The Issue The issue in this case is whether any disciplinary action should be taken against Respondent for alleged non-compliance with the graduate exemption provision of Chapter 477, Florida Statutes, and the Rules pertaining to graduates of cosmetology schools as contained in Chapter 61G5, Florida Administrative Code.
Findings Of Fact Respondent, Miriam Viera, is of Hispanic origin. Her native language is Spanish. Ms. Viera and her children are the recipients of welfare in Escambia County. Specifically, Ms. Viera and her family receive money from Aid to Family with Dependent Children and food stamps. She has always wanted to be a cosmetologist and in 1994 was able to pursue her goal of becoming a licensed cosmetologist and also attempted to get off welfare. In order to become a licensed cosmetologist Ms. Viera was required to, (1) be 16 years of age, (2) graduate from an approved school of cosmetology, (3) have completed 1200 hours of training in cosmetology, (4) complete an application for licensure thereby applying to the Board of Cosmetology to sit for the cosmetology exam and, (5) pay the required licensure and examination fees. The application to the Board of Cosmetology required that Ms. Viera's 1200 hours of training be certified by the school where she took her training and that a certificate of completion of an approved HIV/AIDS training course accompany the application. Failure to meet any one of these requirements would cause Ms. Viera to be ineligible to take the cosmetology examination, as well as ineligible for licensure. On January 29, 1994, Respondent graduated from RTI Technical Institute in Pensacola by completing 1200 hours of training in cosmetology. RTI is a State approved cosmetology school. However, RTI does not offer an HIV awareness course. The course was offered at one of the local Pensacola hospitals. After graduation Respondent decided to take approximately two weeks off. On February 17, 1994, Respondent completed her training for HIV/AIDS awareness. During this time period, Respondent had also picked up an application to take the cosmetology examination and licensure from RTI. The form the school supplied to Ms. Viera did not contain the cover letter/instruction sheet for the application. As a consequence Ms. Viera was told that the application fee would be $75.00. On February 17, 1994, Respondent secured a $75.00 money order and presented a completed application to the office of Larry Bryant, the president of RTI Cosmetology School. The application was left with Mr. Bryant so that he could certify to the Board of Cosmetology, on behalf of RTI that Ms. Viera had completed 1200 hours of cosmetology training at the school. After Mr. Bryant completed the school's part of the application, he was to send the application and the money order on to the Board of Cosmetology. Respondent indicated on her application that she wanted to take the examination in Spanish. Such a request is authorized by the Board. There was no evidence that this request was fraudulent. The fee to take the examination in Spanish was an additional of $30.00. However, Respondent was unaware of the requirement for additional money because she had not received the applications's cover letter/instruction sheet with her application. Until Respondent paid the additional $30.00 she was not eligible to take the cosmetology examination. Likewise, the cosmetology examination was not available to Ms. Viera until the additional $30.00 application fee was paid. For unknown reasons over which Ms. Viera had no control, Mr. Bryant did not complete the school's part of the application until about March 2, 1994. Consequently, Ms. Viera's application was not mailed to the Board of Cosmetology until March 2, 1994. Ms. Viera had assumed that Mr. Bryant had completed and mailed her application within a couple days of her leaving it with him. She was unaware that Mr. Bryant had not done so. Again, Ms. Viera was not eligible to take the cosmetology examination until the certification from the school was accomplished and the application received by the Board. Likewise the cosmetology examination was not available to her until the application was completed by the school and received by the Board. In the meantime, around March 1, 1994, Respondent had begun practicing cosmetology at Lee's Family Affair Studio in Pensacola, Florida. Ms. Viera had been referred to the salon by the school. Ms. Viera needed to work because, being