STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY J. FORCHION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2352

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF )

COSMETOLOGY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer Michael Pearce Dodson, held the final hearing in this case on November 16, 1982, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Shirley J. Forchion, pro se

3000 Orange Court, Apartment 85

Orlando, Florida 32805

For Respondent: M. Catherine Lannon, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol Suite 1601 Tallahassee, Florida 32301

These proceedings began on July 30, 1982 when Petitioner, Shirley J. Forchion filed a letter appeal of the grades she received on the practical portion of the June 10, 1982 cosmetology examination in Winter Haven, Florida. The case was thereafter forwarded to the Division of Administrative Hearings on August 26, 1982 for the assignment of a Hearing Officer and the scheduling of a final hearing.

At the hearing Petitioner presented her own testimony and offered Petitioner's Exhibit No. 1 which was received into evidence. Respondent offered Exhibits A-C which were received into evidence without objection. Subsequent to the final hearing Respondent filed a Proposed Recommended Order containing Findings of Fact. To the extent that the proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.

Sonny's Italian Restaurant v. Department of Business Regulation 414 So.2d 1156, 1157 (Fla. 3d DCA 1982).

FINDINGS OF FACT

1. Petitioner has applied to be licensed as a cosmetologist by the Board of Cosmetology of the State of Florida. In pursuit of her application she took the practical examination given by the Department of Professional Regulation, in Winter Haven on June 10, 1982. She received a grade of 66.5 on that portion of the examination. A passing grade is 75.0 or above. Petitioner did pass the written portion of the examination. Because the grade for the written portion is not averaged with the grade for the practical exam, it is irrelevant here.

   
   

2. Ms. Forchion's only experience or expertise in the field of cosmetology comes from her study in a half-year course given at Orange County Vocational Technical School.

   
   

3. Ms. Forchion contests the following grades received on the indicated portions of the practical examination:

   
   

   Shampooing 3.0 of a maximum 5.0 Permanent waving 12.0 of a maximum 20.0 Bleaching 11.0 of a maximum 20.0

   Tinting 13.5 of a maximum 15.0

   
   

4. At the final hearing Ms. Forchion testified that she performed all the procedures properly for each of the areas examined. She did not however, know what the grading criteria to be used by the examiners were. For this reason she was unable to say that her performance met the standards established by the Board of Cosmetology for passing grades. Ms. Forchion's only standards for judging her own work came from her instruction at school.

   
   

5. Respondent presented testimony from two of the examiners who were present at the time and place of Petitioner's examination. They had no recollection of Petitioner's performance on the practical exam and therefore were unable to provide testimony about the adequacy or inadequacy of her performance.

   
   

6. During the shampooing portion of the examination, there was a deficiency in water pressure. The individual examination stations are apparently supplied by a common water main. When all of the examinees attempted to use water at the same time, the supply was inadequate. The Department of Professional Regulation employee supervising the examination asked the examinees to turn their water off in order to allow the pressure to return. This was unnerving to Petitioner because the examination was timed. In spite of the paucity of pressure she was able to complete the shampooing to her satisfaction and she did not claim that the lack of water resulted in an unacceptable performance.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981) and Section 21-11.12, Florida Administrative Code.

   
   

8. The Division of Administrative Services of the Department of Professional Regulation is charged with the administration of examinations for licensure by the professional boards within the Department's jurisdiction. Section 455.217(1), Florida Statutes (1981) provides:

   1. The Division of Administrative Services of the department shall provide services for the preparation and administration of all examinations.

      1. The Division shall ensure that the examinations adequately and reliably measure an applicant's ability to practice the profession regulated by the department

         and shall seek the advice of the appropriate board in the preparation and administration of the examinations.

         
         

9. The Board of Cosmetology has established in Section 21F-18.03, Florida Administrative Code the parameters for the practical examination in cosmetology. They are:

   
   

   1. The Department shall prepare, administer, and grade the practical examination which shall be performed on mannequins. The mannequin practice exam shall be implemented with the July, 1982 examination. The practical demonstration shall be divided into eight (8) areas with the following weight assignment:

      CATEGORY POSSIBLE

      POINTS

      1. Chemical Relaxing/ Straightening 16

      2. Hair Bleaching 16

      3. Hair Tinting 16

      4. Permanent Waving 16

      5. Thermal Work 15

      6. Hairshaping 6

      7. Sanitation 3

      8. Formal Preparation

         and Selection 11

         The criteria to be used by the Examiner in grading the practical demonstration of competency shall be as follows:

         Application techniques; tools and equipment; areas of application, partings, chemical relaxing/straightening results; test

         curl results; protection for the patron.

   2. Passing Grade. Those individuals achieving a score of 757 or better on both the written and practical parts of the

   examination will have attained a passing grade.

   (7) An accurate record of each examination shall be made and the record, together

   with all examination papers shall be filed with the Secretary of the Department and shall be kept for reference and inspection for a period of not less than two (2) years immediately following the examination.

   
   

10. The undersigned notes parenthetically that he is unable to resolve the discrepancies between the maximum possible points established in the rule for

    particular portions of the practical examination with the maximum possible points for the June 10, 1982 examination established above in the foregoing Findings of Fact. That discrepancy however, is not an issue here.

    
    

11. Petitioner simply disagrees with the judgment exercised by her examiners in grading her performance. Had she been able to testify that she knew the grading criteria set out in Section 21F-18.03(3), Florida Administrative Code and that her performance judged on those criteria was satisfactory she might have prevailed here. The Respondent was unable to produce evidence to substantiate the grades given Petitioner. Neither of the examiners who graded her could remember her performance. Apparently the Department retains no physical evidence (other than grade records) of an examinee's performance on the practical section of the cosmetology exam.

