STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY M. LANG, )

)

Petitioner, )

)

vs. ) Case No. 97-3466

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida on December 2, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Lydia S. Castle, Esquire

Gulfcoast Legal Services, Inc. 641 First Street South

St. Petersburg, Florida 33701

For the Respondent: R. Beth Atchison, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Petitioner should be given credit for all or any of her answers to the questions challenged from the November 20, 1996, Cosmetology Written Clinical Examination.

PRELIMINARY STATEMENT

By Examination Grade Report dated December 12, 1996, the Department of Business and Professional Regulation’s Bureau of Testing (Bureau), advised the Petitioner, Kimberly M. Lang, that she had achieved a score of 69 on the written clinical portion of the November 20, 1996 cosmetology examination. Since the minimum passing score was 75, she did not pass the examination. By undated letter received in the Bureau on February 26, 1997, Ms.

Lang requested an administrative hearing to contest the score she received. This hearing ensued.

At the hearing, Petitioner testified in her own behalf. As authority for her answers, she referred to a textbook from which, at the request of the undersigned, she submitted pertinent extracts which have been marked and admitted as Petitioner’s Composite Exhibit A. Respondent presented the testimony of Carol

E. Nealy, a licensed cosmetologist. Respondent also introduced Respondent’s Exhibits 1 through 4.

A transcript of the proceedings was furnished. Subsequent to the receipt thereof, counsel for both parties filed Proposed Findings of Fact which have been carefully considered in the preparation of this Recommended Order. It is noted, however, that Petitioner’s counsel’s post-hearing submittal did not address all the questions contested at hearing.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Board of Cosmetology was the state agency responsible for the examination and licensing of cosmetologists and the regulation of the profession of cosmetology in this state. Petitioner is a graduate of cosmetology school who took the written clinical portion of the cosmetology licensing examination administered on November 20, 1996.

2. By Examination Grade Report issued in December 1996, Ms. Lang was advised she had earned a score of 69 on the examination. Since the passing score for the cosmetology exam is 75, Petitioner failed the examination. Thereafter, Petitioner requested a formal hearing at which she contested the score that she received on questions 15, 20, 24, 28, 30, 34, 35, 39, 56, 66, 69, 71, 72, 91, and 95.

3. Question 15 deals with the appropriate time for tweezing the eyebrows of a client who comes in for an arch and brow tint. Though the Petitioner answered with “B,” (after softener), the correct answer to this question is “A,” (after tinting). Authority for this answer is found on page 413 of Regents/Prentis Hall Textbook of Cosmetology, Third Edition. This authority indicates that tweezing takes place after application of softener in a regular eyebrow arch. The question in issue relates to tinting. Since the client may be allergic to tint, the operator should tint before tweezing and opening the pores thereby. The

   Petitioner’s authority treats arching (tweezing) and tinting separately.

4. Respondent’s authority suggests arching a week before or a week after the tint. In any case, it is clear that the procedures should not be done at the same sitting. The question posed on the examination implies they are. Petitioner’s answer to the question asked, however, is contradictory to the premise that the tinting should be done before the arching, and, therefore, the correct answer is “A.”

5. Question 20 relates to the use of a proper color to lighten natural blonde hair which has darkened over the years. The correct answer to this question is “B,” (at the end of the treatment). However, Petitioner’s answer was “D,” (immediately after applying color to the scalp area). The authority for the Board’s answer is found in Milady’s Van Dean Manual at procedures

   6 through 8, found on page 198. However, a careful review of that authority reflects it to read:

6. Process the tint according to the strand test results.

   
   

7. Apply the tint mixture to the hair near the scalp, being careful to avoid contact with the scalp.

   
   

8. Apply the tint to the hair ends.

A reasonable interpretation of this listing could result in the conclusion being drawn that it is appropriate for color to be applied to ends immediately after it is applied “to the hair near

the scalp.” Under the circumstances here, the Board’s authority can reasonably be interpreted to support the Petitioner’s answer.