on welfare her funds were extremely short and she had to make up the money she had used to pay the $75.00 application fee. Normally, applicants who have met all the requirements for taking the cosmetology examination are admitted to take the examination scheduled approximately 10 to 15 days after the Board of Cosmetology has received and reviewed the application. The application of Respondent was received by the office of the Cosmetology Board on March 9, 1994. Based upon this date, the next examination was offered on April 21, 1994 had the entire examination fee of $105.00 been paid. Except for the fee, Respondent's application was complete in all respects as required by Rule 61G5-18.002, Florida Administrative Code. The Board sent a letter to Respondent dated March 15, 1994, advising her that her application was not complete because she did not pay the additional $30.00 fee for the Spanish version of the cosmetology examination and that she was not eligible to sit for any examination until the fee had been paid. The letter was received by Respondent around April 6, 1994. The Board's deficiency letter was the first indication Respondent had that she owed the Board more money and that she was not eligible for the examination scheduled for April 21, 1994 and that the examination was not available to the Respondent. Lutrel Raboteaux, an inspector for the Department of Business and Professional Regulation, conducted a routine inspection of Lee's Family Affair Studio, on April 6, 1994. During the course of the inspection, the salon was open to the public, employees were present, and cosmetology services were being performed on customers. Inspector Raboteaux discovered that the Respondent was an employee of the salon, and asked the salon owner to see her license. Respondent was not initially at the salon when Mr. Raboteaux began his inspection. She arrived shortly thereafter. Respondent admitted to Inspector Raboteaux that she was employed by the salon, had been working there since around the first week of March and had charged about $20.00 for a haircut. Respondent further admitted that she had sent in her application to sit for the next available examination sometime in early March, 1994, but did not have a license. Mr. Raboteaux conferred with the manager of the salon, Daniel Lee, as to the location of Respondent's license, if any. Mr. Lee informed Inspector Raboteaux that Respondent was working under the graduate exemption from cosmetology licensure. Mr. Raboteaux asked to see documentation which would prove that the Respondent was a cosmetology school graduate i.e., the application for licensure, copy of the money order or check to pay for the exam, and a copy of the receipt indicating payment that the Board of Cosmetology sends to the graduate. No documents were posted at Respondent's workstation nor were any documents produced for Inspector Raboteaux. Inspector Raboteaux completed his inspection of the salon, and noted on the salon's inspection report that Respondent's graduate exemption was subject to further investigation. Later, Inspector Raboteaux contacted the Board of Cosmetology in Tallahassee and spoke with Ms. Stacy Merchant, and employee of the Board whose duties for the Board include processing and determining eligibility of cosmetology school graduates to sit for the cosmetology exam. Ms. Merchant informed Inspector Raboteaux that the Respondent was not eligible for the graduate exemption. Ms. Merchant based her conclusion on her understanding of Chapter 477 and the Rules promulgated thereunder. Based on Ms. Merchant's representation, Inspector Raboteaux completed a Uniform Citation and served it on the Respondent by United States Mail -- Restricted Delivery. The Uniform Citation served on the Respondent indicated she was charged with practicing without a license for which the Board's fine was $500.00. Because Ms. Viera was a welfare recipient she did not have the money to pay the additional $30.00 fee, let alone a $500.00 fine which she disputed. As a consequence, Ms. Viera could not take the April 21, 1994 cosmetology examination.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Respondent be found not guilty of violating Section 477.029(1)(a), Florida Statutes (1993) through a violation of Section 477.0135(g), Florida Statutes (1993) and the Administrative Complaint be dismissed. DONE and ENTERED this 12th day of July, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1996.
