STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY R. NELSON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2099

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was had pursuant to notice on November 10, 1981, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the Petition of Mary R. Nelson which appealed the determination by the Board of Cosmetology that Petitioner had failed the practical portion of the Board's examination taken by Petitioner on May 4, 1981.

APPEARANCES

For Petitioner: George L. Waas, Esquire

Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301

For Respondent: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

ISSUES

The Petitioner does not assert any specific basis for her appeal in her Petition; however, based upon the presentation at the formal hearing, the Petitioner essentially asserts that the practical examination does not conform to the Board's rules and that the practical portion of the examination was arbitrary and capricious as administered.

Summary:

Testimony was received from the two individuals who graded the practical portion of the examination, a member of the Board who participated in preparing the examination and a member of the Department of Professional Regulation staff who possessed expertise in the construction and administration of examinations. The Petitioner did not testify regarding the examination.

The Petitioner's case was based upon the divergence of the two examiners' grading on certain required procedures, specifically Blend and "Skip Waving." The Petitioner had the burden to show that the examination failed to conform to the Board's rules or was arbitrary and capricious. The Petitioner failed to prove her case. The Board's initial determination should be approved.

FINDINGS OF FACT

1. Petitioner applied for licensure by examination to practice cosmetology in Florida on the basis of having completed 600 hours of instruction in cosmetology. This is the minimum number of hours with which one may be admitted to the examination.

   
   

2. The Petitioner took the examination on May 4, 1981, which consisted of a written portion and a practical examination. Petitioner received a grade of

   87 on the written examination and a grade of 73 on the practical examination. A passing grade on the practical examination is 75.

   
   

3. The practical portion of Petitioner's examination was graded by Elinor Commander and Laura Petty, both of whom are licensed cosmetologists, cosmetology instructors, and have several years of experience in administering and grading practical examinations of the type Petitioner was given.

   
   

4. The examination was based upon the Board's rules and the points assigned to each of the required tasks had a reasonable relationship to the practice of cosmetology and protection of the consumer from unqualified practitioners.

   
   

5. The instructions provided the Petitioner before coming to the examination and prior to taking the examination were adequate to apprise the Petitioner of the skills she would have to demonstrate and the standard by which these skills would be assessed through the use of a live model.

   
   

6. The examiners, Commander and Petty, were well trained and experienced in administering and grading this type of examination. The use of two examiners is acceptable testing procedure and provides fairness to the applicant and public.

   
   

7. The examiners used the same written criteria to assess the Petitioner's performance, recording their observations on score sheets received as Exhibit K. The observations of the examiners as recorded in Exhibit K are accepted as accurate, and made a part of these findings in the absence of any conflicting testimony. The two examiners did not check the Petitioner's work at the same time, or compare their findings, making independent assessments of the Petitioner's work. The manner of assessing Petitioner's work by the examiners made it possible that each examiner did not look at the same portion of the model's hair and resulted in different observations by the examiners.

   
   

8. The examiners concurred on the assessment of Chemical Straightening, Base; Hair Bleaching, Application and Sub Parting and Coverage-Retouch. They concurred in part on Hair Shaping, Blend. They found different deficiencies on Chemical Straightening, Relaxer Application, and Hair Styling, Skip Waving. The examiners concurred in the majority of their findings, and each found items the other examiner had overlooked. Both examiners stated essentially the same standards for assessing all of these criteria.

   CONCLUSIONS OF LAW

   
   

9. The Board has been delegated the authority to regulate the practice of cosmetology in Florida under the police power of the State. The Board has been authorized to examine applicants for licensure to determine if they are qualified, and to adopt rules and regulations regarding the examination of applicants. Because all of the Board's authority to examine applicants is grounded in the police power, all of the matters related to the examination must be reasonable and related to the ultimate aim of protecting the public and may not be arbitrary or capricious.

   
   

10. The Petitioner attacks the examination, asserting first that the examination does not conform to the statutes and Board's rules, and that the grading of the practical examination was not fair. The burden lies on Petitioner to prove her allegations in order to obtain relief.

    
    

11. Regarding the assertion that the examination does not reflect the intent of the statute, Section 477.022, Florida Statutes, provides that the Board will specify by rule the general areas of competency covered by examination for licensure, to include relative weight assigned each area, the grading criteria to be used by the examiner, and the score necessary to pass. The Board adopted Rule 21F-6.03(2)(a), Florida Administrative Code, which provides for eight general areas of competency and the relative number of points assigned to each. The areas designated and the number of points assigned to each bear a direct relationship to the assessment of the applicant's competency. Rule 21F-6.03(2)(c), Florida Administrative Code, further provide-the general criteria to be used by the examiner in grading competency. These criteria include application techniques, tools and equipment, areas of application, partings, chemical relaxing/straightening results, test curl results, and coordination for the patron. The passing score is established by rule as 75 percent or better.

    
    

12. The Board has published a manual for the use of its examiners. This manual expands upon the general data contained in the rules, and provides specific individual tasks to be assessed, and breaks down further the number of points assigned to each task. These specific tasks are restated on the examiner's score sheet, Exhibit K. Again, the assignment of points in this manual is related to the criticality of the task in performing the service competently and safely.

    
    

13. The Petitioner failed to establish that the examination did not conform to the standards established in the statutes and rules.

    
    

14. Regarding the alleged failure of the examiners to fairly assess Petitioner's performance, Petitioner asserts that one of the examiners erred in determining the Petitioner had not fully covered strands in the application of relaxer, as set forth in Exhibit K. The Petitioner asserts that this error arose because of the time lag between the inspection of the two examiners. However, there was no evidence presented which of the two examiners inspected her work first, and the material used to simulate the relaxer chemicals does not dry easily.

    
    

15. Regarding the observation of more uneven strands of hair by one examiner than the other, as set forth in Exhibit K, Petitioner alleges this demonstrated a testing error which is procedurally deficient. In fact, it demonstrates the accuracy of testimony of the Department's expert on testing, that two examiners will make more reliable observations than one examiner will.

16. When the scores of the examiners recorded on Exhibit K are compared, contrary to Petitioner's assertion, there is a high degree of correlation in their findings. In the first, fifth, and sixth tasks in the left-hand column the examiners' findings were identical. On the fifth task in the right-hand column, the examiners both noted there were some uneven lengths, although one examiner found more than four uneven lengths and took off more points. Of the

    54 points taken off by both examiners from 200 possible points, there was concurrence by both examiners regarding 46 points deducted. The examiners each found one item worth two points not observed by the other examiner. Again, this is consistent with the testimony of the Department of Professional Regulation's expert on testing procedures who stated that the two examiners were used in practical examinations because statistically this provided the maximum assessment of performance with the smallest feasible number of examiners. The independent unmatched observations accounted for only four points of the 54 total points lost by Petitioner. The remaining two points were taken off by one examiner who observed more uneven strands of hair than the other examiner had found.

    
    

17. The Petitioner has failed to prove any departure from the standards established by the Board in grading or assessing the applicant's performance, or that these standards were arbitrary and capricious.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Board take no action on the Petition filed by Mary R. Nelson challenging her grade on the practical examination she took on May 4, 1981.

DONE AND RECOMMENDED this 21st day of December, 1981, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1981.

COPIES FURNISHED:

George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002099

Orders for Case No: 81-002099