16-000600PL Department Of Business And Professional Regulation, Board Of Cosmetology vs. Tania Jorge Status: Closed Recommended Order on Friday, July 22, 2016.

Summary: Revocation of license was appropriate for Respondent who paid company to submit an application for licensure containing false evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION, BOARD

OF COSMETOLOGY,

Petitioner,

vs. Case No. 16 - 0600PL

TANIA JORGE,

Respondent.

_______________________________/

RECOMMEND ED ORDER

On May 12, 2016, a duly - noticed hearing was held by video

teleconference at locations in Miami and Tallahassee, Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petit ioner: Ramsey D. Revell, Esquire

Dillon Jess, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32309

For Respondent: Elizabeth P. Perez, Esquire

Broad and Cassel

One Financial Plaza, Suite 2700

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

STAT EMENT OF THE ISSUE S

Whether Respondent violated section 477.029(1)(e), Florida

Statutes (2007), 1/ regulating licensure as a cosmetologist by the

State of Florida, as alleged in the Amended Administrative

Complaint; and, if so, what is the appropriate sanct ion.

PRELIMINARY STATEMENT

On September 24, 2015, the Department of Business and

Professional Regulation (Petitioner or Department), filed an

Amended Administrative Complaint against Tania Jorge (Respondent

or Ms. Jorge), on behalf of the Board of Cosmetol ogy (Board),

alleging that she had violated section 477.029(1)(e) by

submitting an application with a false and/or forged Puerto Rican

cosmetology license number to obtain licensure as a cosmetologist

by endorsement in Florida.

The case was originally set for hearing on April 7, 2016,

but a joint motion for continuance was granted and it was heard

on May 12, 2016. At hearing, Joint Exhibit J - 1, a copy of the

cosmetolog y license application of Ms. Jorge, was admitted.

Petitioner ' s Exhibit P - 2, a copy of Ms . Jorge ' s Florida

cosmetology license, was also admitted. Petitioner also offered

the testimony of Ms. Yadira Garcia, an investigations specialist,

and that of Ms. Julie Roland, a government analyst, both of whom

worked for the Department at the relevant time.

Respondent ' s Exhibits R - 2 through R - 5 were also admitted.

These included the application of a third party (Ms. Kathia

Mathelier), as discussed in detail below. Respondent also

testified on her own behalf.

The Transcript was filed on June 29, 2016. Petitioner ' s

Proposed Recommended Order was timely filed on July 8, 2016.

Respondent untimely filed a Motion for Enlargement of Time.

Finding no prejudice to Petitioner, an extension was granted, and

Respondent ' s Proposed Recommended Order was filed on July 15,

2016.

FINDING S OF FACT

1. Petitioner is the state agency charged with regulating

the practice of cosmetology pursuant to section 20.165 and

chapters 455 and 477, Florida Statutes (2015). The Board is the

professional licensing board charged with disciplinary final

agency action against cosmetologists pursuant to chapters 455

and 477.

2. Ms. Jorge was issued Florida cosmetology license number

CL 1196463 on April 9, 2008. The Florida license was issued

based upon the submission of an application for initial

cosmetology license by endorsement. Supporting licensure by

endorsement, the application submitted to the Board included a

certification dated February 15, 2007, purporting to have been

issued by the Commonwealth of Puerto Rico. That certific ation

indicated that Tania Jorge 2/ had completed 1200 hours of study

and had been duly licensed as a certified cosmetologist since

January 26, 1989. It indicated that her Puerto Rican license

number was 71770. Ms. Jorge ' s application file also contained a

transcript purportedly issued by the Academia de Belleza Maruggie

in Puerto Rico indicating that her studies began on August 7,

1988, and were completed on May 30, 1989, reflecting the

completion of 18 courses totaling 1200 hours of study, and the

name, number, and grade received by Ms. Jorge for each course

taken. 3/

3. Puerto Rican cosmetology license number 71770 was never

issued to Ms. Jorge.

4. Ms. Jorge came to the United States from Cuba in 1980.

She testified at hearing that she had never attend ed cosmetology

school in Puerto Rico, had never lived there, and in fact had

only visited there once for a few hours on a cruise.

