STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENEVIEVE MARIE SIGNORELLI, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3113

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Cosmetology, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on March 19, 1982, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: George Waas, Esquire

SLEPIN SLEPIN LAMBERT & WAAS

1114 East Park Avenue Tallahassee, Florida 32301

For Respondent: Susan Tully, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

Petitioner Genevieve Marie Signorelli is an applicant for licensure by examination to practice cosmetology in the State of Florida pursuant to Chapters

455 and 477, Florida Statutes, and the rules promulgated thereunder. The issue in this case is whether the Petitioner Signorelli is entitled to a passing grade on the practical portion of the cosmetology examination administered August 27, 1981, in Winter Haven, Florida.

During the hearing, the Petitioner testified on her own behalf and Petitioner's Exhibits 1 and 2 were offered and admitted into evidence. No witnesses were presented by the Respondent, but sworn statements of two Department employees present at the August 27, 1981, examination were admitted without objection as Respondent's Exhibits 1 and 2.

FINDINGS OF FACT

1. Petitioner applied for licensure by examination to practice cosmetology within Florida after having completed 600 hours of instruction in cosmetology.

2. Petitioner took the examination in Winter Haven, Florida, on August 27, 1981. The examination consists of two parts, written and practical, each of which must be passed to obtain licensure. The passing grade on each portion of the examination is 75. Petitioner received a grade of 85 on the written and

   73.5 on the practical examination.

   
   

3. The practical examination of August 27, 1981, was graded by Virginia Stolz and Kathryn Clymer, both of whom are licensed cosmetologists who have been employed by the Department of Professional Regulation as examiners for cosmetology examinations during the past six years.

   
   

4. The practical examination is an opportunity for examinees to demonstrate their competence by performing several cosmetology services within a given amount of time. The services performed, the given time for each service, and the number of points assigned each service are defined by Board rule and incorporated into the grading score sheet for the practical examination.

   
   

5. During the hair shaping portion of the practical examination, the Petitioner informed an unidentified examiner of problems with her model's hair which included gaps in the hair from a recent tint and haircut. The Petitioner was informed by the unidentified examiner that she should skip over the gaps since they could not be shaped into the haircut and corrected. Notwithstanding this, two points were deducted frog Petitioner's score due to gaps in her model's hair.

   
   

6. When deficiencies are reported, it is the normal procedure for an examiner to make notations in writing; however,. the examiner's notes pertaining to the examination of August 27, 1981 have been destroyed. If an examiner is informed of deficiencies in a model's hair prior to the start of the examination, points for the deficiency are not deducted when the problem is noted by the examiner. In Petitioner's case, however, the timer had already started before she was given the opportunity to point out the gap problem with the model's hair and no notes exist to confirm that the examiner did not deduct points for the preexisting problem.

   
   

7. It is possible to lose time by reporting deficiencies because they are reported after the timer is started. The amount of time normally lost in such a situation is 2-3 minutes out of the 30 minutes allocated for hair shaping.

   
   

8. Following the 30 minutes allocated for hair shaping, the Petitioner was to clean the station where she performed the haircut. The clean up time was in addition to the 30 minutes given for the shaping procedure and had no maximum time set for the procedure to be completed.

   
   

9. When she finished the hair shaping procedure, the Petitioner waited for a broom and dust pan to clean her station. Since she was fartherest away from available cleaning materials, Petitioner was among the last examinees to get access to the cleaning tools. Due to her concern that points would be deducted if she stayed in the station area too long waiting for cleaning tools, Petitioner did not clean her station and instead went to the area where other examinees were sent.

   
   

10. When the examiners realized that Petitioner had joined the other examinees and not cleaned her station, she was sent back to her station to sweep her model's hair. However, points were deducted from her test score for failing to clean her station despite no time limit being attached to the cleaning portion of the examination.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter pursuant to Section 120.57(1), Florida Statutes.

