10-001506PL Department Of Business And Professional Regulation, Board Of Cosmetology vs. Trang Doan Status: Closed Recommended Order on Thursday, June 17, 2010.

Summary: Clear and convincing evidence did not show that Respondent nail specialist performed waxing treatments that, if performed, would have exceeded her licensing authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF COSMETOLOGY, )

)

Petitioner, )

)

vs. ) Case No. 10-1506PL

)

TRANG DOAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on May 18, 2010. The ALJ conducted the hearing

by video teleconference in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Jason White, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

For Respondent: Trang Doan, pro se

8112 Anhinga Road

Fort Myers, Florida 33967

STATEMENT OF THE ISSUES

The issues are whether Respondent practiced beyond the

scope of her nail specialist license by performing waxing

treatments on a customer in violation of Subsections

455.227(1)(o) and 477.029(1)(i), Florida Statutes (2007), 1 and,

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against

Respondent on June 4, 2009. Respondent timely requested a

formal hearing, and Petitioner referred the matter to DOAH to

conduct the hearing.

At the hearing, Petitioner presented the testimony of one

witness, submitted one exhibit for admission into evidence, and

requested official recognition of two documents. Respondent

testified and submitted no exhibits for admission into evidence.

The identity of the witnesses, exhibit, and documents for

official recognition, and the rulings regarding each, are

reported in the one-volume Transcript of the hearing filed with

DOAH on June 3, 2010. Petitioner timely filed its Proposed

Recommended Order (PRO) on June 10, 2010. Respondent did not

file a PRO.

FINDINGS OF FACT

1. Several material facts are undisputed. Petitioner is

the state agency responsible for licensing and regulating the

practice of cosmetology in Florida. At all times material to

this proceeding, Respondent was licensed in the state as a nail

specialist pursuant to license number FV 9527661. Respondent's

license does not authorize her to perform hair removal wax

treatments.

2. The disputed material facts are whether Respondent

performed hair removal wax treatments on Ms. Priya Bhuta on

February 21, 2008, and collected $24.00 for the service. For

the reasons stated hereinafter, clear and convincing evidence

does not show that Respondent committed the disputed material

facts.

3. Ms. Bhuta did not testify at the final hearing.

Petitioner did not submit her deposition testimony for admission

into evidence.

4. Petitioner seeks to prove the disputed material facts

with the statements of two investigators concerning alleged

statements of Respondent. One investigator did not testify at

the hearing (hereinafter, the investigator- in - absentia ). The

other investigator testified at the hearing (hereinafter, the

investigator-witness).

5. The investigator-witness testified that the

investigator- in - absentia told the investigator-witness in a

private conversation between the two investigators that

Respondent made the alleged statements to the investigator- in -

absentia . For reasons discussed in the Conclusions of Law, the

ALJ does not find the testimony of the investigator-witness

pertaining to any alleged statements by Respondent to be

admissible. If the alleged statements were found to be

admissible, the statements are not credible or persuasive and do

not form an adequate basis for a finding of fact.

6. Respondent testified at the hearing, and the fact-

finder finds Respondent's testimony to be credible and

persuasive. Respondent did not perform wax treatments on

Ms. Bhuta, and Respondent did not make the alleged statements

attributed to her in the hearsay testimony of the investigator-

witness.

7. The alleged offense occurred on February 21, 2008,

according to paragraph number 4 in the Administrative Complaint.

The investigator- in - absentia conducted the field interview of

Respondent, in which the alleged statements occurred, on the

morning of February 21, 2008, prior to the opening of business

and prior the time of day when the alleged violation occurred. 2

It is not plausible to the trier of fact that Respondent made

the alleged statements to the investigator- in - absentia

pertaining to a violation in futuro . The trier of fact resolves

the evidential conflict in favor of Respondent for reasons

described more fully in the Conclusions of Law.

CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the subject matter and the

parties in this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat. (2009). DOAH provided the parties with adequate notice of

the final hearing.

9. The burden of proof is on Petitioner. Petitioner must

show by clear and convincing evidence that Respondent committed

the disputed material facts and the reasonableness of the

proposed penalty. Department of Banking and Finance, Division

of Securities and Investor Protection v. Osborne Stern and

Company , 670 So. 2d 932 (Fla. 1996).

10. If Respondent were to have made the alleged out-of-

court statements to the investigator-witness, the alleged

statements may have been admissions by a party opponent.

Admissions by a party opponent would have been admissible in

evidence for the truth of the matter stated, even though a party

opponent denies the admissions. § 90.803(18)(a); Lee v.

Department of Health and Rehabilitative Services , 698 So. 2d

1194, 1200 (Fla. 1997); Christopher v. State , 583 So. 2d 642,

645 (Fla. 1991); Costa v. School Board of Broward County , 701

So. 2d 414, 415 (Fla. 4th DCA 1997). Seabord Coast Line

Railroad Company v. Nieuwendaal , 253 So. 2d 451, 452 (Fla. 2d

DCA 1971).

11. The disputed statements in this proceeding are

statements allegedly made by the investigator- in - absentia to the

investigator-witness. The investigator-witness did not testify

that Respondent made any statement to the investigator-witness

or that the investigator-witness heard any statements from

Respondent. The investigator-witness only heard statements from

the investigator- in - absentia .

12. The investigator- in - absentia was not present at the

hearing, did not testify that Respondent made the statements to

him, and was not available for cross-examination by Respondent.

Therefore, the statements allegedly made by the investigator- in -

absentia to the investigator-witness are hearsay within the

meaning of Subsections 90.801(1) and (2) and are inadmissible

pursuant to Section 90.802. Compare Strickland v. Florida A&M

University , 799 So. 2d 276, 279 (Fla. 1st DCA 2001)(party's

testimony describing out-of-court statements by a non-party that

the non-party attributes to the opposing party is inadmissible).

