STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCIEN A. JONET, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2373

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on December 16, 1981, in Clearwater, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon a petition filed by Lucien A. Jonet challenging the failing grade he received on the practical portion of the Board of Cosmetology's licensure examination.

APPEARANCES

For Petitioner: Lucien A. Jonet, pro se

12500 Ulmerton Road, Number 16

Largo, Florida 33540

For Respondent: Drucilla E. Bell, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

The Petitioner challenged the examination grade on the basis of specific items set forth in his letter of May 19, 1981. Petitioner and his model testified regarding his qualifications and conditions during the examination affecting his performance in the examination. Petitioner also called the Board's examiners concerning their observations and recollections of the events and the procedures they used in administering the examination. The Board called the examiners concerning the procedures used and a member of the Department staff who prepared the examination instructions.

The evidence developed that the criteria upon which specific items are evaluated are confidential and, in certain instances, the instructions given the examinees do not adequately place them on notice of matters of which they should be aware. This works to the particular disadvantage of examinees who have not attended a Florida cosmetology school in which the Board's examination is simulated for the students.

The evidence also reveals that the Petitioner, while willing to be reexamined, has been denied this right because he initially took this examination with only 600 hours' credit by evaluation. Petitioner, who has been

in the profession for many, many years and has obtained national and international recognition, would be required to take an additional 600 hours of instruction before he could take the examination again.

The evidence revealed the examination's grading procedures are inconsistent with the instructions given the examinees and, therefore, are arbitrary and capricious. The Board should permit Petitioner to be reexamined and take steps to amend its instructions to apprise examinees of the tasks which they must perform to include appropriate instructions to the models regarding what they should and should not do.

The proposed findings have been read and considered and have been incorporated in this order except where they have been determined to be irrelevant or immaterial or not based upon the most credible evidence.

FINDINGS OF FACT

1. Lucien A. Jonet took the practical examination administered by the Board of Cosmetology for licensure on February 17, 1981. Jonet obtained a score of 71.5 percent on this examination in which 75 percent is a passing score.

   
   

2. Jonet lost three points for failure to properly drape his model for Chemical Straightening, Bleaching and Shampooing. The model used by Jonet in the examination stated she moved, loosened and removed the drape at times because of the heat and her personal discomfort. When Jonet was present, he redraped the model; however, as required by the examination procedure, Jonet was not present when the model was examined. The Board's instructions do not advise the models or the examinees that the models should not touch their drapes or towels. The Board's confidential instructions to examiners provide that points be deducted for failure to properly drape the model. At least one of the examiners testified she would take points off for this performance criteria if the drape were loose or the towel off when she checked the model.

   
   

3. Jonet's model had hair that was of minimal length, and Jonet stated her hair was so uneven that it could not be cut to a blended, even length. He gave the model a styled, uneven shag cut. The Board's confidential instructions to the examiners require that examinees' performances be graded on an even, blended haircut with even edges and necklines.

   
   

4. Although the instructions to examinees advise that models should have hair of sufficient length that after an inch has been cut from the hair it may be curled, there are no specific instructions that they will be graded on a blended, even cut. The Board's only instructions to examinees on haircutting at the examination are as follows from the Hearing Officer's Exhibit 1:

   
   

   "We recommend a basic haircut. An extremely short style cut would interfere with the performance of molding and pin curl portion of your exam.

   
   

   You may use the hair cutting implements of your choice.

   
   

   Any hair falling on the floor must be cleaned up before grading.

   
   

   Are there any questions?"

   The examiners also stated that the examinees should report problems with their models' hair that would affect the examinees performances, and that when such problems existed they would not deduct points. However, the instructions to the examinees do not contain this caveat. Jonet lost eight points on haircutting: two points for gaps left behind his model's ears, two points twice for an uneven neckline, and two points for uneven blending of the hair.

   
   

5. One of the examiners stated that the last portion of the curriculum for most Florida cosmetology schools is spent in simulation of the Board's examination, and that these schools are well versed in the specific criteria which the Board uses in assessing performance.

   
   

6. Jonet had sought a reexamination but was denied because he had taken the first examination with 600 hours of evaluated credit, and the Board's rules require a person with only 600 hours of school who fails the examination to finish another 600 hours. The Board denied Jonet the opportunity to seek an added 600 hours of evaluated credit.

