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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 97-3100

)

TIMOTHY C. TROUTMAN, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

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

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Elizabeth C. Masters, Esquire

7960 Arlington Expressway

Suite 230

Jacksonville, Florida 32211

For Respondent: Michael R. Yokan, Esquire

204 Washington Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent's license as a cosmotologist

should be disciplined for the reasons cited in the Administrative

Complaint filed on June 20, 1997.

PRELIMINARY STATEMENT

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

Professional Regulation, Board of Cosmetology, issued an

Administrative Complaint alleging that Respondent, Timothy C.

Troutman, a licensed cosmetologist, was guilty of misconduct in

the practice or instruction of cosmetology in violation of

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

alleged that by violating the foregoing statute, Respondent also

violated Section 477.029, Florida Statutes, which makes it

unlawful to violate any provision within Section 477.028, Florida

Statutes. The primary underlying allegations are that Respondent

improperly touched three women while employed as an instructor at

a cosmetology school in 1995 and 1996. Respondent denied the

allegations and requested a formal hearing under Section 120.569,

Florida Statutes, to contest the charges.

The matter was referred by Petitioner to the Division of

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

Administrative Law Judge be assigned to conduct a formal hearing.

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

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

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

1998, at the same location.

At final hearing, Petitioner presented the testimony of Neva

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

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

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

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

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

exhibits were received in evidence. Respondent testified on his

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

environmental health specialist; and his father, Howard Troutman,

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

2, 3, and 5-11. All exhibits were received in evidence.

Finally, the undersigned took official recognition of Chapters

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

Administrative Code.

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

Proposed Findings of Fact and Conclusions of Law were due on

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

have been considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. This proceeding involves a complaint that Respondent,

Timothy Coutman, a licensed cosmetologist since 1981, engaged

in "misconduct" while employed as an instructor at Riverside

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

events herein occurred, Respondent was licensed as a certified

cosmetologist having been issued license number CL 0134716 by

Petitioner, Department of Business and Professional Regulation,

Board of Cosmetology (Board).

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

campuses, including one on Beach Boulevard in Jacksonville,

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

Troutman.

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

In this capacity, he supervised the activities of approximately

twenty students at any given time, as they performed cosmetology

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

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

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

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

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

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

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

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

B. Count I

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

to Choulat, Respondent "proceeded to massage her bare breasts

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

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

include the sides of her breasts."

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

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

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

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

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

to her high school studies.

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

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

relationship.

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

services on four clients. Throughout the morning, Respondent

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

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

room that was used for the giving of facials.

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

the giving of the facial. Respondent instructed Choulat to

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

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

told Choulat to lie down and close her eyes.

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

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

large towel that Respondent had placed over her chest.

Respondent started performing the facial, but he quickly moved

beyond the acceptable scope of a facial.

10. Without asking Choulat's permission, Respondent rubbed

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

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

breasts.

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

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

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

and Choulat put her clothes back on.

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

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

that Respondent had touched her breasts in the facial room.

Summers advised Choulat to tell her mother.

13. Later that afternoon, Summers confronted Respondent and

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

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

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

Summers asked Respondent what would happen if Choulat went to the

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

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

a complaint with the Jacksonville Sheriff's Office regarding

Respondent's conduct. Choulat reported that Respondent had

touched her breasts without her permission. She followed up by

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

State Attorney, and reporting the incident to Respondent's

father.

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

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

stopped her course of studies and is now employed in another

field.

16. Although Choulat has a pending civil action against

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

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

over time, her actions immediately after the incident occurred,

the corroborating testimony of Summers, an impartial witness, and

the admissions made by Respondent to Summers immediately after

the incident. Respondent's contentions that Choulat had

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

never removed, that nothing improper occurred during the fifteen-

minute demonstration, and that he made no incriminating

admissions to witness Summers have been rejected.

17. The evidence established that while a facial may extend

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

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

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

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

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

classroom setting. Therefore, Respondent's conduct with student

Choulat equates to misconduct in the practice of cosmetology.

C. Count II

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

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

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

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

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

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

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

threatened by [the calls]."

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

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

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

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

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

receptionist to cut her hair.