5. Ms. Jorge testified that she went to Specialized Beauty

Center (SBC) in Kissimmee in order to prepare for and complete

t he Florida cosmetology licensure examination. She testified

that she paid SBC for a week - long review course to prepare for

the examination and that the following week SBC sent her to a

different place to take the examination. She testified that she

took the examination on a computer, in Spanish. She could not

recall the address.

6. Ms. Jorge testified that prior to the examination , she

submitted documentation to SBC at its request showing that she

had completed 1200 hours of study and completed a cours e on HIV.

She testified that she thought she had completed all of the

coursework necessary to obtain cosmetology licensure by

examination. Ms. Jorge testified that she did not know that SBC

had submitted an endorsement application and not an examination

application.

7. The only document introduced at hearing indicating

completion of 1200 hours of study is the transcript from the

Puerto Rican beauty school in Ms. Jorge ' s application file. The

only document showing completion of an HIV course in her fil e is

a Certificate of Completion for a four - hour course entitled

" HIV/Aids 104 " and dated March 17, 2008, indicating by heading

and signature that it was issued by SBC. Ms. Jorge admitted that

she did take that course at SBC. It was not clear why SBC wou ld

have required her to take another HIV course if she had submitted

documentation showing that she had already met that requirement.

8. Ms. Julie Roland, government analyst with the

Department, credibly testified that the cosmetology exam is given

at 22 locations around the state by a vendor company called

Pearson VUE. She testified that Pearson VUE specializes in

developing and administering various types of examinations, has

had the state contract at least since 2002, and always gives the

examinations at their facilities. There was no documentation in

Ms. Jorge ' s application file from Pearson VUE indicating that

Ms. Jorge had taken or passed their cosmetology examination. As

Ms. Roland testified, endorsement candidates do not take the

examination.

9. Ms. Jorge ' s application file maintained by the

Department contains some documents that do not belong there,

although they are all marked with her application number. Her

file contains duplicate " Attest Statement " pages: one is signed

by Ms. Jorge; the o ther appears to contain the signature of a

Katia (with no letter " h " ) Mathelier. It similarly contains two

" Affirmation Statement " pages : one containing the signature of

Ms. Jorge ; the other containing a signature reading Katia

Mathelier. Curiously, the Affirmation Statement page from the

cosmetology license application file of Kathia (with an " h " )

Mathelier and the Mathelier Affirmation Statement page in

Ms. Jorge ' s file are not identical. Not only is the first name

spelled differently, the signatures appear to be in different

handwriting, and they display different dates. Similarly, the

two Mathelier Attest Statement forms are not simply duplicates.

The name is spelled and written differently. It is not clear why

the Department did not become aware of these anomalies at the

time Ms. Jorge ' s application was submitted, when it did become

aware of them, or what action, if any, was taken when it was

discovered. 4/

10. Licensing information records of the Department

indicate that Kathia Mathelier is an O rlando cosmetologist who

was initially licensed on April 9, 2008. Her application also

contains a certificate from SBC showing completion of the

HIV/AIDS 104 course. Her application also contains a

certification dated February 15, 2007, purporting to hav e been

issued by the Commonwealth of Puerto Rico indicating that Kathia

Mathelier was the holder of a Puerto Rican cosmetology license.

Her application also contains a transcript purportedly issued by

the Academia de Belleza Maruggie in Puerto Rico showin g the

completion of the same 18 courses totaling 1200 hours of study,

the same beginning and ending dates of enrollment, exactly the

same grade received in every course, and the same typographical

errors as the transcript in Ms. Jorge ' s file.

11. Ms. Jorg e testified at hearing that she had no

knowledge of Ms. Mathelier and that she did not submit any

documents to SBC that were not her own. She testified that SBC

prepared and organized all of the application paperwork for her

and that she just signed where they told her she needed to sign.

The remainder of the application was not in her handwriting.

12. Ms. Jorge signed her application everywhere a signature

was required prior to its submission to the Board, and she

acknowledged that signing a document pl aces liability on the

signee for the contents of that document.

