STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA A. CRAWFORD PARSON, )

)

Petitioner, )

)

vs. ) Case No. 98-2545

) DEPARTMENT OF BUSINESS AND, ) PROFESSIONAL REGULATION, ) BOARD OF COSMETOLOGY, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 20, 1998, a hearing was held in the Yates Building, City Hall Annex, 231 Forsyth Street, Room 431, Jacksonville, Duval County, Florida, in which all parties and the administrative law judge participated. The case was reconvened and heard December 17, 1998, by video teleconferencing with the administrative law judge being located in the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, together with a witness for the Board of Cosmetology and the remaining parties and court reporter being located at the Jacksonville Regional Service Center, 921 North Davis Street, Building A, Room 300, Jacksonville, Florida. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The case was considered by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Patricia A. Crawford Parson, pro se

Mickey's House of Beauty

1233 South Lane Avenue, Suite 23

Jacksonville, Florida 32205

and

8574 Vining Street

Jacksonville, Florida 32210

For Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUE

Is Petitioner entitled to the receipt of an additional point(s) for her cosmetology examination given by Respondent on December 17, 1997?

PRELIMINARY STATEMENT

Petitioner was noticed by Respondent that Petitioner had received a score of 71 points on the cosmetology examination given December 17, 1997. To pass Petitioner needed to receive a score of 75. Petitioner was granted the opportunity to oppose the results of her examination. Petitioner contested the examination results in writing. That matter was then forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing to resolve the dispute. The hearing took place on the aforementioned dates.

The case was transferred from Stephen F. Dean, Administrative Law Judge, to the undersigned prior to hearing.

At hearing, Petitioner testified in her own behalf and presented Bobby W. Parks, Jr., as her witness. Respondent presented Carol Nealy, Ruth Schneider, and Beth Hildebrand as its witnesses. Respondent's Exhibits No. 1 through 10 were admitted. ALJ Exhibit No. 1 was admitted.

In accordance with Section 455.217, Florida Statutes, Petitioner was granted access to the examination questions and answers she gave to those questions. Through this review Petitioner pointed out the questions for which she had received no credit, based upon the provision of an incorrect answer, according to Respondent. One of those questions for which Petitioner received no credit was question 63. As a result of the review, Petitioner was given credit for the answer she gave for question 63. This raised Petitioner's score to 72. This left in contest the results of the answers which Petitioner gave to questions 19, 24, 25, 30, 46, 50, 55, and 78, which answers had been marked incorrect. Those questions and the answers Petitioner gave to those questions constituted the basis for the formal hearing.

A hearing transcript was prepared. The parties were granted until January 5, 1999, to file proposed recommended orders.

Petitioner submitted a letter for consideration. Respondent filed a proposed recommended order. Both submissions were timely filed. Both submissions have been considered in the preparation of the recommended order.

FINDINGS OF FACT

1. Petitioner was a candidate for the written clinical part of the cosmetology examination given by Respondent on December 17, 1997.

2. Petitioner had requested ADA accommodations for her dyslexia as part of her examination.

3. On December 5, 1997, Respondent through a special testing coordinator of the Bureau of Testing, wrote to Petitioner to inform Petitioner that Petitioner's request for special testing accommodations for the December 17, 1997, cosmetology examination had been approved. Through this correspondence Petitioner was told:

   The following provision(s) have been approved:

   
   

   READER who will also mark your answers on your scan sheet, time and a half, and a private testing area.

   
   

   * * *

   
   

   If you experience any problems at or during the examination, please notify the examination supervisor on site immediately.

   
   

   In furtherance of its commitment, Respondent provided Ms. Ruth Schneider to read the examination questions and the multiple answer choices in the written clinical cosmetology examination given on December 17, 1997. Before serving in the role of reader Ms. Schneider had several hours of training. Ms. Schneider had attended a meeting at the test site. In her orientation,

   Ms. Schneider was instructed concerning any changes in procedures

   from the last time she had worked as part of a group administering examinations, to include the cosmetology examination in this case. Ms. Schneider was informed about how the paper work should be handled in the cosmetology examination at issue, specifically how to protect a candidate's papers.

4. In carrying out her duties in assisting Petitioner at the December 17, 1997 cosmetology examination, Ms. Schneider read Petitioner the questions and choice of answers and marked the letter answer that represented Petitioner's choice for responding to the question. Ms. Schneider did not discuss with Petitioner any possible answer to be given to any question. Ms. Schneider did not suggest an answer to be given. Ms. Schneider was not competent to suggest an answer to be given, not having training as a cosmetologist. Ms. Schneider marked the letter of the answer which Petitioner chose for a given question by using a no.

   2 pencil and bubbling in the circle of the letter chosen for the answer as reflected on the cosmetology examination score sheet for Petitioner. Later, when the score sheet was graded by Respondent by the use of a template placed over the score sheet, in the event the answer given by Petitioner was not the answer deemed by Respondent to be correct, a dashed line would be marked through the answer Respondent found acceptable, with the bubbled- in answer chosen by Petitioner remaining on the answer sheet.

   The bubbling of an answer means that the circle with a letter

   equated to the answer to the specific question would be filled- in.