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

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

initial haircut, Respondent checked the cut to determine whether

it was even.

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

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

accidentally touched her breasts. However, if such touching

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

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

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

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

Respondent may have accidentally come into contact with Flowers'

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

unintentional. Finally, there was no testimony to support the

allegation that Respondent called Flowers on numerous occasions

at home in a threatening fashion.

D. Count III

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

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

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

The complaint also alleges that Respondent made "sexual

references and innuendos regarding her," and that Respondent

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

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

Maszey subsequently filed a civil action against Respondent and

RHA.

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

cosmetology student at RHA between March 1995 until her

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

was one of her instructors.

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

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

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

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

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

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

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

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

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

Respondent committed misconduct in the practice of cosmetology.

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

evidence that Respondent inappropriately touched Maszey "on

numerous occasions," as alleged in the complaint.

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

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

alone does not rise to the level of constituting "sexual

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

Maszey simply described these comments as being "way too much

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

clear and convincing evidence to support the allegation that

Respondent threatened to take away her credits if she "made

trouble for him."

E. Mitigating and Aggrevating Factors

a. Mitigating factors

26. Respondent has been licensed as a cosmetologist for

seventeen years. Except for the two inappropriate touchings of

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

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

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

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

financial harm to Respondent and his family. Contrary to

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

danger to the public" should he retain his license.

b. Aggrevating factors

27. Respondent improperly touched two young women, each on

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

held as an instructor.

28. After being inappropriately touched in 1996, Choulat

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

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

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

a social worker.

29. Although Maszey eventually graduated from RHA, she no

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

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

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

help."

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 120.569, Florida Statutes.

31. Because Respondent's license as a professional is

subject to possible revocation, Petitioner bears the burden of

proving by clear and convincing evidence that the allegations in

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

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

32. The complaint alleges that Respondent violated

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

misconduct in the practice or instruction of cosmetology. By

inappropriately touching students Choulet and Maszey on one

occasion, which has been established by clear and convincing

evidence, Respondent is guilty of misconduct within the meaning

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

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

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

unlawful to violate any provision in Section 477.028, Florida

Statutes. The remaining allegations have not been sustained.

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

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

found guilty of violating any provision within Section 477.029,

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

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

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

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

recommended that the Board issue a final order imposing a

revocation of the license or registration."

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

provides that the Board may impose disciplinary action other than

the penalty recommended above upon consideration of certain

mitigating or aggrevating factors. They include the severity of

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

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

number of complaints filed against the licensee; the length of

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

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

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

livelihood; any efforts for rehabilitation; the actual knowledge

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

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

licensee to correct or stop the violations; related violations

against the licensee in another state; actual negligence of the

licensee; penalties imposed for related offenses under Subsection

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

circumstances.

35. Given the mitigating and aggrevating circumstances

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

considerations dictated by the rule, revocation of Respondent's

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

making this determination, the undersigned has not considered

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

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

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

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

Petitioner's suggestion that a maximum administrative fine in the

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

appropriate.

36. At hearing, Petitioner requested that Respondent

reimburse Petitioner for all investigative and legal costs

incurred in this proceeding. Because the imposition of such

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

Florida Statutes, Petitioner may renew its request when the Board

convenes to take final agency action. Respondent should,

however, be given an opportunity to verify the legitimacy and

accuracy of the requested costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Cosmetology enter a Final

Order finding Respondent guilty of violating Sections

477.028(1)(b) and 477.029 (1)(h), Florida Statutes, by

inappropriately touching students Choulet and Maszey, and that

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

charges should be dismissed.

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

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of April, 1998.

COPIES FURNISHED:

Elizabeth C. Masters, Esquire

7960 Arlington Expressway

Suite 230

Jacksonville, Florida 32311

Michael R. Yokan, Esquire

204 Washington Street

Jacksonville, Florida 32202

Joe Baker, Executive Director

Board of Cosmetology

1940 North Monroe Street

Tallahassee, Florida 32399-0790

Lynda L. Goodgame, Esquire

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 within 15

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

this Recommended Order should be filed with the Board of

Cosmetology.