13. There was no deposition or live testimony from

Ms. Mathelier at the hearing. There was no testimony from SBC.

There was none from the Academia de Belleza Maruggie. No

evidence was intr oduced as to the roles that Academia de Belleza

Maruggie or SBC may have played in the fraud, or the relationship

between these entities. The inconsistencies and questions about

the application are not fully explained on this record, and any

complicity on the part of the schools is only a matter of

speculation.

14. Ms. Jorge ' s testimony is not at all credible, however.

No evidence in the record supports Ms. Jorge ' s testimony that she

completed 1200 hours of study at a school other than the Puerto

Rican s chool. It is simply not reasonable that SBC discarded

school transcripts she provided to it and unilaterally

substituted a different forged transcript and a false licensure

certification from Puerto Rico without the knowledge or

cooperation of Ms. Jorge. The only reasonable inference is that

Ms. Jorge paid SBC to submit her licensure application on her

behalf, that she was aware that it contained false information,

and that she knew she was not licensed as a cosmetologist in any

jurisdiction. The evidenc e is clear and convincing that false

documents were submitted to obtain Ms. Jorge ' s license and that

she personally intended for that false application to be

submitted.

15. Ms. Jorge is a single mother of two children, one of

whom is in college. R evocat ion of her license will greatly

impact her livelihood. Other than the present action, she has

practiced cosmetology without complaint since she was licensed in

2008 , and no previous discipline has been imposed.

CONCLUSIONS OF LAW

16. The Division of Admi nistrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 120.569 and 120.57(1),

Florida Statutes (2016).

17. Petitioner seeks to take disciplinary action against

the cosmetology license of Respondent. A proceeding to impose

discipline against a professional license is penal in nature, and

Petitioner bears the burden to prove the allegations in the

Amended A dministrative C omplaint by clear and convincing

evidence. Dep ' t of Banking & Fin. v . Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

18. Clear and convincing evidence has been said to require:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify mus t be distinctly remembered; the

testimony must be precise and explicit and

the witnesses 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

convicti on, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

19. Disciplinary statutes and rules " must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conser. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011). Any ambiguities must be construed in favor

of the licensee. Lester v. Dep ' t of Prof ' l Reg. , 348 So. 2d 923,

925 (Fla. 1st DCA 1977).

20. At the time Respondent ' s application for licensure

was submitted, section 477.029(2) provided that violation of

section 477.029 was grounds for disciplinary act ion by the Board.

21. Section 477.029(1)(e) provided in part:

It is unlawful for any person to . . . [g]ive

false or forged evidence to the department in

obtaining any license provided for in this

chapter.

22. It was clearly shown at hearing that Respon dent ' s

application for Florida cosmetology license number CL 1196463,

stating that Respondent was licensed in Puerto Rico, contained

false evidence. Respondent admitted that she was not licensed as

a cosmetologist in Puerto Rico. While Respondent testifi ed she

did not give SBC the certification from the Commonwealth of

Puerto Rico, that false document was submitted to the Florida

Board of Cosmetology.

23. The evidence also clearly showed that Respondent signed

the application prior to its submission to t he Department. That

document was an application for a cosmetology license by

endorsement, and the certification of licensure in Puerto Rico

was submitted as part of the application. Thus, SBC, acting as

Respondent ' s agent, submitted a false document to t he Board in

order to obtain Ms. Jorge ' s licensure by endorsement as a

cosmetologist in Florida. The argument that there is no clear

and convincing evidence that Respondent submitted an application

to the B oard is rejected.

24. Any argument that section 4 77.029(1)(e) does not

contain the word " knowingly " as some similar statutes 5/ do and

that , therefore , Petitioner need not prove any intention or

misconduct on the part of Respondent is rejected. An honest

mistake would not constitute a violation of sectio n

477.029(1)(e). Cf. Pratt v. Bd . of Nursing , Case No. 13 - 2417

(Fla. DOAH Oct. 22, 2013; Fla. DOH Dec. 19, 2013)(section

464.018(1)(a) , Florida Statutes, requires a showing of intent to

misrepresent information provided on an application); Const. Ind.