5. When the examination had been completed both Petitioner and Ms. Schneider executed a form of the Bureau of Testing referred to as an ADA Site Verification Form. In the execution

   of that form Petitioner replied in the affirmative to the following questions:

   
   

   1. Were you provided special provisions as indicated above (this was in relation to Petitioner's time and a half, a reader who will also mark your answers on your scan sheet, and a private testing site)?

      
      

   2. Were you satisfied with the special provisions provided during your examination?

      
      

   3. Were you informed in previous correspondence should you experience any problems at, or during examination, to notify the examination supervisor on site immediately?

      
      

      1. Did a proctor or scribe mark you answers for you?

         
         

      2. If you answered "yes", were your satisfied that your intended answer choices were marked?

      
      

6. Ms. Schneider verified in writing that the special provisions were provided to the candidate as had been referred to above, and that Petitioner did not request the assistance of an examination supervisor during or at the examination.

7. Both Petitioner and Ms. Schneider signed on December 17, 1997, acknowledging the responsibilities of the reader as being:

   The following guidelines have been established for candidates who use a reader during the written examination. This will ensure that their examination questions and answers are accurately read (and answers marked if necessary).

   
   

   The reader CANNOT INTERPRET, RE-WORD, OR PROVIDE ASSISTANCE IN DETERMINING THE ANSWER

   to any test question. The reader may read

   the test question and/or test materials as many times as requested by the candidate. The reader may read the questions in ENGLISH

   ONLY. The reader CANNOT TRANSLATE the examination questions to any other language.

   
   

   Both the candidate and reader will have an examination book, unless the candidate is visually impaired and does not require the use of a book.

   
   

   The question, answer choices and answers will be read to the candidate by the reader.

   
   

   If a scribe is being used (proctor to mark or transfer answers): The reader will verbally re-read the answer choice and answer to the candidate for verification.

   
   

   After a candidate has completed the examination, and time permits, the candidate has the option to review the examination questions and indicated responses.

   
   

   Due to the length of some examinations, it may be necessary for the reader to take a break. During that time the candidate is also to take a break. The same reader should be used during the entire session for continuity.

   
   

8. As stated, Petitioner believes that the answers she gave to questions 19, 24, 25, 30, 46, 50, 55, and 78 were correct. Petitioner had made known her concern about being graded down for her answers to those questions in remarks recorded on the examination review scratch paper, when afforded the opportunity to review the examination results on February 20, 1998. See Section 455.217, Florida Statutes.

9. In addition to Petitioner's testimony concerning her answers to the examination questions at issue, Petitioner presented the testimony of Mr. Bobby W. Parks, Jr., a practicing

   cosmetologist licensed in Florida, who has also served as an instructor in cosmetology at the Franklin Peterson Academy in Duval County, Florida. Mr. Parks offered his testimony concerning the results of the answers which Petitioner gave to questions 24, 46, 50, 55, and 78.

10. In support of its decision to find the answers Petitioner gave to the subject questions to be incorrect, Respondent presented the witnesses Ms. Carol Nealy and Ms. Beth Hildebrand, cosmetologists licensed to practice in Florida who also serve as consultants to Respondent in the periodic preparation and administration of the cosmetology examination.

11. Ms. Carol Nealy and Ms. Beth Hildebrand also pointed to references within the cosmetology profession that are generally accepted in cosmetology school and within the practice of cosmetology to support their respective opinions concerning the propriety of the answers to the subject questions which Respondent deems to be correct.

12. In response to question number 50, Petitioner chose answer: D. pre-softening solution. The preferred answer by Respondent was: C. cream conditioner. In his opinion, Mr. Parks indicated that either answer would suffice. His opinion is accepted. Respondent's experts' opinions are rejected. Petitioner's answer to question 50 is credited.

13. Otherwise, the answers which Petitioner gave to question numbers 19, 24, 25, 30, 47, 55, and 78 are incorrect in

    that Petitioner and Mr. Parks in their testimony are unpersuasive, and Ms. Nealy and Ms. Hildebrand are persuasive in their testimony, supported by references, that the answers

    preferred by Respondent are correct and the answers given by Petitioner are incorrect.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

    
    

15. Petitioner bears the burden to establish her entitlement to additional points on her cosmetology examination given December 17, 1997.

16. Petitioner has borne that burden in relation to the answer given for question 50. Petitioner has failed to prove that she is entitled to an additional adjustment to her score in relation to questions 19, 24, 25, 30, 47, 55, and 78.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which credits the Petitioner for the answer given to question number 50, as well as the earlier credit extended for the answer given to question number 63, and that otherwise denies Petitioner relief.

DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1999.

COPIES FURNISHED:

Patricia A. Crawford Parson 8574 Vining Street

Jacksonville, Florida 32210

Patricia A. Crawford Parson Mickey's House of Beauty 1233 Lane Avenue, Suite 23

Jacksonville, Florida 32210

R. Beth Atchison, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Lynda A. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

Joe Baker, Executive Director Board of Cosmetology Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-1007

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.

Docket for Case No: 98-002545

Orders for Case No: 98-002545