STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE E. JARMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3847

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on September 16, 1993, in Orlando, Florida.

APPEARANCES

For Petitioner: Vytas J. Urba, Esquire

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Bruce E. Jarman (Representing himself)

1133 38th Street

Orlando, Florida 32805 STATEMENT OF THE ISSUES

Petitioner has challenged the clinical cosmetology examination administered on January 21, 1993, and seeks adjustment of his score to that of a passing score. The issue is whether that relief should be granted.

PRELIMINARY STATEMENT

Petitioner's challenge and request for formal hearing were forwarded to the Division of Administrative Hearings on July 9, 1993. The case was assigned and the hearing proceeded as set forth above.

At the hearing Petitioner testified in his own behalf and presented an additional witness, James Sparrow. Petitioner's exhibits #1-7 were received in evidence without objection.

Respondent presented the testimony of Marilyn Deglomine, qualified as an expert in the practice of cosmetology; Pansey Houghten; and Dr. Rosemary Ammons. Respondent's exhibits #1-3 were received in evidence without objection.

Two joint exhibits were also received: relevant pages from the textbook, Milady's Standard, and the examination questions challenged by Petitioner.

After the hearing the transcript was filed. Petitioner filed a written closing argument and Respondent filed a proposed recommended order. These have been considered in the preparation of this recommended order and the findings of fact proposed by Respondent are substantially adopted.

FINDINGS OF FACT

1. Petitioner, Bruce E. Jarman, graduated from the cosmetology program of Orlando Vocational-Technical Center in December 1992. The school is an institution accredited by the Southern Association of Colleges and Schools. Mr. Jarman's grades were primarily A's in both practical competency and theory, with a few B's and two C's.

   
   

2. Mr. Jarman sat for the January 21, 1993 cosmetology licensure examination and passed two of the three required parts. He did not pass the written clinical part, which required a score of 75. Mr. Jarman's score was initially 71; after his challenge, he was given credit for one additional item and his total scaled score was amended to 72.

   
   

3. At the hearing Mr. Jarman narrowed his challenge to four written questions, #2, #41, #44 and #59. He also presented testimony and argument regarding the scoring and the over-all validity of the examination questions.

   
   

4. Question #2 concerned the specific point at which a cosmetologist must commence timing for the processing of semi-permanent color. The process timing must commence after completing application of the color, since hair length, porous quality and other individual properties affect the time required for application. The textbook does not specifically furnish the right answer to the question; instead, it references the need to follow the product manufacturer's directions. The correct answer is found in those directions and in the understanding that if timing is commenced prior to the completion of application, the processing time might not be long enough. Mr. Jarman answered the question incorrectly.

   
   

5. Question #41 concerned the qualities of over-processed curls. Frizzy hair is distinct from wavy hair. Frizzy hair is straight and very dry-looking due to being damaged. It has no waves when it is dry, and narrow waves when wet, as depicted in the textbook. Mr. Jarman chose the wrong answer.

   
   

6. Question #44 concerned the action to be taken by a cosmetologist who is in the process of bleaching a client's hair when the client exclaims that he likes the color he sees prior to the completion of processing. The proper answer requires an understanding of procedures for lightening hair. Those procedures, including the need to conduct a series of strand tests, are described in the textbook. Mr. Jarman's answer was incorrect as he mistakenly concentrated on the preliminary strand test.

   
   

7. Question #59 concerned the disadvantage of foil frosting versus cap frosting. The cap technique involves pulling clean strands of hair through a perforated cap with a hook. The foil technique requires taking alternating strands from a subsection and wrapping those strands individually in a foil packet. Foil frosting allows the better placement of streaks; it generally is preferred for sensitive scalp and for longer hair. However, the foil technique

   takes about twice as long as the cap technique. Although the textbook does not specifically state the relative merits of one technique over another, anyone who has performed the two techniques should recognize the proper answer. Mr. Jarman concentrated on the effect of chemicals on the scalp and selected the wrong answer.

   
   

8. Each question provided four possible multiple choice answers. Selecting the proper answer required a process of elimination and a choice of the "best" answer. The questions were not ambiguous. Nor, as suggested by Mr. Jarman, did they require experience beyond the "entry-level". As part of their program of instruction, cosmetology students are given practical experience in the techniques to be tested.

   
   

9. The examination taken by Mr. Jarman and his colleague, Mr. Sparrow, was a new examination and the pass rate was substantially lower than for prior examinations. This fact itself does not invalidate the examination. It was devised by a national professional testing firm; it was validated statistically through a mathematical process and was validated for content through a process which relies on the use of anchor items that have appeared in other examinations.

   
   

10. The written clinical portion of the examination was designed to take the place of a practical examination requiring the use of live models. The clinical portion requires candidates to apply theory and judgement learned in their practicing laboratory in school. That is why the answers are not all found verbatim in the textbooks.

    
    

11. In the credible opinions of the Board's several experts, including a psychometrician and an educator/practitioner with almost forty years' cosmetology experience, the January 1993 examination was valid and proper. The process of achieving scaled scores was also valid and proper.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S. and section 455.213(4), F.S.

    
    

13. Section 455.201, F.S. provides that the Department of Business and Professional Regulation shall impose regulation only for the preservation of the health, safety and welfare of the public under the police powers of the state. To that end, persons desiring to be licensed must take an examination that adequately and reliably measures their ability to practice their chosen professional. Sections 455.213(1) and 455.217(1), F.S.

    
    

14. Petitioner has a heavy burden of proving that the score he received was not proper. Florida Department of Transportation v. J.W.C., Inc. 396 So2d 778 (Fla. 1st DCA 1981); Harac v. Department of Professional Regulation, 484 So2d 1333 (Fla 3rd DCA 1986).

    
    

15. Petitioner failed to meet that burden. His criticism of the examination in general was articulate and well-intentioned but was unsupported by competent evidence. Respondent presented individuals with substantial experience and having who explained the process of validating the examination and who established that the examination was valid. As to the four individual questions challenged, Respondent's witnesses' explanations of the correct

answers and how they were scored effectively countered Petitioner's arguments regarding the procedures being tested, the wording of the questions, and the scoring of the questions.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the petition of Bruce E. Jarman, challenging his cosmetology examination score be denied.

DONE AND RECOMMENDED this 14th day of December, 1993, in Tallahassee, Leon County, Florida.

MARY CLARK

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 14th day of December, 1993.

COPIES FURNISHED:

Vytas J. Urba

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Bruce E. Jarman 1133 38th Street

Orlando, Florida 32805

Jack McRay

Acting General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Suzanne Lee 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 to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 93-003847

Orders for Case No: 93-003847