STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGETT Y. WASHINGTON,

Petitioner,

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Respondent.

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) Case No. 02-1184

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on June 06, 2002, by video teleconference with sites in Orlando, Florida, and Tallahassee, Florida.

APPEARANCES

For Petitioner: Bridgett Y. Washington, pro se

2019 Terhune Avenue

Orlando, Florida 32818-5264

For Respondent: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202 STATEMENT OF THE ISSUE

Should Petitioner be given credit for answers scored as incorrect on questions which Petitioner challenged on the October 2001, Cosmetology Clinical Examination?

PRELIMINARY STATEMENT

October 25, 2001, Petitioner sat for the Assessment Systems, Inc. (ASI) Cosmetology Examination comprising of clinical and theory subparts. Petitioner received a passing grade on the theory subpart of the Cosmetology Examination but received a failing score of 70 on the Cosmetology, Clinical subpart of the Examination. Petitioner requested a review of her answers to certain questions, which were graded as incorrect. As a result of this review, Petitioner received an additional three points or a score of 73. However, the score of

73 is also a failing score. By an undated letter received by the Department of Business and Professional Regulation (Department) on March 5, 2002, Petitioner requested a formal hearing in this matter. By letter dated March 19, 2002, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Petitioner testified in her own behalf but presented no other witnesses. Petitioner's Exhibits 1, 2, 4, and 4-A were received in evidence. The Department presented the testimony of Carol Nealy, Este Lita Phelps, and Cheryl Farmer.

Although the Department's Exhibit 5 was identified, the

Department's Exhibit 5 was not offered in evidence. The Department did not offer any other exhibit in evidence.

A Transcript of this proceeding was filed with the Division on July 10, 2002. The Department timely filed its Proposed Recommended Order. Petitioner elected not to file a proposed recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Examination for licensure as a cosmetologist is administered by the Department's Bureau of Testing and consists of two parts: Part One, Clinical; and Part Two, Theory.

2. Petitioner passed Part Two, and Part Two is not in contention.

3. A passing score on the Clinical part of the examination was 75. Petitioner received a failing score of 70.

4. Petitioner challenged the answers to certain questions on the Examination and was awarded an additional three points, bringing her total score on the Examination to 73, but still a failing grade.

5. Subsequently, Petitioner requested a formal hearing on this matter, which was referred to the Division.

6. Subsequent to this matter being referred to the Division, the Department agreed to allow Petitioner another review of the test questions and her answers in an attempt to resolve this matter. The Department did not allow any extra points as a result of this review, and the matter proceeded to hearing.

7. Petitioner is challenging seven examination questions, to-wit: questions 14, 23, 36, 37, 40, 52, and 65.

8. The Department utilizes Milady's Textbook of Cosmetology (Milady's) and a textbook titled Salon Fundamentals, A Resource for Your Cosmetology Career (Salon Fundamentals) as a resource for the questions on the Examination and the answers to those questions.

9. Petitioner utilized Milady's during her schooling and in preparation for the Examination. There is some question as to whether Petitioner received notice that Salon Fundamentals, was also a reference source for the Examination. Therefore, the Department did not rely on Salon Fundamentals as a reference source in defending its answers to the challenged questions. There is no dispute that Milady's covered the subject matter sufficiently.

10. Petitioner contends that both (A) and (B) are correct answers to question 14. Petitioner chose (B) as the answer to question 14. The Department contends that there is only one

    correct answer to question 14 and that is (A). After a review of the section entitled "Types of Lighteners" set out in pages 324-325 in Milady's covering the issue presented in question 14, the testimony of the Department's experts, Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (A) is the only correct answer to question 14. Petitioner's answer (B) to question 14 is incorrect.

11. Petitioner contends that both (A) and (B) are correct answers to question 23. Petitioner chose (A) as the answer to Question 23. The Department contends that there is only one correct answer to question 23 and that is (B). After a review of the section entitled "Damaged Hair" set out in pages 346-348 in Milady's covering the issue presented in question 23, the testimony of the Department's experts, Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (B) is the only correct answer to question 23. Petitioner's answer (A) to question 23 is incorrect.

12. Petitioner waived her challenge to question 36 and elected not present any evidence on question 36.

13. Petitioner contends that (D) was the correct answer to question 37. The Department contends that (C) is the correct. answer to question 37. After a review of Milady's Chapter 11, Permanent Waving, page 251 covering the issue presented in question 37, the testimony of the Department's experts Carol

    Nealy and Este Lita Phelps, and Petitioner's testimony, answer

    
    

    1. is the correct answer to question 37. Petitioner's answer

       
       

    2. is incorrect.

    
    

14. Petitioner contends that (A) was the correct answer to question 40. The Department contends that (D) is the correct answer to question 40. After reviewing pages 248 through 250 of Milady's, which covered the issue presented in question 40, the testimony of the Department's experts Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (D) is the correct answer to question 40. Petitioner's answer (A) is incorrect.

15. Petitioner contends that (B) was the correct answer to question 52. The Department contends that (C) was the correct answer to question 52. After reviewing page 100, Basics of Haircutting, and page 120, Scissors-Over-Comb Technique of Milady's, which covered the issue presented in question 52, the testimony of the Department's experts Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (C) is the correct answer to question 52. Petitioner's answer (B) is incorrect.

16. Petitioner contends that (C) was the correct answer to question 65. The Department contends that (D) was the correct answer to question 65. After reviewing page 58 (Texture, Porosity, and Elasticity) and page 163, Chapter 9, Wet Hairstyling, of Milady's, which covered the issue presented in question 65, the testimony of the Department's experts Carol

    Nealy and Este Lita Phelps, and Petitioner's testimony, answer

    
    

    (D) is the correct answer to question 65. Petitioner's answer

    
    

    (C) is incorrect.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Subsections 120.57(1), Florida Statutes.

18. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

396 So. 2d 778 (Fla. 1st DCA 1981). To succeed in her challenge to the examination, Petitioner must establish, by a preponderance of the evidence, that the examination was somehow faulty, was arbitrarily or capriciously worded, or that she was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Harac v. Department of Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel Glaser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel Topp v. Board of Electrical Contractors for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner has failed to establish facts to show that the examination was somehow faulty, was arbitrarily or capriciously worded, or that Petitioner was arbitrarily or capriciously

denied credit through a grading system devoid of logic or reason and has thereby failed to satisfy her burden in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's challenge to the October 2001, Cosmetology, Clinical Examination.

DONE AND ENTERED this 9th of August, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2002.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Bridgett Y. Washington 2019 Terhune Avenue

Orlando, Florida 32818-5264

Julie Baker, Executive Director Board of Cosmetology

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulations 1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 02-001184

Orders for Case No: 02-001184