97-003100 Board Of Cosmetology vs. Timothy C. Troutman
 Status: Closed
Recommended Order on Tuesday, April 21, 1998.


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Summary: Inappropriate touching of two students by instructor constituted misconduct in practice of cosmetology.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16BOARD OF COSMETOLOGY, )

20)

21Petitioner, )

23)

24vs. ) Case No. 97-3100

29)

30TIMOTHY C. TROUTMAN, )

34)

35Respondent. )

37________________________________)

38RECOMMENDED ORDER

40Pursuant to notice, a formal hearing was held in this case

51on February 10, 1998, in Jacksonville, Florida, before Donald R.

61Alexander, the assigned Administrative Law Judge of the Division

70of Administrative Hearings.

73APPEARANCES

74For Petitioner: Elizabeth C. Masters, Esquire

807960 Arlington Expressway

83Suite 230

85Jacksonville, Florida 32211

88For Respondent: Michael R. Yokan, Esquire

94204 Washington Street

97Jacksonville, Florida 32202

100STATEMENT OF THE ISSUE

104The issue is whether Respondent's license as a cosmotologist

113should be disciplined for the reasons cited in the Administrative

123Complaint filed on June 20, 1997.

129PRELIMINARY STATEMENT

131On June 27, 1997, Petitioner, Department of Business and

140Professional Regulation, Board of Cosmetology, issued an

147Administrative Complaint alleging that Respondent, Timothy C.

154Troutman, a licensed cosmetologist, was guilty of misconduct in

163the practice or instruction of cosmetology in violation of

172Section 477.028(1)(b), Florida Statutes. The complaint further

179alleged that by violating the foregoing statute, Respondent also

188violated Section 477.029, Florida Statutes, which makes it

196unlawful to violate any provision within Section 477.028, Florida

205Statutes. The primary underlying allegations are that Respondent

213improperly touched three women while employed as an instructor at

223a cosmetology school in 1995 and 1996. Respondent denied the

233allegations and requested a formal hearing under Section 120.569,

242Florida Statutes, to contest the charges.

248The matter was referred by Petitioner to the Division of

258Administrative Hearings on July 8, 1997, with a request that an

269Administrative Law Judge be assigned to conduct a formal hearing.

279By Notice of Hearing dated July 31, 1997, a final hearing was

291scheduled on November 10, 1997, in Jacksonville, Florida. At the

301parties' request, the matter was rescheduled to February 10,

3101998, at the same location.

315At final hearing, Petitioner presented the testimony of Neva

324Alexandra Choulat, a former student; Cynthia Summers, a former

333student; Donald H. Jacques, a deputy sheriff with the

342Jacksonville Sheriff's Office; Joanna Flowers, a former student;

350Norah Homan Maszey, a former student; and Myra Jowers, a licensed

361cosmetologist. Also, it offered Petitioner's Exhibits 1-6. All

369exhibits were received in evidence. Respondent testified on his

378own behalf and offered the testimony of Carol Engells, an agency

389environmental health specialist; and his father, Howard Troutman,

397a licensed cosmotologist. Also, he offered Respondent's Exhibits

4052, 3, and 5-11. All exhibits were received in evidence.

415Finally, the undersigned took official recognition of Chapters

423455 and 477, Florida Statutes, and Chapter 61G5, Florida

432Administrative Code.

434The transcript of hearing was filed on March 17, 1998.

444Proposed Findings of Fact and Conclusions of Law were due on

455March 31, 1998, and they were timely filed by Petitioner. They

466have been considered by the undersigned in the preparation of

476this Recommended Order.

479FINDINGS OF FACT

482Based upon all of the evidence, the following findings of

492fact are determined:

495A. Background

4971. This proceeding involves a complaint that Respondent,

505Timothy Coutman, a licensed cosmetologist since 1981, engaged

513in "misconduct" while employed as an instructor at Riverside

522Hairstyling Academy (RHA) in Jacksonville, Florida. When the

530events herein occurred, Respondent was licensed as a certified

539cosmetologist having been issued license number CL 0134716 by

548Petitioner, Department of Business and Professional Regulation,

555Board of Cosmetology (Board).

5592. RHA is certified as a cosmetology school and has several

570campuses, including one on Beach Boulevard in Jacksonville,

578Florida. The school is owned by Respondent's father, Howard

587Troutman.

