STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SHIRLEY FORCHION, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0781
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, BOARD OF )
COSMETOLOGY, )
)
Respondent. )
)
RECOMMENDED ORDER
A final hearing was held in this case in Orlando on May 30, 1984. The issue is whether petitioner Shirley Forchion passed the practical examination for licensure as a cosmetologist by the Board of Cosmetology (Board). Forchion claims she was awarded 74 total points, one point below a passing grade of 75, because: (1) she erroneously lost credit for eight of the 100 possible points in cases where the two examiners disagreed whether she met the applicable criteria for satisfactory performance; and (2) she lost seven points for failure to demonstrate use of a razor because she had no notice of the necessity to have a razor at the examination.
FINDINGS OF FACT 1/
Forchion took the Board's practical examination on June 28, 1983. The examination was administered by two licensed examiners, Elinore Commander and Laura Petty, in accordance with the Board's rules and Board policies for standardization of examinations. It measures minimal competency. During examination, the applicants are known only by numbers. In most cases, they perform the service in less than the allotted amount of time and then move to a separate area while the examiners grade the service on the models. Two examiners are used for each group of applicants. In grading, each examiner generally starts at the opposite end of the group so that there is separate, independent grading of each service by each examiner. The examiners utilize grade sheets to judge whether the applicants met the criteria for satisfactory performance of the services being tested. The examiners mark their grade sheets from their observations of the candidates' performance and do not compare their grade sheets or notes.
The Board reviewed the grade sheets and assigned a point value grade to the criteria. The examiners agreed 83 percent of the time, an acceptable agreement rate. When they disagreed, the candidate received one-half of the possible points for the criterion in question. Using this procedure, Forchion's grade was 74, one point below passing.
In the application of the base to protect the scalp during chemical straightening, Examiner Commander observed that the hairline was not completely covered, while Examiner Petty said that it was. Forchion therefore received 1.5 instead of 3 points under that criterion. If Petty was correct and Commander wrong, Forchion should have received 3 points (and she would have passed the practical examination).
But Forchion did not prove this possible explanation of the discrepancy. The discrepancy could just as easily have been because: (1) Commander may have inspected more closely than Petty did; (2) the material may have softened and run after Commander's examination, covering the hairline more completely; or (3) the hairline may have appeared to be completely covered when Petty inspected but, because the material was not properly applied to the scalp, it moved, allowing Examiner Commander to observe the deficiencies. If any of those explanations were true, Forchion should have received no points, not 1.5.
Candidates are responsible for the material which they will utilize in the examination. They can use either balsam or cholesterol or a mixture of the two. The thickness or consistency of the material is their responsibility. As mentioned, some of the discrepancies in grading could have resulted if the material dried out and stuck to the hair or if the material became too runny and covered an area of the scalp that was not previously covered when the first examiner checked.
In the application of hair bleach procedure, both examiners found holidays and found that the material was not applied neatly and evenly. In addition, Commander observed that the bleach was not applied from the scalp area to one-half inch, as required by the criteria for the touch-up procedure being tested; Petty observed that it was. Forchion therefore was awarded two of the four possible points under that criterion. Forchion did not prove that this grade was in error to her prejudice. The one-half inch requirement was a judgment call unless measured, and movement of the material between inspections by the two examiners could have either increased or decreased Forchion's grade, as with the application of the chemical straightening base.
In the application of tint, both examiners found holidays. In addition, Commander observed that the hairline was not completely covered, that the scalp area was not completely covered and that the material was not neatly and evenly distributed, as necessary in the "go darker" tint being tested; Petty observed that it was. But again, there are several possible explanations for the discrepancy, and Forchion did not prove the explanation which would have established her entitlement to 5 points, instead of the 2.5 points she received under those criteria. The same possible explanations for discrepancies between the examiners' scores on application of the chemical straightening base could as easily explain the discrepancies in the scores on this procedure.
In the permanent wave procedure, both examiners found that the rods were wound too tight (which can cause the hair to break). In addition, Commander observed that the hair was not smoothly wound on the rods, while Petty observed that it was. Finally, Petty observed that the rods were not more than one-half a rod off base, as required; Commander observed that they were. As a result, Forchion was awarded two of four possible points under those criteria. But the examiners inspected different rods during this procedure. Forchion's proof did not exclude this possible explanation of the scoring discrepancies. Therefore, Forchion did not prove that the test scores should be changed.
Finally, Forchion lost seven points for failure to demonstrate razor procedures. Forchion's failure resulted from her failure to bring a razor to the examination. While not raised in the pleadings, Forchion raised at final hearing the question whether she was adequately notified of the need to bring a razor and perform procedures using a razor. But Forchion conceded at final hearing that she may well have received (but not read) the notice to appear sent to her advising her of these matters. A similar notice was sent to her cosmetology school instructor, who advised her classes of these requirements. The evidence suggests that Forchion received these notifications but just did not pay attention to them, read them or remember them. In any event, Forchion did not prove the contrary.
CONCLUSIONS OF LAW
Section 455.217(1), Florida Statutes (1983), requires examinations to "adequately and reliably measure an applicant's ability to practice the profession" and authorizes the various boards to "specify the criteria to be used by the examiner, the relative weight to be assigned in grading each criterion, and the score necessary to achieve a passing grade." Section 477.019(1)(c) Florida Statutes (1983), makes receipt of a passing examination grade a prerequisite to licensure as a cosmetologist.
By Rule 21F-18.03(3), Florida Administrative Code, as amended January
1 1983, the Board provided for the examination to be administered in Jne, 1983. It includes a practical examination, setting forth the procedures to be tested, the criteria on which the procedures were to be graded, and the relative weight given to each procedure. Rule 21F-18.03(8), Florida Administrative Code, provides that failure to perform a procedure in the examination would result in loss of possible points.
In this case, as in all application proceedings, Forchion had the burden to prove her entitlement to licensure, i.e., in this case that she passed the examination. See J.W.C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). But her evidence did not overcome the testimony of the two examiners who gave her failing grades.
Forchion also argues that she failed to perform certain procedures, resulting in the loss of possible points, because she had insufficient notice. Rule 21F-18.02(3), Florida Administrative Code, provides only that an applicant must be given 14 days' notice of the examination. Forchion did not prove that legal notice was not given. In fact, the evidence suggests that Forchion received more than 14 days' actual notice of the procedures to be tested but did not heed the notice.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Cosmetology enter a final order that petitioner Forchion receive a failing grade of 74 on the practical examination and that her application for licensure accordingly be denied at this time.
RECOMMENDED this 2 day of July, 1984, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 2 day of July, 1984.
ENDNOTE
1/ The proposed findings of fact submitted by the parties have been considered and, except to the extent incorporated in these Findings of Fact, rejected as either not having been proved, being contrary to facts proved by the opposing party, or being irrelevant.
COPIES FURNISHED:
Drucilla E. Bell, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Arthur Baron, Esquire
14 East Washington Street Suite 623, Bradshaw Building Orlando, Florida 32801
Ms. Myrtle Aase Executive Director Board of Cosmetology
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301 Mr.
Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 02, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 02, 1984 | Recommended Order | Uphold failing grade for failure to heed notice as to what procedures would be tested and failure to properly perform test. |
