STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA Y. DENNIS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4552

)

STATE OF FLORIDA, )

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF COSMETOLOGY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to appropriate notice, this cause came on for formal hearing on March 1, 1989, before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings in Jacksonville, Florida.

APPEARANCES

For Petitioner: Pamela Y. Dennis, pro se

2221 Dumfries Circle

Jacksonville, Florida 32216

For Respondent: H. Reynolds Sampson, Esquire

Deputy General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

This cause concerns the question of whether the Petitioner should have received a passing grade on the Cosmetology Instructors Examination and therefore whether she is entitled to licensure in that field.

PRELIMINARY STATEMENT

This cause arose upon candidate Pamela Dennis being informed by the Board of Cosmetology that she had not received a passing score on the Cosmetology Instructors Examination. The examination consisted of two parts: a lecture portion and a demonstration portion. She obtained a 66.8 points on the lecture portion and 72.8 points on the demonstration portion, for a total of 139.6 points on the examination. This amounted to 70 percent correct answers, a failing grade, since 75 percent was required to pass the examination. She was informed of this score by the above-named agency and elected to contest her examination score and requested a formal proceeding. The Petitioner contested her score on questions 2, 5, 7, 12, 16 and 17 of the lecture portion of the examination. The Petitioner, in essence, contests the fact that three different examiners grading each question came up with different opinions of her success;

for instance, one examiner might have given her no credit for a particular question, giving her a grade of "n" on that question, signifying no portion of the answer being correct, while another examiner might give her a "p" for a partially correct answer. Her contention is that if, in the instance of these questions, the examiners are split amongst themselves about whether a "no", a "partial" or a "yes" grade should be given, how do the scorers know upon what basis they can give her a "yes" or "no" grade on a particular question, when the examiners themselves differ in their opinions of the response to that question.

The cause came on for hearing, as noticed, at which the Petitioner presented her own testimony and four exhibits consisting of the lesson plans for the demonstration portion of the examination (Petitioner's Exhibits 3 and 4), the criteria for the demonstration portion of the examination package (Petitioner's Exhibit 1) and Petitioner's composite Exhibit 2 consisting of the scoring sheets of the examiners who graded Petitioner's examination (the lecture portion).

At the conclusion of the hearing, the parties requested the right to file proposed findings of fact and conclusions of law, which was accorded them. The parties failed to file these pleadings. Neither the Department nor the Petitioner obtained a transcript of the proceedings.

FINDINGS OF FACT

1. This case arose upon notification to the Petitioner, Pamela Y. Dennis, that she had received a failing grade on the Cosmetology Instructors Examination. Specifically, she received 70 percent on the examination and needed a 75 to pass. She chose to contest this action by the agency in according her a failing score, by contesting her grade on questions 2, 5, 7, 12,

   16 and 17 on the lecture portion of that examination. She ultimately requested and received a formal proceeding before this Hearing Officer.

   
   

2. The Petitioner testified on her own behalf. In essence, the testimony consisted of her contention that as to the contested questions, some of the examiners gave her scores of "yes", meaning that she had answered correctly, while others gave her scores of "no" and others gave her partial credit. Her complaint is, in essence, that if one examiner gave her a "yes" result on a question, why was that grade not accepted in order to give her full credit for the question. She also complained that the comments the examiners gave, when they accorded a "no" score or a partial score for a particular question, are differing in nature and some examiners, as to the same question, made no comment at all. She contends that the examiners' scorings were inconsistent with each other on each of the questions at issue and that therefore, if any examiner gave her a "yes" answer, then she should have received full credit for the answer to that question.

   
   

3. In fact, however, as established by Dr. Eunice Loewe, Ph.D., the examination developer, the Petitioner was accorded credit for all yes or "y" grades given her by the examiners on the questions at issue, as well as all "p", or partial credit, scores given her. She only received no credit at all on a given question if none of the examiners gave her a partial or a "yes" score on that question. In other words, the scoring was not done by grading according to what the majority of examiners gave her for a particular question. If that had been done, she would actually have lost points below that which she actually scored, according to Dr. Loewe, because by a "majority vote" method of scoring, a majority of examiners giving her a "no" grade on a given question, even when some examiners had graded her with a "yes", would prevent her from getting any

   credit at all for that question. That was not done in the grading, according to Dr. Loewe, rather, the Petitioner was accorded credit for all partial or "yes" answers.

