STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELICA ROSS, )

)

Petitioner, )

)

vs. ) Case No. 03-0801

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 7, 2003, by video teleconference, with the parties appearing in Fort Lauderdale, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles F. Tunnicliff, Esquire

Jennifer Westermann, Qualified Representative

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

For Respondent: Angelica L. Ross, pro se

4779 Temple Drive

Delray Beach, Florida 33445

STATEMENT OF THE ISSUE

Whether the Petitioner should receive credit for answers given to certain specified questions on the Cosmetology Examination administered in December 2002.

PRELIMINARY STATEMENT

In a letter dated February 13, 2003, Angelica Ross challenged the determination of the Department of Business and Professional Regulation, Board of Cosmetology ("Board"), that she had failed the December 2002 Cosmetology Examination and requested a formal administrative hearing. Specifically,

Ms. Ross contested the Board's determination that she had incorrectly answered questions 4, 21, 40, 45, and 55. The Board forwarded Ms. Ross's request for a hearing to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was conducted on April 7, 2003.

At the hearing, Ms. Ross withdrew her challenge to question 40, and she proceeded with her challenge to questions 4, 21, 45, and 55. Ms. Ross testified on her own behalf; she offered no exhibits into evidence. The Board presented the testimony of Sharon Holgan and Carol Nealy, licensed cosmetologists under contract with the Board, and Cheryl Farner, a psychometrician employed by the Department of Business and Professional Regulation. Respondent's Exhibits 1 through 3 and

5 through 10 were offered and received into evidence, all of which are confidential and have been placed under seal.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on May 5, 2003,1 and the parties timely submitted proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order,

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Business and Professional Regulation and the Board are responsible for developing and administering the cosmetology examination to candidates who seek licenses to practice cosmetology in Florida. Sections 455.217 and 477.022, Florida Statutes (2002).

2. Ms. Ross sat for the cosmetology examination on December 12, 2002. She received a scaled score of 72 points, which is a failing score. Had Ms. Ross answered two more questions correctly on the examination, she would have achieved a passing scaled score of 75 points.

3. The Candidate Information Booklet provided to candidates for the Cosmetology Examination administered in December 2002 included an explanation of the examination and a

   list of textbooks and other reference sources, among which were Milady's Standard Textbook of Cosmetology-2000 ("Milady's") and Salon Fundamentals: A Resource for Your Cosmetology Career ("Salon Fundamentals"). It was suggested in the booklet that the textbooks might be useful to the candidates and that the candidates might want to review them because the books include information that is "very appropriate for measuring minimum competency on the Cosmetology Licensure Examinations."

4. According to the Board, the correct answer to question 55 is "A"; Ms. Ross chose answer "D." Question 55 is

   clear and unambiguous, and the correct answer was included among the choices provided. The correct answer, while not set forth word-for-word, can be derived from information contained in Milady's and Salon Fundamentals and is also consistent with the practice of the two experts testifying on behalf of the Board.

   Ms. Ross should not receive credit for her answer to question 55 because the answer she gave is not the correct answer.

5. According to the Board, the correct answer to question 4 is "C"; Ms. Ross chose answer "D." Question 4 is

   clear and unambiguous, and the correct answer was included among the choices provided. The correct answer, while not set forth word-for-word, can be derived from information contained in Milady's and Salon Fundamentals. Ms. Ross's attempt to distinguish between "very curly hair" and "curly ethnic hair"

   for purposes of the answer to this question is not convincing; the technique that is described in the answer the Board deems correct would, according to the sources, apply to very curly hair, regardless of the ethnicity of the client. Ms. Ross should not receive credit for her answer to question 4 because the answer she gave is not the correct answer.

6. According to the Board, the correct answer to question 45 is "C"; Ms. Ross chose answer "A." Question 45 is

   clear and unambiguous, and one correct answer was included among the choices provided. The correct answer, while not set forth word-for-word, can be derived from information contained in Milady's and Salon Fundamentals. Ms. Ross's rationale for selecting answer "A" indicates that she was not focusing on the specific procedure identified in question 45. Ms. Ross should not receive credit for her answer to question 45 because the answer she gave is not the correct answer.

7. According to the Board, the correct answer to question 21 is "C"; Ms. Ross chose answer "A." Question 21 is

   clear and unambiguous, and one correct answer was included among the choices provided. The correct answer, while not set forth word-for-word, can be derived from information contained in Milady's and Salon Fundamentals. Ms. Ross's rationale for selecting answer "A" indicates that she was not focusing on the specific information elicited by question 21. The question

   requires the candidate to respond with the proper "sequence of steps" for the procedure, and the answer deemed correct by the Board includes the most logical sequence of steps, given the information contained in Milady's and Salon Fundamentals.

8. Both of the Board's expert witnesses agreed that the answer deemed correct by the Board was, in fact, the correct answer to question 21. One of the Board's expert witnesses testified, however, that she would not shampoo and dry the hair of a black man as part of the sequence of steps for the procedure that is the subject of question 21. This testimony is not sufficient to render the question ambiguous or the selection of answers misleading: First, question 21 does not include reference to the ethnicity of the client, and, second, the answer that the Board deems correct is the only answer that, excluding the reference to shampooing and drying the hair, contains the proper sequence of steps for the specified procedure. Therefore, even if it were inappropriate to shampoo and dry the hair as one of the steps for the procedure that is the subject of question 21, Ms. Ross's answer to question 21 does not correctly identify the sequence of the other steps that should be followed in performing the procedure. Ms. Ross should not receive credit for her answer to question 21 because the answer she gave is not the correct answer.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002).

10. Section 477.019, Florida Statutes (2002), requires that each person desiring to practice cosmetology must be licensed and must have passed an examination designed to test the person's competence.

11. Ms. Ross has the burden of proving by a preponderance of the evidence that the Board's decision to give her no credit for her answers to the challenged questions is arbitrary or capricious or constitutes an abuse of discretion. See State ex rel. Glasser v. J. M. Pepper, 155 So. 2d. 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical Examiners, 101 So. 2d. 583 (Fla. 1st DCA 1958). Based on the facts found herein, Ms. Ross has failed to meet this burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Cosmetology, issue a final order finding that Angelica Ross is not entitled to credit for her answers to questions 4, 21, 45, and 55 of the Cosmetology Examination administered in December 2002.

DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 25th day of June, 2003.

ENDNOTE

1 During her testimony, the Petitioner read into the record that questions at issue herein. Even though the Board did not object when she did so, pages 138 through 147 of the transcript have been sealed to preserve the confidentiality of the questions.

COPIES FURNISHED:

Angelica L. Ross 4779 Temple Drive

Delray Beach, Florida 33445

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Jennifer Westermann Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Nancy Campiglia, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Julie Malone, Executive Director Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 03-000801

Orders for Case No: 03-000801