13. The excluded statements attributed to Respondent by

the investigator-witness do not supplement other competent

evidence within the meaning of Subsection 120.57(1)(a). 3 When

the hearsay statements attributed to Respondent do not

supplement other competent evidence, the trier of fact is

constrained to disregard the hearsay. Tenbroeck v. Castor , 640

So. 2d 164, 167 n.3 (Fla. 1st DCA 1994).

14. The fact-finder did not consider the hearsay

statements of the investigator- in - absentia or the hearsay

testimony of the investigator-witness pertaining to the alleged

statements of Respondent. Even if the fact-finder were to have

considered that evidence, the evidence does not rise to the

standard of clear and convincing evidence.

15. The requirement for clear and convincing evidence

imposes an intermediate level of proof on Petitioner.

Petitioner must prove material factual allegations by more than

a preponderance of the evidence, but the proof need not be

beyond and to the exclusion of a reasonable doubt. The Florida

Supreme Court has explained the clear and convincing standard in

the following manner:

This intermediate level of proof entails

both a qualitative and quantitative

standard. The evidence must be credible;

the memories of witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to

convince the trier of fact without

hesitancy. . . . [T]he facts to which

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witness must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Inquiry Concerning a Judge No. 93-62 , 645 So. 2d 398, 404 (Fla.

1994)(quoting in part from Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983)). See also Owens-Corning Fiberglass

Corp. v. Ballard , 749 So. 2d 483, 486 (Fla. 1999); Adoption of

Baby E.A.W. , 658 So. 2d 961, 967 (Fla. 1995); E.F. v. State , 889

So. 2d 135, 139 (Fla. 3d DCA 2004); K-Mart Corporation v.

Collins , 707 So. 2d 753, 757 n.3 (Fla. 2d DCA 1998); McKesson

Drug Co. v. Williams , 706 So. 2d 352, 353 (Fla. 1st DCA 1998);

Kingsley v. Kingsley , 623 So. 2d 780, 786-787 (Fla. 5th DCA

1993); Lee County v. Sunbelt Equities, II, Limited Partnership ,

619 So. 2d 996, 1006 n.13 (Fla. 2d DCA 1993). Compare Robinson

v. Florida Board of Dentistry, Department of Professional

Regulation , 447 So. 2d 930, 932 (Fla. 3rd DCA 1984)(the term

"competent and substantial evidence" takes on vigorous

implications in license discipline proceedings that are not

present in other types of agency action).

16. The evidence relied on by Petitioner in this

proceeding fails the qualitative and quantitative standards for

clear and convincing evidence. The out-of-court statements

attributed to Respondent do not take the form of specific and

precise accounts of the words uttered. The evidence surmises

what Respondent said by a witness who did not hear Respondent

speak. The incriminating evidence lacks the precision and

specificity required to be clear and convincing. Compare

Inquiry Concerning a Judge , 645 So. 2d at 405 (testimony without

specific recollection is not clear and convincing), with Inquiry

Concerning a Judge , 645 So. 2d at 404 (unequivocal testimony of

various meetings is clear and convincing).

17. If the evidence were to present any factual conflict

in this proceeding, the fact-finder must resolve conflicts in

the evidence and decide the question one way or the other.

Dunham v. Highlands County School Board , 652 So. 2d 894, 896

(Fla. 2d DCA 1995); Heifetz v. Department of Business

Regulation, Division of Alcoholic Beverages & Tobacco , 475 So.

2d 1277, 1281 (Fla. 1st DCA 1985); Department of Professional

Regulation v. Wagner , 405 So. 2d 471, 473 (Fla. 1st DCA 1981).

The trier of fact resolved any evidential conflict in favor of

Respondent. The fact-finder is the sole arbiter of credibility.

Bejarano v. State, Department of Education, Division of

Vocational Rehabilitation , 901 So. 2d 891, 892 (Fla. 4th DCA

2005); Hoover, M.D. v. Agency for Health Care Administration ,

676 So. 2d 1380, 1384 (Fla. 3d DCA 1996); Goss v. District

School Board of St. Johns County , 601 So. 2d 1232, 1234 (Fla.

5th DCA 1992).

18. The surmise of the investigator-witness and the

inferences she gleaned from the statements made to her by the

investigator- in - absentia ostensibly sufficed as Petitioner's

definition of probable cause to initiate this proceeding.

However, inference and surmise do not satisfy the clear and

convincing standard in this de novo proceeding. Tenbroeck , 640

So. 2d at 167-168. In a world ensnarled by false assumptions

and hasty judgments, an agency's proof at the final hearing must

be as serious-minded as the penalty. Bowling v. Department of

Insurance , 394 So. 2d 165, 172 (Fla. 1st DCA 1981). The trier

of fact weighed the proof against Respondent at the final

hearing and found it less than clear and convincing.

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 finding Respondent not guilty of the violations charged in

the Administrative Complaint.

DONE AND ENTERED this 17th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of June, 2010.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2007), unless otherwise stated.

2/ Another alleged violation by a different licensee occurred on

January 8, 2008, but the Administrative Complaint does not

charge Respondent with that violation, and the alleged violation

of January 8, 2008, is not at issue in this proceeding.

3/ The hearsay statements of the investigator- in - absentia are

also included in Petitioner's Exhibit 1, but are not considered

as a basis for a finding of fact.

COPIES FURNISHED :

Jason White, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Trang Doan

8112 Anhinga Road

Fort Myers, Florida 33967

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

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 agency that

will issue the Final Order in this case.