   
   

4. The examiners are currently teachers of the same subject matter. They are required to make comment on a candidate's response to a particular question or a portion of the examination when they give her a "partial" or a "no" grade on that question. It is not required that all comments be the same, because this is a demonstration type examination where the grading to a large extent must, by necessity, be somewhat subjective. Because this is a physical demonstration type of examination, the agency, in an attempt to be totally fair with candidates, required the examiners to make these comments if they were not going to give her a "yes" grade on a particular question or area of classroom presentation. In summary, Dr. Loewe established that the Petitioner was a "borderline candidate" who had close to a passing score and upon whose grading the examiners were split as to the questions involved. The point is that if the grades on the questions involved had been by a majority vote of the examiners with no credit being given at all for any question if the majority of examiners did not vote "yes", the Petitioner would have received a lower score.

   
   

5. The fact that the examiners were split on these questions did not in itself penalize the Petitioner because she was given credit for partial or "yes" grades by the examiners. There was no showing that the individual examiner's grades of "no", "yes" or "p" (for partial) on any of the questions at issue were incorrect grades. In fact, a review of the score sheets of the various examiners, in evidence as Petitioner's Composite Exhibit 2, reveals that although some do not make comment on some questions, where others do make comment, and some comments are different, the majority of the examiners grading "no" or "partial" made similar comments about the same question. There was simply no showing by the Petitioner that the method of administration of this examination was unfair, nor that the content of the questions was unfair or biased. It was not demonstrated that the examiners had unfairly scored the lecture demonstration portion of the examination.

   
   

6. Indeed, the Petitioner was a borderline candidate and came close to passing the examination. She had a complete lesson plan as required and presented a fairly thorough lecture. She did not follow the lesson plan closely enough, however, according to a number of the examiners. They indicated by their comments that she seemed to "jump around" and other comments indicated that she relied too heavily on her notes and seemed to read from notes to a great extent in making her lecture presentation. These example comments and others revealed by the testimony of record and the score sheet exhibits reveal that the examiners did indeed give careful consideration to her presentation and they have not been shown to have graded unfairly or in a biased manner.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings. Section 120.57(1), Florida Statutes.

   
   

8. Pursuant to Rule 21F-19.004, Florida Administrative Code, the State of Florida, Department of Professional Regulation, Board of Cosmetology, is charged with administering the Cosmetology Instructors examination. It is charged by rule to obtain examiners from the ranks of qualified cosmetology instructors and using these persons for observing candidates and grading their lecture presentations. The method of composing, administering and grading the

examination at issue, and the selection of the examiners, was shown to comport with the methods mandated by the rule. The examiners' procedures and grades have not been shown to be arrived at in any manner other than fairly or impartially. The Petitioner in this case has the burden to demonstrate, by a preponderance of the evidence, that her examination was unfairly graded or that other reasons exist for altering her grade to that of a passing score, as for instance, that the composition of the examination, its administration or its scoring was not in accordance with the rule mandated methodology incumbent upon the Board of Cosmetology. The Petitioner herein failed to carry that burden to show that she had been so unfairly treated in the grading of her examination.

Accordingly, it must be concluded that the score on her examination is a correct one and she is not entitled at this time to a passing grade on that examination.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is therefore

RECOMMENDED that a Final Order be entered by the Respondent agency determining that the score accorded Pamela Y. Dennis on the Cosmetology Instructors examination was an accurate score and that her petition be dismissed.

DONE and ENTERED this 20th day of September, 1989, at Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1989.

COPIES FURNISHED:

Pamela Y. Dennis, pro se 2221 Dumfries Circle

Jacksonville, Florida 32216

H. Reynolds Sampson Deputy General Counsel

Department of Professional Regulation

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, General Counsel Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Myrtle Aase Executive Director Board of Cosmetology

Department of Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 88-004552

Orders for Case No: 88-004552