Li c. Bd. v. Godwin , Case No. 83 - 0022 (Fla. DOAH Dec. 22, 1983;

Fla. DPR Mar. 15, 1984)(even though section 489.129(1)(j) ,

Florida Statutes, does not contain the word " knowingly, "

submission of false documents requires mens rea ). In Pic N ' Save

Central Flori da v. Dep art ment of Bus iness Reg ulation , Div ision of

Alcoholic Bev erages and Tobacco , 601 So. 2d 245 (Fla. 1st DCA

1992), the court declined to revoke the right to conduct a

business based upon conduct of an employee that was unknown to

the employer. The court held that " one ' s license to engage in an

occupation is not to be taken away except for misconduct personal

to the licensee. "

25. The circumstances here differ substantially from those

in Pic N ' Save , however. It is clear that by signing an

applicat ion to be submitted for state licensure, an applicant is

personally representing the truth of its contents. Respondent ' s

claim that she was completely unaware of what documentation her

application contained, or even that it was an endorsement

application, is simply not credible under the circumstances. 6/

26. There is no evidence in the record to corroborate

Respondent ' s testimony that she completed 1200 hours of

instruction at some unidentified school and submitted that

documentation to SBC, which then, f or its own purposes and

unbeknownst to her, substituted a forged transcript and false

licensure certification from Puerto Rico. 7/

27. The evidence clearly shows that Respondent did not

complete the required coursework in Puerto Rico, that she was

never licensed there, that she signed an application for

cosmetology licensure by endorsement supported by false

documents, and that she paid SBC to submit that application to

the Board on her behalf. The only reasonable inference that may

be drawn is that she intended to submit the false evidence. See

Walker v. Dep ' t of Bus. & Prof ' l Reg . , 705 So. 2d 652, 654 (Fla.

5th DCA 1998)(circumstantial evidence is sufficient to prove

appellant ' s act is intentional).

28. Petitioner proved by clear and convincing evide nce that

Respondent violated section 477.029(1)(e).

Penalties

29. Section 456.079, Florida Statutes, provided that each

board shall adopt by rule and periodically review penalty

guidelines applicable to each ground for disciplinary action that

may be imp osed by the board pursuant to its practice act.

30. At the time of the offense, the Board had adopted

Florida Administrative Code Rule 61G5 - 30.001(2)(j), which

provided in part that the penalty for obtaining a license by

false or forged evidence would nor mally be a fine of $500 and

revocation of the cosmetology license.

31. Rule 61G5 - 30.001(4) also provided:

Based upon consideration of the following

factors, the Board may impose disciplinary

action other than the penalties recommended:

(a) The danger to the public;

(b) The length of time since date of

violation;

(c) The number of complaints filed against

the licensee;

(d) The length of time licensee or

registrant has practiced;

(e) The actual damage, physical or

otherwise, caused by the violation ;

(f) The deterrent effect of the penalty

imposed;

(g) The effect of the penalty upon the

licensee ' s or registrant ' s livelihood;

(h) Any efforts for rehabilitation;

(i) The actual knowledge of the licensee or

registrant pertaining to the violation;

(j) Attempts by licensee or registrant to

correct or stop violations or refusal by

licensee or registrant to correct or stop

violations;

(k) Related violations against a licensee or

registrant in another state including

findings of guilt or innocence, penalties

imposed, and penalties served;

(l) Actual negligence of the licensee or

registrant pertaining to any violations;

(m) Penalties imposed for related offenses

under subsection (1) above;

(n) Any other mitigating or aggravating

circumstances.

32. Respondent testified that revocation of her license

would greatly impact her livelihood. The offense took place over

eight years ago, and other than the present action, she has

practiced cosmetology without complaint since that time. There

is no re ason to conclude that she is a danger to the public.

33. These mitigating circumstances are not so substantial

as to warrant deviation from the recommended penalities

established by rule 61G5 - 30.001 for the submission of false or

forged evidence.

34. Se ction 455.227(3)(a), Florida Statutes, provided that

costs related to investigation and prosecution of a disciplinary

case, excluding costs associated with an attorney ' s time, may

also be assessed.