Findings Of Fact Petitioner, Bruce E. Jarman, graduated from the cosmetology program of Orlando Vocational-Technical Center in December 1992. The school is an institution accredited by the Southern Association of Colleges and Schools. Mr. Jarman's grades were primarily A's in both practical competency and theory, with a few B's and two C's. Mr. Jarman sat for the January 21, 1993 cosmetology licensure examination and passed two of the three required parts. He did not pass the written clinical part, which required a score of 75. Mr. Jarman's score was initially 71; after his challenge, he was given credit for one additional item and his total scaled score was amended to 72. At the hearing Mr. Jarman narrowed his challenge to four written questions, #2, #41, #44 and #59. He also presented testimony and argument regarding the scoring and the over-all validity of the examination questions. Question #2 concerned the specific point at which a cosmetologist must commence timing for the processing of semi-permanent color. The process timing must commence after completing application of the color, since hair length, porous quality and other individual properties affect the time required for application. The textbook does not specifically furnish the right answer to the question; instead, it references the need to follow the product manufacturer's directions. The correct answer is found in those directions and in the understanding that if timing is commenced prior to the completion of application, the processing time might not be long enough. Mr. Jarman answered the question incorrectly. Question #41 concerned the qualities of over-processed curls. Frizzy hair is distinct from wavy hair. Frizzy hair is straight and very dry-looking due to being damaged. It has no waves when it is dry, and narrow waves when wet, as depicted in the textbook. Mr. Jarman chose the wrong answer. Question #44 concerned the action to be taken by a cosmetologist who is in the process of bleaching a client's hair when the client exclaims that he likes the color he sees prior to the completion of processing. The proper answer requires an understanding of procedures for lightening hair. Those procedures, including the need to conduct a series of strand tests, are described in the textbook. Mr. Jarman's answer was incorrect as he mistakenly concentrated on the preliminary strand test. Question #59 concerned the disadvantage of foil frosting versus cap frosting. The cap technique involves pulling clean strands of hair through a perforated cap with a hook. The foil technique requires taking alternating strands from a subsection and wrapping those strands individually in a foil packet. Foil frosting allows the better placement of streaks; it generally is preferred for sensitive scalp and for longer hair. However, the foil technique takes about twice as long as the cap technique. Although the textbook does not specifically state the relative merits of one technique over another, anyone who has performed the two techniques should recognize the proper answer. Mr. Jarman concentrated on the effect of chemicals on the scalp and selected the wrong answer. Each question provided four possible multiple choice answers. Selecting the proper answer required a process of elimination and a choice of the "best" answer. The questions were not ambiguous. Nor, as suggested by Mr. Jarman, did they require experience beyond the "entry-level". As part of their program of instruction, cosmetology students are given practical experience in the techniques to be tested. The examination taken by Mr. Jarman and his colleague, Mr. Sparrow, was a new examination and the pass rate was substantially lower than for prior examinations. This fact itself does not invalidate the examination. It was devised by a national professional testing firm; it was validated statistically through a mathematical process and was validated for content through a process which relies on the use of anchor items that have appeared in other examinations. The written clinical portion of the examination was designed to take the place of a practical examination requiring the use of live models. The clinical portion requires candidates to apply theory and judgement learned in their practicing laboratory in school. That is why the answers are not all found verbatim in the textbooks. In the credible opinions of the Board's several experts, including a psychometrician and an educator/practitioner with almost forty years' cosmetology experience, the January 1993 examination was valid and proper. The process of achieving scaled scores was also valid and proper.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the petition of Bruce E. Jarman, challenging his cosmetology examination score be denied. DONE AND RECOMMENDED this 14th day of December, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 December, 1993. COPIES FURNISHED: Vytas J. Urba Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bruce E. Jarman 1133 38th Street Orlando, Florida 32805 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Suzanne Lee Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent should be sanctioned for providing services as a cosmetologist without holding an appropriate license as required by Subsection 477.0265(1)(a), Florida Statutes (2005).