5883. Respondent was employed as a floor instructor at RHA.

598In this capacity, he supervised the activities of approximately

607twenty students at any given time, as they performed cosmetology

617services. The underlying charges in this matter are that: (a)

627Respondent improperly touched Neva A. Choulat, a former student;

636(b) he made threatening telephone calls to, and improperly

645touched, Joanna Flowers, a customer; and (c) he made sexually

655explicit remarks to, and inappropriately touched, Nora Maszey, a

664former student. As to Maszey, it is also alleged that Respondent

675threatened to "affect her school credits if she made trouble for

686him." Each set of charges will be discussed separately below.

696B. Count I

6994. In this count, it is alleged that, while giving a facial

711to Choulat, Respondent "proceeded to massage her bare breasts

720underneath [her] smock," "directly touched her nipples and rubbed

729her breasts," and "rubbed his hands up and down her sides to

741include the sides of her breasts."

7475. On December 5, 1995, when she was sixteen years of age,

759Choulat enrolled at RHA in order to pursue her goal of completing

771RHA's 1200-hour cosmetology course and ultimately obtaining a

779cosmetology license. At that time, she was a full-time high

789student and attended RHA as a night/weekend student in addition

799to her high school studies.

8046. Prior to August 24, 1996, Choulat had no problems of any

816kind with Respondent, and they had a normal student-teacher

825relationship.

8267. On August 24, 1996, Choulat was performing cosmetology

835services on four clients. Throughout the morning, Respondent

843repeatedly asked Choulat if she wanted him to give her a facial.

855She agreed, and after lunch, Respondent took Choulat to a small

866room that was used for the giving of facials.

8758. The room had no windows, and the door was closed during

887the giving of the facial. Respondent instructed Choulat to

896remove her shirt and bra and don a smock. He left the room while

910she did so. When he returned to the room, he closed the door and

924told Choulat to lie down and close her eyes.

9339. Respondent then took Choulat's arms out of the smock.

943At that point, she had nothing covering her torso, except for a

955large towel that Respondent had placed over her chest.

964Respondent started performing the facial, but he quickly moved

973beyond the acceptable scope of a facial.

98010. Without asking Choulat's permission, Respondent rubbed

987his hand down her lower back, touched her breasts and nipples,

998and rubbed his hands down her sides, touching the sides of her

1010breasts.

101111. At first, Choulat was too frightened to cry out or

1022protest. However, Respondent asked her if she wanted him to

1032stop, to which she replied "yes." Respondent then left the room,

1043and Choulat put her clothes back on.

105012. After dressing, Choulat went to the beginner's room and

1060began crying. She then told another student, Cynthia Summers,

1069that Respondent had touched her breasts in the facial room.

1079Summers advised Choulat to tell her mother.

108613. Later that afternoon, Summers confronted Respondent and

1094told him that she was aware of his actions with Choulat and that

1107this was a stupid thing to do with a seventeen-year-old student.

1118In response, Respondent stated that "it was stupid of me." When

1129Summers asked Respondent what would happen if Choulat went to the

1140police or his father, Respondent replied "I hope she don't."

115014. At approximately 2:30 p.m. the same day, Choulat filed

1160a complaint with the Jacksonville Sheriff's Office regarding

1168Respondent's conduct. Choulat reported that Respondent had

1175touched her breasts without her permission. She followed up by

1185telling her parents, filing a complaint with the Office of the

1196State Attorney, and reporting the incident to Respondent's

1204father.

120515. Choulat disenrolled from RHA a few weeks later, despite

1215having invested more than $2,400.00 in tuition payments. She

1225stopped her course of studies and is now employed in another

1236field.

123716. Although Choulat has a pending civil action against

1246Respondent and RHA, her testimony is found to be credible. This

1257finding is based on Choulat's consistent account of the incident

1267over time, her actions immediately after the incident occurred,

1276the corroborating testimony of Summers, an impartial witness, and

1285the admissions made by Respondent to Summers immediately after

1294the incident. Respondent's contentions that Choulat had

1301initiated the subject of getting a facial, that the smock was

1312never removed, that nothing improper occurred during the fifteen-

1321minute demonstration, and that he made no incriminating

1329admissions to witness Summers have been rejected.