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 finding Tania

Jorge in violation of section 477.029(1)(e), Florida Statutes

(2007), as charged in the Amended Administrative Comp laint;

imposing an administrative fine of $500; and revoking her license

to practice as a cosmetologist in the State of Florida.

It is further recommended that should the board establish,

by rule, requirements for reapplication by applicants whose

licens es have been revoked, that Tania Jorge be permitted to

apply for re - licensure upon satisfying then - current requirements

for an initial license.

DONE AND ENTERED this 22nd day of July , 2016 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divis ion of Administrative Hearings

this 22nd day of July , 2016 .

ENDNOTE S

1/ References to the Florida Statutes are to the to the 2007

codification, except as otherwise indicated.

2/ The certification from the Department of State of the

Commonwealth of P uerto Rico actually indicates that the license

was held by Tania Pitaluga ; however, it is undisputed that Tania

Jorge was formerly known as Tania Pitaluga and that they are one

and the same person. The parties assert no issue related to

these different na mes, and so for clarity and ease of reference,

Jorge is the only name used here.

3/ The documents thus improbably assert that Ms. Jorge was

licensed some four months before she completed the required

coursework.

4/ Although Ms. Roland credibly testif ied that endorsement

candidates do not take the examination, an application checklist

from the Department ' s files on Ms. Jorge indicates that " Cert of

Lic. via other state (if applic), " " Transcripts, " " Verification

of Schooling Hours, " and " Verification of Written Exam " were all

marked as complete on April 9, 2008.

5/ Compare sections 457.116(1)(d) (acupuncturists) , 468.223(1)(d)

(occupational therapists) , 468.531(1)(e) (employee leasing

companies) , 468.8319(1)(d) (home inspectors) , 472.031(1)(d)

(surveyo rs and mappers) , 489.127(1)(d) (contractors) , and

489.531(1)(f) (electrical contractors) , Florida Statutes , all of

which contain the phrase " knowingly give false or forged

evidence " with sections 373.336(1)(c) (water well contractors) ,

468.1745(1)(d) (nurs ing home administrators) , 468.629(1)(d)

(building code administrators) , 471.031(1)(d) (professional

engineers) , 474.213(1)(d) (veterinarians) , 476.204(1)(e)

(barbers) , 480.047(1)(f) (massage therapists) , and 491.012(1)(f)

(social workers) , Florida Statutes , which omit the word

" knowingly. "

6/ Even were that testimony to be credited, it would not absolve

Respondent of responsibility. It would, to the contrary, simply

confirm that she exhibited reckless disregard for the truth of

the factual representation s in her application. See Ocean Bank

of Miami v. Inv - Uni Inv. Corp. , 599 So. 2d 694, 697 (Fla. 3d DCA

1992)(intentional misconduct can be established by showing either

actual knowledge or that defendant was reckless as to the truth

of the matter asserted) ; Hale v. State , 838 So. 2d 1185, 1187

(Fla. 5th DCA 2003)(in criminal context, defendant knowingly

makes a false statement by signing a document without reading it

if he acts " with reckless disregard of whether the statements

were true or with a conscious purpose to avoid learning the

truth " ). Respondent ' s further argument that she could not read

English and so may not be held responsible for the

representations in her application is also unavailing. See U . S .

v. Santiago - Fraticelli , 730 F.2d 828, 831 (1s t Cir. 1984)(even if

defendant spoke only Spanish, failure to ask what questions in

English meant could be found to demonstrate reckless disregard

for the truth).

7/ This is not to conclude that it is unlikely that either SBC

or Academia d e Belleza Marug gie, or both, were complicit in

Ms. Jorge ' s action, an issue not relevant here.

COPIES FURNISHED:

Elizabeth P. Perez, Esquire

Broad and Cassel

One Financial Plaza, Suite 2700

100 Southeast Thi rd Avenue

Fort Lauderdale, Florida 33394

(eServed)

Ramsey D. Revell, Esquire

Dillon Jess, Esquire

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32309

(eServed)

Robyn Barineau, Executive Director

Board of Cosmetology

Department of Busines s and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Fl orida 32309

(eServed)

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

wi ll issue the Final Order in this case.