STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRACY D. SCHUTTE, )

)

Petitioner, )

)

vs. ) CASE NO.80-224

) STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

BOARD OF COSMETOLOGY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in Clearwater, Florida, commencing at 2:00 p.m. on April 3, 1980.

APPEARANCES

For Petitioner: Tracy D. Schutte, pro se

1960 Byram Drive

Clearwater, Florida 33515

For Respondent: Drucilla E. Bell, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301 ISSUE

Whether cosmetology licensure should have been denied Petitioner.

INTRODUCTION

The Petitioner, Tracy D. Schutte, failed to pass the written theoretical part of the State's cosmetology examination in July of 1979. Thereafter, she sat for the next examination on theory and once again failed. Petitioner returned to school, but she then failed the written theoretical portion of the examination for a third time. After she was denied licensure for the third time, Petitioner requested an administrative hearing.

Subsequent to the hearing, Respondent submitted proposed findings of fact and a memorandum of law. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

FINDINGS OF FACT

1. Petitioner Schutte satisfied the requirements which enabled her to sit for a cosmetology examination. She took the examination given in July of 1979 and passed the practical portion with a grade of 80, but she failed the written theoretical portion with a grade of 69. In October of 1979, Petitioner again took the theoretical portion of the cosmetology examination and failed with a grade of 72. She returned to cosmetology school and took forty (40) hours of remedial training. Thereafter, in December of 1979, Petitioner took the theoretical portion of the examination for the third time, on this occasion failing with a grade of 71. A passing grade of 75 is required for licensure.

   
   

2. Petitioner Schutte has been employed in the cosmetology business owned by Leni Nelson since December of 1979. She has satisfied her employer with her work in the limited area of cosmetology she is allowed to perform without licensure. Ms. Nelson has found Petitioner to be interested in her work and concerned with the welfare of the customers, and she hopes that the problem Petitioner has encountered with the written examination can be resolved.

   
   

3. Petitioner Schutte did not notify the Respondent Board that she had difficulty in reading written examinations, although she took three (3) consecutive written examinations. After consideration of the evidence and hearing testimony presented at the formal hearing, the Hearing Officer finds that Petitioner has a reading problem and therefore is at disadvantage in taking written examinations.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

   
   

5. Chapter 477, Florida Statutes, states the reason for regulating cosmetology is that the practice involves the use of tools and chemicals which may be dangerous if improperly applied, and therefore it is in the interest of public health to regulate the practice. Section 477.019 sets forth the requirements for licensure of a cosmetologist and states that in order to become licensed a person must be at least sixteen (16) years of age or has received a high school diploma, has received a minimum of 1200 hours of training at a school of cosmetology approved by the Department of Professional Regulation, and has received a passing grade on an examination administered by the Department. Petitioner has fulfilled the first two (2) requirements but has failed the written examination.

   
   

6. Section 477.022, Florida Statutes, requires the Florida Cosmetology Practice Commission to specify by rule the general areas of competency to be covered by examination for licensure and requires the rules to include the relative weight assigned in grading each area, the grading criteria to be used by the examiner, and the score necessary to achieve a passing grade. The Commission is required to insure that the examinations adequately measure both the applicant's competency and knowledge of related statutory requirements. Section 477.022(3) requires a written and practical examination be given at least once yearly and at such other times as the Department of Professional Regulation shall deem necessary. The Board of Cosmetology together with the Secretary of the Department or designee constitutes the Cosmetology Practice Commission and is responsible for making rules. The Commission has adopted Rule 21F-6.03, Florida Administrative Code, which requires a written demonstration of

   competency in the theory of cosmetology and requires a passing grade of 75 percent or better on both the written and practical parts of the examination.

   
   

7. Rule 21F-6.04(6), Florida Administrative Code, provides:

   
   

   (6) An applicant may use a reader or interpreter of his/her choice provided he/she is not a license holder under this Act.

   
   

8. Petitioner may use a reader or interpreter under the foregoing rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends the following:

1. Deny licensure to the Petitioner, Tracy D. Schutte;

   
   

2. Notify the Petitioner that she may take the written portion of the examination again using a reader of her choice pursuant to Rule 21F-6.04(6), Florida Administrative Code.

DONE and ORDERED this 16th day of May, 1980, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Drucilla E. Bell, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Ms. Tracy D. Schutte 1960 Byram Drive

Clearwater, Florida 33515

Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-000224

Orders for Case No: 80-000224