133617. The evidence established that while a facial may extend

1346below the neck, at no point does it include massaging of breasts

1358and nipples, nor should it extend below the upper portion of the

1370shoulder blades in the back, or below the armpit level on the

1382front of the body. Further, it is not an acceptable teaching

1393practice to give a private facial to a student outside of a

1405classroom setting. Therefore, Respondent's conduct with student

1412Choulat equates to misconduct in the practice of cosmetology.

1421C. Count II

142418. The second count alleges that while giving a hair cut

1435to Joanna Flowers in 1995, Respondent "placed her long hair over

1446her breasts" and "stroked her breast under the pretext of

1456stroking her hair." The complaint also alleges that he "rubbed

1466his penis up against Ms. Flowers' hands and/or arms while they

1477were resting on the arms of the chair," and that he thereafter

1489telephoned Flowers "numerous times at her home" and she "felt

1499threatened by [the calls]."

150319. Flowers, who is now twenty-two years of age,

1512occasionally went to RHA in 1992 or 1993 for hair cuts. RHA

1524records show that she went only twice. On both occasions, a

1535receptionist would assign a staff member to cut her hair. On her

1547second visit in the fall of 1993, Respondent was assigned by the

1559receptionist to cut her hair.

156420. Flowers had long hair which went over her upper chest

1575and fell to a length that was below her breasts. Following the

1587initial haircut, Respondent checked the cut to determine whether

1596it was even.

159921. While checking the length of the cut, Respondent pulled

1609the hair down in front of Flowers and his hand may have

1621accidentally touched her breasts. However, if such touching

1629occurred, it was not intentional, and it was not inappropriate to

1640check the length of the cut in this manner. At the same time,

1653Respondent's "crotch area [was] at the same level that the arm

1664rest is on the chair," and while leaning over the chair,

1675Respondent may have accidentally come into contact with Flowers'

1684arm. Again, however, if a touching occurred, it was

1693unintentional. Finally, there was no testimony to support the

1702allegation that Respondent called Flowers on numerous occasions

1710at home in a threatening fashion.

1716D. Count III

171922. The last count alleges that "on numerous occasions"

1728between 1995 and 1996, Respondent "touched the chest and buttocks

1738[of Norah Homan, now Norah Maszey] in an inappropriate manner."

1748The complaint also alleges that Respondent made "sexual

1756references and innuendos regarding her," and that Respondent

"1764implied" to her that "he could affect her school credits if she

1776made trouble for him." Based on Respondent's alleged misconduct,

1785Maszey subsequently filed a civil action against Respondent and

1794RHA.

179523. Maszey, now twenty-seven years of age, was a

1804cosmetology student at RHA between March 1995 until her

1813graduation in March 1996. During her tenure at RHA, Respondent

1823was one of her instructors.

182824. In September 1995, while in a floor setting learning

1838how to cut and style hair, Maszey went to the supply room to "get

1852a tube of color off the shelf." As she was bending over with her

1866back to the door, Respondent came up behind her and placed "his

1878hands right on the inside of [her] buttocks." Although

1887Respondent did not touch the vaginal area, "he was as close as he

1900could have been without" actually touching it. Maszey jumped up

1910and Respondent "just smiled and acted kind of scared" and said he

1922was "sorry." By inappropriately touching Maszey in this fashion,

1931Respondent committed misconduct in the practice of cosmetology.

1939Except for this incident, however, there was no other credible

1949evidence that Respondent inappropriately touched Maszey "on

1956numerous occasions," as alleged in the complaint.

196325. During Maszey's tenure as a student at RHA, Respondent

1973occasionally told her that she "was pretty." But this remark

1983alone does not rise to the level of constituting "sexual

1993references and innuendos," as alleged in the complaint. Indeed,

2002Maszey simply described these comments as being "way too much

2012complimenting," but nothing more. Finally, there is less than

2021clear and convincing evidence to support the allegation that

2030Respondent threatened to take away her credits if she "made

2040trouble for him."

2043E. Mitigating and Aggrevating Factors

2048a. Mitigating factors

205126. Respondent has been licensed as a cosmetologist for

2060seventeen years. Except for the two inappropriate touchings of

2069Choulat and Maszey, which occurred more than two years ago, he

2080has an unblemished record. Respondent has worked in his father's

2090school since the age of twenty. The loss of a license will

2102deprive him of working in his life-long profession and cause

2112financial harm to Respondent and his family. Contrary to

2121Petitioner's suggestion, Respondent is not found to be a "grave

2131danger to the public" should he retain his license.