Findings Of Fact Vega is a native of Puerto Rico and has been a hair stylist since 1984. She was employed at the Beauty Gallery and Spa Salon (the "Salon") as a shampoo girl and receptionist at all times relevant to this proceeding. English is a second language to Vega, and she does not speak, read, or write the language well. At the final hearing in this matter, Vega testified through an interpreter or translator, Carmen Rodriquez. DBPR is the state agency responsible for, inter alia, the licensure of cosmetologists and cosmetology establishments in Florida. Daniel Hogan, JD, LLM, is a regional program administrator for DBPR, a position he has held for three years. He received training from his employer in order to perform inspections of cosmetology businesses and barbershops as part of his duties. He is responsible for the Orlando office and supervises the inspections of cosmetology and barber establishments conducted by that office. The Orlando office conducts about 3,500 such inspections each year, of which Hogan has involvement in approximately 500. On or about March 29, 2005, Hogan conducted a routine annual inspection of the Salon. During the inspection, Hogan noted two individuals working at the Salon: Vega and a Mr. Torres. Torres was sitting at the front part of the Salon. Hogan identified himself to Vega and Torres as an inspector for DBPR. Neither Vega nor Torres could produce a cosmetology license for review by Hogan when asked. Hogan saw Vega at a workstation, actively engaged in cutting a customer's hair. His efforts to question Vega concerning this matter were thwarted by Vega's inability to converse in English. Vega did produce for Hogan a cosmetology license, which had been issued in Puerto Rico. She also produced a copy of a letter from DBPR wherein Vega's application for licensure had been denied. The purpose of showing those documents to Hogan was to show him that she was a legal resident. She had initially perceived him as an immigration officer. During the course of Hogan's inspection, Ms. Matos, owner of the Salon, appeared. She confirmed to Hogan that Vega had been employed at the Salon for about twelve months. Matos did not appear at the final hearing. There was no testimony by the owner as to Vega's employment position at the Salon. Upon completion of his inspection, Hogan issued an inspection report and a Citation against Vega for practicing without a license. He gave Vega a copy of the citation, which Vega signed in his presence. The citation states that Vega was practicing cosmetology without a license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation upholding the fine assessed in the Administrative Complaint. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of September, 2006. COPIES FURNISHED: Raquel Santiago Vega 523 Delido Way Kissimmee, Florida 34758 Drew F. Winters, Esquire Matt Yeager Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robyn Barineau, Executive Director Board of Cosmetology Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Respondents' alleged violation of Sections 477.02(4), 477.15(8) & 477.27(1), Florida Statutes.
Findings Of Fact Respondent Corporation operates the Get Your Head Together Cosmetology Salon at 687 N.E. 79 Street, Miami, Florida, under Certificate of Registration Number 15219 issued by Petitioner on February 15, 1971. On April 7, 1975, Petitioner's Inspector visited Respondent's place of business and found two cosmetologists, Sergio Ruiz Calderon and Silvia Gonzalez, engaging in the practice of cosmetology without the presence of a master cosmetologist. Calderon was drying a customer's hair with a blower and Gonzalez was providing another customer with frosting and a hair cut. (Testimony of Patrick). Respondent's President, Geno Tranchida, testified that his brother, a master cosmetologist, was due to arrive at the salon at noon on April 7, and that he therefore left for lunch about 11:45 after instructing his employees not to perform any work while he was gone. The employees disregarded these orders and when Geno Tranchida returned his brother called and informed him that he was ill. (Testimony of Geno Tranchida).
Recommendation That Respondent be issued a written reprimand for the violation of Section 477.02(4), Florida Statutes DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald C. LaFace, Esquire P.O. Box 1752 Tallahassee, Florida Geno and Peter Tranchida c/o Get Your Head Together, Inc. 687 N.E. 79 Street Miami, Florida
The Issue Respondent's alleged violation of Sections 477.02(6), 477.15(8), 477.27(1) & (2), Florida Statutes.
Findings Of Fact Clodoaldo and Olimpia Linares operate the Alinas Beauty Salon, a partnership, at 754 East 1st Avenue, Hialeah, Florida under Certificate of Registration to operate a cosmetology salon number 20143 issued by Petitioner on August 21, 1974. Petitioner's Inspector Miller, accompanied by Inspector Padrick, visited Respondent's salon on October 31 1975, to investigate a report that Respondent had an operator at their shop who was practicing cosmetology without a license. At that time the inspectors discovered Carmen Salvador giving a manicure to a patron. Salvador stated to the inspectors that although she did not have a Florida license to practice cosmetology, she was not employed in the salon. (Testimony of Miller and Padrick) Respondent Olimpia Linares testified that Salvador was her cousin and that while she was waiting for Linares to leave the salon for the evening she filed a patron's nails while Linares was working on the patron's hair. The patron was a friend of Salvador. (Testimony of Linares)
Recommendation That Respondent, Olimpia Linares, be issued a written reprimand for violation of Section 477.27(2), Florida Statutes. DONE and ENTERED this 28th day of July, 1976, in Tallahassee, Florida. COPIES FURNISHED: Ronald C. LaFace, Esquire P.O. Box 1752 Tallahassee, Florida Clodoaldo and Olimpia Linares c/o Alinas Beauty Salon THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 754 East 1 Avenue Hialeah, Florida
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
