94-006346 Board Of Cosmetology vs. Miriam Viera Status: Closed Recommended Order on Friday, July 12, 1996.

Summary: Petitioner did not practice cosmotology without a license when failed to pay full exam fee and take lst exam after graduation because not eligible for test due to fee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6346

)

MIRIAM VIERA, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of

Administrative Hearings by its duly designated Hearing Officer, Diane

Cleavinger, on Tuesday, March 19, 1996, in Pensacola, Florida.

APPEARANCES

For Petitioner: James E. Manning, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Thomas F. McGuire, Esquire

Northwest Florida Legal Services, Inc.

24 West Governmental Street

Pensacola, Florida 32501

STATEMENT OF 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.

PRELIMINARY STATEMENT

On June 30, 1994, Petitioner filed an Administrative Complaint charging the

Respondent, Miriam Viera with violating Section 477.029(1), Florida Statutes, by

violation of Section 477.0135(g), Florida Statutes. Specifically, the

Administrative Complaint alleged that Respondent practiced cosmetology without a

license by working as a cosmetologist after graduation from cosmetology school

and not meeting the requirements for the temporary graduate exemption for

licensure.

At the hearing, the Petitioner called two witnesses to testify and offered

five exhibits into evidence, including the deposition testimony of Stacy

Merchant. The Respondent testified in her own behalf and offered three exhibits

into evidence.

FINDINGS OF FACT

1. 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.

2. 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.

3. On January 29, 1994, Respondent graduated from RTI Technical Institute

in Pensacola by completing 1200 hours of training in cosmetology.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. During the course of the inspection, the salon was open to the public,

employees were present, and cosmetology services were being performed on

customers.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. No documents were posted at Respondent's workstation nor were any

documents produced for Inspector Raboteaux.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding action pursuant to Section

120.57(1), Florida Statutes.

27. In a license disciplinary action the burden is on the Petitioner to

establish the facts upon which its allegations of misconduct are based. The

Petitioner must prove its allegations by clear and convincing evidence. Ferris

v. Turlington, 570 So. 2d 292 (Fla. 1987).

28. Respondent was charged with violating Section 477.029(1)(a), Florida

Statutes. Section 477.029(1)(a), Florida Statutes, states:

(1) It shall be unlawful for any person to:

(a) Hold himself out as a cosmetologist or

specialist unless duly licensed or registered

as provided in this chapter.

29. Pursuant to Section 477.0135(1)(g), Florida Statutes (1993), an

exemption from the licensure requirements is permitted under certain

circumstances. The statute states the following in pertinent part:

(1) This chapter does not apply to the following

persons when practicing pursuant to their profes-

sional or occupational responsibilities and duties:

* * *

(g) Graduates of licensed cosmetology schools or

cosmetology programs offered in public school

systems, which schools or programs are certified

by the Department of Education, pending the result

of the first licensing examination for which such

graduates [are] eligible following graduation,

provided such graduates shall practice under the

supervision of a licensed cosmetologist in a

licensed cosmetology salon. [emphasis supplied]

30. Clearly, this exemption is temporary. However, it should be noted

that the statute does not require a graduate take the first examination after

graduation. The statute requires a graduate take the first available

examination for which the graduate is eligible. This is the only interpretation

of the relatively clear statutory language which gives meaning to all the words

used in defining the graduate exemption.

31. Section 477.019, Florida Statutes, sets forth the eligibility

requirements for taking the cosmetology examination. The statute states in

pertinent part:

(1) A person desiring to be a licensed as a

cosmetologist shall apply to the department

for licensure.

(2) An applicant shall be entitled to take

the licensure examination to practice cosmetology

if the applicant:

(a) Is at least 16 years of age or has received

a high school diploma;

(b) Pays the required application fee; and

(c) 1. . . . .

2. Has received a minimum of 1200 hours

of training. . . at one of the following:

a. A school of cosmetology licensed

pursuant to chapter 246.

b. A cosmetology program within the

public school system.

* * * *

32. In this case, Respondent graduated on January 29, 1994. She was

therefore qualified to engage in cosmetology as long as she took the first

available examination for which she was eligible.

33. On April 6, 1994, the date of inspection of Lee's Family Affair

Studio, Respondent admitted she cut, shampooed, and styled hair in return for

compensation, and had done so for over a month.

34. However, Respondent was never eligible for admission to the

cosmetology examination initially because her application was held up by RTI and

finally because she had not paid the required application/examination fee.

Because Respondent is poor she could not get together the additional $30.00

demanded by the Board and therefore could not take the examination scheduled on

April 21, 1994. Since Respondent was never eligible to take the cosmetology

examination she was entitled to graduation exemption status until she paid the

additional $30.00 fee after which she would be required to take the next

available examination or lose the graduation exemption. The evidence did not

establish that Respondent did not take the first available examination after she

was eligible for the same. Therefore, Respondent is not guilty of violating any

provisions of Chapter 477, Florida Statutes, and the Administrative Complaint

should be dismissed. 1/

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

[phone] SunCom 278-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of July, 1996.

ENDNOTE

1/ The Hearing Officer is cognizant of Rule 61G5-20.008, Florida Administrative

Code, which appears to require that the future applicant have applied for the

first examination after graduation. However, this Rule applies only to salon

owners and their employment practices. The Rule does not apply to Respondent.

More importantly, however, this Rule appears to go beyond the clear statutory

language of Section 477.0135(1)(g), Florida Statutes, to the extent that it can

be interpreted as adding requirements for the graduation exemption.

Specifically, that the graduate must apply for and be eligible for the first

examination after graduation. The statute simply contains no such requirement

especially where, as here, a good faith effort has been made to comply with the

law regarding cosmetology and only poverty has prevented eligibility.

APPENDIX

1. The facts contained in paragraphs 1, 2 and 3 of Respondent's Proposed

Findings of Fact are adopted.

2. The facts contained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and

14 of Respondent's Proposed Findings of Fact are subordinate.

3. The facts contained in paragraphs 1, 2, 4, 5, 6,7, 8, 9, 10, 11, 14,

16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of Petitioner's

Proposed Findings of Fact are adopted.

4. The facts contained in paragraphs 3, 12, 13 and 15 of Petitioner's

Proposed Findings of Fact are subordinate.

COPIES FURNISHED:

James E. Manning, Esquire

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regulation

Suite 60

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas F. McGuire, Esquire

Northwest Florida Legal Services, Inc.

24 West Governmental Street

Pensacola, Florida 32501

Lynda L. Goodgame, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dorothy Faircloth, Executive Director

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.