    
    

12. The Petitioner in this proceeding has alleged unfair treatment in the conduct of a state licensing exam. As a result of the problems she encountered with her model's hair, the cleaning of her station and the deduction of points due to these problems, the Petitioner has requested that her score be adjusted to reflect a passing grade on the practical exam or, in the alternative, that she be given the opportunity to retake the practical examination.

    
    

13. In York v. State ex rel. Schwcaid, 10 So.2d 813, (Fla. 1943), an unsuccessful examinee sued the State Board of Dental Examiners alleging unfair treatment in the administration of the exam. The examinee also requested the Board to produce examination papers and tally sheets. Due to unexplained reasons, the Board was unable to produce all the examination papers requested. In affirming the trial court's issuance of a Writ of Mandamus which ordered the exam regraded and the unsuccessful examinee issued a license, the Court stated:

    
    

    In the main, the facts on which appel- lee predicted his charge of unfair treat- ment or grading were or should have been available to appellants and when the charge was lodged against them, it was their duty to come forward and make a clean breast of what they had. The law requires them to keep the examination papers for a period

    of two years and when unfair charges as

    to grading have been made, they should come forward with the papers and offer to dis- prove the charge or make provision for re- grading if necessary. There could be no other reason for preserving such records and if that course had been pursued, the case would not have reached this Court.

    
    

    The conduct of an administrative board toward those with whom it deals should be so fair that there is no ground to invite suspicion. It certainly will not be per-

    mitted to withhold evidence that the law re- quires it to keep from those who are en- titled to have it and then say you did not prove your case. Administrative regulations are binding on those affected by them only when promulgated in due course. They will not be permitted to be used in an ex post facto manner as charged in this case. Fair- ness to the individual is the sine quo non of all legal procedure in a democracy like ours.

14. Although the examination questions and answer sheets were presumably retained in the instant case, the notations made by Department employees during the course of the exam were not. Since these notations could have an effect on the grade received by an examinee, they should be retained along with the test booklets and answer sheets. Cf. Civil Service Board v. Fonner, 181 So.2d 595 (Fla. 3rd DCA 1965).

    
    

15. The record in this case demonstrates that during the examination, the Petitioner was uncertain and confused as to the proper procedures to be followed. She lost needed time during the hair shaping procedure because the clock had already begun before Department personnel could reach her station to check her model's hair. Although points were not to be deducted when a preexisting, non-correctable condition such as gaps in the hair was present, the Petitioner nonetheless lost points for leaving gaps in the haircut. Also, points were deducted for the Petitioner's failure to clean her station when no time limit was given for finishing this task. When she was told that she should return and clean her station, the Petitioner did so but still lost points from her examination grade.

    
    

16. Under these circumstances, points should not have been deducted from the Petitioner's score for leaving gaps in the hair and failing to clean her station. Her grade should therefore be adjusted to a passing grade of 75. The alternate relief requested by counsel, that the Petitioner be allowed to retake the practical examination, is not a preferable option in this case because of the finding that points should not have been deducted from Petitioner's hair shaping score for failing clean up and for failing to correct a preexisting problem of hair gaps. Presumably, the Petitioner would be required to retake all seven parts of the practical examination, including those in which she scored high, in order to correct the problems which arose in one part of the exam. Her failure to correct a non-correctable problem with a model's hair and to clean her station immediately following the hair shaping procedure do not reflect on the Petitioner's actual skills as a cosmetologist.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Petitioner be given a passing grade on the practical portion of the August 27, 1981 cosmetology examination based on deductions which were erroneously made on the hair shaping and station cleaning portion of her practical examination.

DONE and ORDERED this 26th day of April, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, 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 26th day of April, 1982.

COPIES FURNISHED:

George Waas, Esquire

SLEPIN SLEPIN LAMBERT & WAAS

1114 East Park Avenue Tallahassee, Florida 32301

Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601 - The Capitol Tallahassee, Florida 32301

Myrtle Aase, Executive Director Florida Board of Cosmetology Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-003113

Orders for Case No: 81-003113