    
    

12. Such evidence was not required here however, because Petitioner was unable to establish a prima facie case of successful performance on the examination. State ex rel. Glasser v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963); In re Altchiler, 4 FALR 724A (Fla. Board of Dentistry, Final Order, January 16, 1982); Chokhawala v. Department of Professional Regulation, (Florida Division of Administrative Hearings, Case No.: 81-2950, Recommended Order, August 26, 1982). Petitioner's complaint about a lack of water pressure during the shampoo portion of the test was nullified by her testimony that the lack of water did not hinder her performance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Board of Cosmetology enter a Final Order denying the application of Shirley J. Forchion for licensure as a cosmetologist because she failed to successfully pass the practical portion of the cosmetology examination as required by Section 477.019(1)(c), Florida Statutes (1981).

DONE and RECOMMENDED this 6th day of December, 1982, in Tallahassee, Florida.

MICHAEL P. DODSON

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 6th day of December, 1982.

COPIES FURNISHED:

Shirley J. Forchion 3000 Orange Court

Apartment 85

Orlando, Florida 32805

M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Suite 1601 Tallahassee, Florida 32301

Myrtle Aase, Executive Director Florida Board of Cosmetology

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

SHIRLEY J. FORCHION,

Petitioner,

vs. CASE NO. 82-2352

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY,

Respondent.

/

FINAL ORDER

This matter concerns a dispute between this agency and an unsuccessful cosmetology examination applicant regarding the examination grade awarded on the practical portion of the cosmetology examination. A formal hearing in this matter pursuant to Section 120.57 (1), Florida Statutes, was held on November 16, 1982 in Orlando, Florida before a Hearing Officer of the Division of

Administrative Hearings. On December 6, 1982, the Hearing Officer submitted his Recommended Order to the Board of Cosmetology.

After examining the Recommended Order and considering other argument, the Board of Cosmetology hereby adopts the Findings of Fact and the Recommendation of the Hearing Officer's Recommended Order. In addition, the Board of Cosmetology hereby rejects paragraphs three (3), four (4) and all but the first sentence of paragraph five (5) of the Conclusions of Law in the Recommended Order, and hereby adopts modified Conclusions of Law as follows:

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981) and Section 21-11.12, Florida Administrative Code.

   
   

2. The Division of Administrative Services of the Department of Professional Regulation is charged with the administration of examinations and licensure by the professional boards within the Department's jurisdiction. Section 455.217(1), Florida Statutes (1981) provides:

   
   

   1. The Division of Administrative Services of the department shall provide services for the preparation and administration of all examinations.

      1. The Division shall ensure that the examinations adequately and reliably measure an applicant's ability to practice the profession regulated by the department

         and shall seek the advice of the appropriate board in the preparation and administration of the examinations.

         
         

3. The Board of Cosmetology has established in Rule 21F-18.03 (3), Florida Administrative Code, the parameters for the practical examination in cosmetology. The rule in effect at the time of the June 10, 1982, examination was:

   
   

   1. The practical examination shall be prepared, administered, and graded by the Department. The examination shall consist of practical demonstrations performed by the examinee in the following areas with the following weight assignments. In each demonstration the examinee shall follow

      standard procedures for sanitation and patron protection:

      
      

      CATEGORY	POSSIBLE POINTS
      1. Chemical Straightening	20
      2. Hair Bleaching	20
      3. Hair Tinting	15
      4. Permanent Waving	20
      5. Hair Shaping	15
      6. Hairstyling (arranging)	5
      7. Shampooing	5

      The criteria to be used by the examiner in grading the practical demonstration of

      competency shall be drawn from the following areas of consideration:

      1. Handling of tools and equipment

      2. Sub-partings for chemical services

      3. Application of chemicals

      4. Test curl results

      5. Blended haircuts

      6. Hairstyling techniques

      7. Sanitation and patron protection

   
   

4. When an applicant challenges the grades she received on a professional licensing examination, she has the burden of showing by a preponderance of the evidence that the grades were arbitrarily or capriciously given, State ex rel. Glasser v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963), or that examination was not graded uniformly or fairly. State ex rel. Lane v. Dade County, 258 So.2d

   347 (Fla. 3rd DCA 1972). Petitioner has not met that burden of proof. She has shown only that she disagrees with the professional judgment of the examiners. See State ex rel Glasser v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963).

   
   

5. Thus, Petitioner was unable to establish a prima facie case of successful performance on the examination. State ex rel. Glasser v. Pepper, 155 So.2d 383 (Fla 1st DCA 1963). In re Altchiler, 4 FALR 724A (Fla. Board of Dentistry, Final Order, January 16, 1982); Chokbawala v. Department of Professional Regulation (Florida Division of Administrative Hearings, Case No. : 81-2950, Recommended Order, August 26, 1982). Petitioner's complaint about a lack of water pressure during the shampoo portion of the test was nullified by her testimony that the lack of water did not hinder her performance.

THEREFORE IT IS ACCORDINGLY ORDERED AND ADJUDGED THAT:

The application of Shirley J. Forchion for licensure as a cosmetologist is hereby DENIED because she failed to successfully pass the practical portion of the cosmetology examination as required by Section 477.019 (1)(c), Florida Statutes (1981).

DONE and ORDERED this 22nd day of April, 1983.

BOARD OF COSMETOLOGY

Myrtle Aase Executive Director Board of Cosmetology

Copies furnished to:

Shirley J. Forchion

3000 Orange Court, Apt. 85

Orlando, Florida 32805

M. Catherine Lannon, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Michael Pearce Dodson Hearing Officer

Division of Administrative Hearings

Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

TRG/rlc 4/14/83

Docket for Case No: 82-002352

Orders for Case No: 82-002352