   
   

7. Jonet has more than 40 years' experience in cosmetology, is a graduate of a European program, was licensed in Illinois prior to an examination being required, and held an Illinois license for 23 years.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Board of Cosmetology has been delegated the authority to regulate the practice of cosmetology in Florida under the police power of the State. The Board has been authorized to examine applicants for licensure to determine if they are qualified, and to adopt rules and regulations regarding the examination of applicants. Because all of the Board's authority to examine applicants is grounded in the police power, all of the matters related to the examination must be reasonable and related to the ultimate aim of protecting the public, and may not be arbitrary or capricious.

   
   

9. The Board has published a manual for the use of its examiners. This manual expands upon the general data contained in the rules, provides specific individual tasks to be assessed, and breaks down further the number of points assigned to each task. These specific tasks are restated on the examiner's score sheet, Respondent's Exhibits 1 and 2. Again, the assignment of points in this manual is related to the criticality of the task in performing the service competently and safely. The nature of the manual for examiners is such that details regarding the tasks to be performed would compromise those portions of the examination assessing the examinee's judgment. However, the instructions given examinees must be sufficient to permit the examinees to perform the tasks properly without unfairly penalizing the examinee.

   
   

10. In several instances, two specifically at issue in this case, the instructions do not fairly advise the examinee of the tasks he or she is to perform. In the major performance areas of Chemical Straightening, Hair Bleaching, Hair Tinting, Shampooing and Hair Shaping the failure to drape properly is a deficiency. The examiners testified that this was an ongoing requirement; that is, points would be deducted at any time for failure to drape properly. Neither examiner had any recollection of the specific events that led to the deduction of points for improper draping; however, at least one examiner stated she would deduct points at anytime the drape was not proper.

11. The model stated she loosened or removed the drape and towel frequently because of the heat. Jonet stated he redraped the model as necessary when he was present. Neither the examinee nor the model was instructed that the model should not touch the drape or towel. Under the examination procedure the candidate is required to leave the area when the general performance task is complete.

    
    

12. Under these circumstances the model may, as Petitioner's model did, interfere with the examinee's drape and cost the examinee points while the examinee is not present. This is unfair. It would not compromise any portion of the examination to instruct models not to touch or adjust their hair, drapes or towels.

    
    

13. Similarly the confidential assessment criteria for haircutting relate specifically to the examinee cutting the hair in a blended, even cut. The examiners stated that if an examinee had a model with very uneven hair which could not be blended, the examinee could bring it to the examiners' attention and points would not be deducted. However, there are no instructions to this effect in the examination manual. Further, while recommending a basic haircut, the instructions do not require such a cut be given, yet the examiners using the confidential grading criteria penalize any cut except a simple basic haircut. These instructions are misleading in light of the specified performance criteria.

    
    

14. Requiring the examinee to give a simple basic haircut would not compromise the performance criteria. Instructing examinees that if the condition of their models' hair would interfere with giving the models a simple basic haircut they should bring it to the examiners' attention would not compromise the performance criteria.

    
    

15. The instructions are inconsistent with the grading criteria for draping and haircutting, and to that extent are arbitrary and capricious. Petitioner had a total of 11 points deducted for the two criteria above. Had he received credit for these points he would have made more than 75 points on the examination. It cannot be determined that Petitioner would have performed satisfactorily had appropriate instructions been given. Therefore, it would not be appropriate to simply increase his grade. It is inappropriate to deny him a retest in light of these facts.

    
    

16. An examination must be fair. It is inherent that the person examined be given basic instructions for properly accomplishing the tasks required. The instructions should not be ambiguous and certainly should not lead the examinee to error. In the instance of the drape, above, a simple instruction to the model not to touch the drape or towel would prevent her from causing an examinee to lose points. In the instance of the haircut, rather than recommending a simple basic cut, it would be more consistent with the criteria upon which the examinee is graded to require a simple basic cut.

    
    

17. The Hearing Officer has considered the proposed findings 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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Lucien A. Jonet be permitted to take the Board of Cosmetology's examination again, and that the instructions for the examination be amended to fairly advise examinees of the examination's actual requirements and instruct the models not to touch or interfere with their hair, drapes or towels.

DONE and ORDERED this 14th day of January, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 14th day of January, 1982.

COPIES FURNISHED:

Mr. Lucien A. Jonet 12500 Ulmerton Road, #16

Largo, Florida 33540

Drucilla E. Bell, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002373

Orders for Case No: 81-002373