method of attachment, the customer's hair must be styled to blend in with the hairpiece. Customer preference and the amount of natural hair available determine which attachment method is used. While it is not part of the fee charged by Respondent, Ms. Cannizzo will also trim a customer's hair or shampoo it upon request. Ms. Cannizzo has been directed not to perform these services but does so to augment the tips she receives. Prior to the inspection of Respondent's business premises Ms. Padrick identified herself and her occupation to Mr. Gaeta. Ms. Padrick inspected the public areas of Respondent's business and, by invitation, an office area used by Mr. Gaeta.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Cosmetology enter a Final Order finding Respondent in violation of Section 477.029(1)(b), Florida Statutes and imposing an administrative fine in the amount of $500.00 DONE and RECOMMENDED this 11th day of March, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3689 Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted in finding of fact paragraph 1. Paragraph 2 is rejected. Whether Respondent has been licensed as a salon in the past is unclear. That Respondent operates as a cosmetology salon is a question of law addressed in the conclusions. Paragraph 3 is accepted. It should be noted, however, that all services described in the brochure may not be offered at the Respondent's business. Only those services found to be performed by Respondent are included in the findings of fact. Paragraph 4 is accepted. See paragraph 3 above. Paragraph 5 is accepted. Paragraph 6 is accepted. Respondent does not dispute that it shampoos hairpieces for its customers. Paragraph 7 is accepted. Paragraphs 8, 9, and 10 are accepted. Rulings on Respondent's proposed findings of fact: None submitted COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0760 Frank E. Freeman 2930 North East Second Court Miami, Florida 33137 Myrtle Aase, Executive Director Department of Professional Regulation Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32399-0760 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Lucien A. Jonet took the practical examination administered by the Board of Cosmetology for licensure on February 17, 1981. Jonet obtained a score of 71.5 percent on this examination in which 75 percent is a passing score. Jonet lost three points for failure to properly drape his model for Chemical Straightening, Bleaching and Shampooing. The model used by Jonet in the examination stated she moved, loosened and removed the drape at times because of the heat and her personal discomfort. When Jonet was present, he redraped the model; however, as required by the examination procedure, Jonet was not present when the model was examined. The Board's instructions do not advise the models or the examinees that the models should not touch their drapes or towels. The Board's confidential instructions to examiners provide that points be deducted for failure to properly drape the model. At least one of the examiners testified she would take points off for this performance criteria if the drape were loose or the towel off when she checked the model. Jonet's model had hair that was of minimal length, and Jonet stated her hair was so uneven that it could not be cut to a blended, even length. He gave the model a styled, uneven shag cut. The Board's confidential instructions to the examiners require that examinees' performances be graded on an even, blended haircut with even edges and necklines. Although the instructions to examinees advise that models should have hair of sufficient length that after an inch has been cut from the hair it may be curled, there are no specific instructions that they will be graded on a blended, even cut. The Board's only instructions to examinees on haircutting at the examination are as follows from the Hearing Officer's Exhibit 1: "We recommend a basic haircut. An extremely short style cut would interfere with the performance of molding and pin curl portion of your exam. You may use the hair cutting implements of your choice. Any hair falling on the floor must be cleaned up before grading. Are there any questions?" The examiners also stated that the examinees should report problems with their models' hair that would affect the examinees performances, and that when such problems existed they would not deduct points. However, the instructions to the examinees do not contain this caveat. Jonet lost eight points on haircutting: two points for gaps left behind his model's ears, two points twice for an uneven neckline, and two points for uneven blending of the hair. One of the examiners stated that the last portion of the curriculum for most Florida cosmetology schools is spent in simulation of the Board's examination, and that these schools are well versed in the specific criteria which the Board uses in assessing performance. Jonet had sought a reexamination but was denied because he had taken the first examination with 600 hours of evaluated credit, and the Board's rules require a person with only 600 hours of school who fails the examination to finish another 600 hours. The Board denied Jonet the opportunity to seek an added 600 hours of evaluated credit. Jonet has more than 40 years' experience in cosmetology, is a graduate of a European program, was licensed in Illinois prior to an examination being required, and held an Illinois license for 23 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Lucien A. Jonet be permitted to take the Board of Cosmetology's examination again, and that the instructions for the examination be amended to fairly advise examinees of the examination's actual requirements and instruct the models not to touch or interfere with their hair, drapes or towels. DONE and ORDERED this 14th day of January, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 14th day of January, 1982. COPIES FURNISHED: Mr. Lucien A. Jonet 12500 Ulmerton Road, #16 Largo, Florida 33540 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