2140b. Aggrevating factors

214327. Respondent improperly touched two young women, each on

2152one occasion. By doing so, he breached the position of trust he

2164held as an instructor.

216828. After being inappropriately touched in 1996, Choulat

2176lost her desire to pursue a career field in cosmetology and left

2188the school. She also lost approximately $2,463.00 she had

2198invested in the school. In addition, she sought counseling from

2208a social worker.

221129. Although Maszey eventually graduated from RHA, she no

2220longer works in the profession and now prefers to work alone at

2232home. At the same time, however, she stated that "Tim is [not]

2244responsible for absolutely all of that, but he sure did not

2255help."

2256CONCLUSIONS OF LAW

225930. The Division of Administrative Hearings has

2266jurisdiction over the subject matter and the parties hereto

2275pursuant to Section 120.569, Florida Statutes.

228131. Because Respondent's license as a professional is

2289subject to possible revocation, Petitioner bears the burden of

2298proving by clear and convincing evidence that the allegations in

2308the complaint are true. See , e . g ., Nair v. Dep't of Bus. and

2323Prof. Reg. , 654 So. 2d 205 (Fla. 1st DCA 1995).

233332. The complaint alleges that Respondent violated

2340Section 477.028(1)(b), Florida Statutes, by engaging in

2347misconduct in the practice or instruction of cosmetology. By

2356inappropriately touching students Choulet and Maszey on one

2364occasion, which has been established by clear and convincing

2373evidence, Respondent is guilty of misconduct within the meaning

2382of Section 477.028(1)(b), Florida Statutes, as alleged in Counts

2391I and III of the complaint. This in turn constitutes a violation

2403of Section 477.029(1)(h), Florida Statutes, which makes it

2411unlawful to violate any provision in Section 477.028, Florida

2420Statutes. The remaining allegations have not been sustained.

242833. Rule 61G5-30.001, Florida Administrative Code, sets

2435forth the penalties which may be imposed upon a licensee who is

2447found guilty of violating any provision within Section 477.029,

2456Florida Statutes. Subsection (3) of the rule provides that

"2465[w]hen the Board finds that any person licensed or registered

2475under Chapter 477, Florida Statutes, has committed any of the

2485acts set forth in Section 477.028, Florida Statutes, it is

2495recommended that the Board issue a final order imposing a

2505revocation of the license or registration."

251134. Rule 61G5-30.001(4), Florida Administrative Code,

2517provides that the Board may impose disciplinary action other than

2527the penalty recommended above upon consideration of certain

2535mitigating or aggrevating factors. They include the severity of

2544the offense; the danger to the public; the number of repetitions

2555of offenses; the length of time since the date of violations; the

2567number of complaints filed against the licensee; the length of

2577time the licensee has practiced; the actual damage, physical or

2587otherwise, caused by the violation; the deterrent effect of the

2597penalty imposed; the effect of the penalty upon the licensee's

2607livelihood; any efforts for rehabilitation; the actual knowledge

2615of the licensee pertaining to the violation; any attempts by the

2626licensee to correct or stop the violations or the refusal by the

2638licensee to correct or stop the violations; related violations

2647against the licensee in another state; actual negligence of the

2657licensee; penalties imposed for related offenses under Subsection

2665(1) of the rule; and any other mitigating or aggrevating

2675circumstances.

267635. Given the mitigating and aggrevating circumstances

2683found in findings of fact 26-29, together with the other relevant

2694considerations dictated by the rule, revocation of Respondent's

2702license is appropriate. Contrary to Petitioner's suggestion, in

2710making this determination, the undersigned has not considered

2718Respondent's lack of remorse as an aggrevating factor. See ,

2727e . g ., Bernal v. Dep't of Prof. Reg. , 517 So. 2d 113, 115 (Fla. 3d

2744DCA 1987)(a licensee's lack of remorse may not be a basis for "an

2757upward deviation from the [disciplinary] guidelines"). Finally,

2765Petitioner's suggestion that a maximum administrative fine in the

2774amount of $1,500.00 be imposed on Respondent is not found to be

2787appropriate.

278836. At hearing, Petitioner requested that Respondent

2795reimburse Petitioner for all investigative and legal costs

2803incurred in this proceeding. Because the imposition of such

2812costs is discretionary with the Board under Section 455.227(3),

2821Florida Statutes, Petitioner may renew its request when the Board

2831convenes to take final agency action. Respondent should,

2839however, be given an opportunity to verify the legitimacy and

2849accuracy of the requested costs.

2854RECOMMENDATION

2855Based on the foregoing Findings of Fact and Conclusions of

2865Law, it is

2868RECOMMENDED that the Board of Cosmetology enter a Final

2877Order finding Respondent guilty of violating Sections

2884477.028(1)(b) and 477.029 (1)(h), Florida Statutes, by

2891inappropriately touching students Choulet and Maszey, and that

2899Respondent's license number CL 0134716 be revoked. All other

2908charges should be dismissed.

2912DONE AND ENTERED this 21st day of April, 1998, in

2922Tallahassee, Leon County, Florida.

2926___________________________________

2927DONALD R. ALEXANDER

2930Administrative Law Judge

2933Division of Administrative Hearings

2937The DeSoto Building

29401230 Apalachee Parkway

2943Tallahassee, Florida 32399-3060

2946(850) 488-9675 SUNCOM 278-9675

2950Fax Filing (850) 921-6847

2954Filed with the Clerk of the

2960Division of Administrative Hearings

2964this 21st day of April, 1998.

2970COPIES FURNISHED:

2972Elizabeth C. Masters, Esquire

29767960 Arlington Expressway

2979Suite 230

2981Jacksonville, Florida 32311

2984Michael R. Yokan, Esquire

2988204 Washington Street

2991Jacksonville, Florida 32202

2994Joe Baker, Executive Director

2998Board of Cosmetology

30011940 North Monroe Street

3005Tallahassee, Florida 32399-0790

3008Lynda L. Goodgame, Esquire

3012Department of Business and

3016Professional Regulation

30181940 North Monroe Street

3022Tallahassee, Florida 32399-0792

3025NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3031All parties have the right to submit written exceptions within 15

3042days from the date of this Recommended Order. Any exceptions to

3053this Recommended Order should be filed with the Board of

3063Cosmetology.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/15/2004
Proceedings: Final Order filed.
PDF:
Date: 12/17/1998
Proceedings: Agency Final Order
PDF:
Date: 04/21/1998
Proceedings: Recommended Order
PDF:
Date: 04/21/1998
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 02/10/98.
Date: 03/31/1998
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 03/17/1998
Proceedings: Transcript filed.
Date: 03/17/1998
Proceedings: Transcript filed.
Date: 02/10/1998
Proceedings: CASE STATUS: Hearing Held.
Date: 02/09/1998
Proceedings: (From M. Yokan) Notice of Appearance filed.
Date: 01/29/1998
Proceedings: Order sent out. (hearing room location given for 2/10/98 hearing)
Date: 01/15/1998
Proceedings: Order sent out. (Petitioner`s motion to compel discovery is granted)
Date: 01/09/1998
Proceedings: (Petitioner) Motion to Compel Discovery (filed via facsimile).
Date: 12/18/1997
Proceedings: Order sent out. (Motion to Withdraw as counsel for Respondent filed by L. Walton granted.)
Date: 12/15/1997
Proceedings: (From L. Williams Walton) Motion to Withdraw filed.
Date: 11/03/1997
Proceedings: Second Notice of Hearing sent out. (hearing set for 2/10/98; 10:30am; Jacksonville)
Date: 10/29/1997
Proceedings: (Petitioner) Motion to Continue (filed via facsimile).
Date: 09/26/1997
Proceedings: (Petitioner) Notice of Service of Interrogatories; Petitioner`s First Interrogatories to Respondent filed.
Date: 09/24/1997
Proceedings: Order Designating Room Location sent out.
Date: 07/31/1997
Proceedings: Notice of Hearing sent out. (hearing set for 11/10/97; 10:30am; Jacksonville)
Date: 07/23/1997
Proceedings: (Petitioner) Response to Initial Order (filed via facsimile).
Date: 07/14/1997
Proceedings: Initial Order issued.
Date: 07/08/1997
Proceedings: Answer To Administrative Complaint; Agency Referral letter; Administrative Complaint; Election of Rights filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
07/08/1997
Date Assignment:
07/14/1997
Last Docket Entry:
07/15/2004
Location:
Jacksonville, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

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