1. Question 24 seeks the proper volume of peroxide to be used in the color formula in the circumstances cited. The Board’s correct answer to this question is “A” (10), whereas Petitioner listed “B” (20). The Board cites as its authority for its position that portion of the Regents/Prentice Hall Textbook found at the bottom of page 278 which reads:

   If you are going from a lighter level to a darker one, use a reduced volume, such as 10. In this system, it is assumed that for every

   10 volume of developer used, you achieve one level of lightening action. The color you select will determine the amount of deposit achieved and the color of that deposit.

   
   

2. Here, the question deals with depositing color to hair to restore a darker shade. The Board’s expert, Ms. Nealy, indicates that 10 volume deposits color to hair. Anything more gives less color. Petitioner claims 20 volume, which is most commonly used unless there is a serious problem, lifts the hair and lasts longer. However, her citation of authority furnished subsequent to the hearing appears to relate to a product-specific situation. The entire citation is not included in the materials furnished, and it is impossible to effectively evaluate Petitioner’s thesis and authority. Based on the materials furnished, the Board’s answer is deemed correct.

3. Question 28 asks for identification of the appropriate solution to be applied to the end of hair to achieve even color

   results. Petitioner indicated the answer as “C” (pre-softener), whereas the Department’s correct answer was “B” (penetrating conditioner). Both of the Board’s references refer to the use of a filler as appropriate. A filler is defined as a product used to deposit color on damaged or porous hair so that the overall color is even, which is what is desired here. A conditioner filler is used to recondition damaged hair before salon service and may be applied either in a separate procedure or immediately prior to color application.

4. Petitioner also submitted authority for her answer. However, the authority to which she refers relates to the use of a pre-softener for gray hair which is not a part of the question posed in the examination. Further, pre-softeners deal with hair curl, not color, which is at issue here. Her answer is incorrect.

5. Question 30 tests the examinee’s knowledge of the proper steps to match a client’s hair which had been lightened but has grown back darker. The Petitioner indicated that “B” (divide the hair into sections for control), is the appropriate answer. The Board indicates that “C” (equalize the porosity of the hair), is correct. In the Board’s expert’s opinion, dividing the hair, as suggested by Petitioner, deals more with cutting, rather than coloring. Coloring should be equal throughout the hair, not applied to divided segments. Board references are found in Milady’s Textbook at page 302, and in the Prentice Hall

   textbook at page 277. Whereas Respondent’s written authorities do not clearly support its position, Petitioner’s authority does so. At best, Respondent’s supporting evidence is inconclusive, and Petitioner appears to have satisfactorily supported her answer.

6. In question 34, the Board seeks to test the examinee’s knowledge regarding the proper procedural steps to achieve natural color for a client whose hair has been previously bleached and toned. Whereas Petitioner indicated the first step is to (apply conditioner to porous ends), answer “A,” the Board’s correct answer is (perform a strand test), answer “C.” The use of a strand test first will permit the cosmetologist to determine how the client’s hair will react to certain products and should always be performed. Petitioner’s answer is incorrect.

7. Question 35 relates to the same factual situation as posed in Question 34. Here, however, the Board wants to know what products are mixed to create a highlighting shampoo. The Board’s correct answer is “A” (aniline derivative tint, developer, and shampoo), whereas Petitioner chose as her answer “D” (water, developer, and shampoo).

8. The Board’s two references, cited previously, support its answer defining a highlighting shampoo as a mixture of shampoo and hydrogen peroxide. Hydrogen peroxide is the same as a developer. Water provides no lift to the color, and Petitioner’s answer is, therefore, incorrect.

9. Question 39 relates to the process for lightening a client’s gray and resistant virgin hair, and requires the examinee to select the proper pre-softener. Petitioner chose answer “C” (temporary rinse), whereas the Board’s correct answer is “A” (hydrogen peroxide). Gray hair is generally resistant to color. The Board’s references, cited previously, indicate that peroxide can lift the hair cuticle to make it more receptive to a tint. Petitioner provided no reference to dispute this, and her answer is incorrect.

10. Question 56 seeks to determine the proper strength of a chemical product to use for a chemical blow-out on a client whose hair was tinted the week previously. Petitioner selected “C” (regular), whereas the Board’s correct answer is “B” (mild). According to Ms. Nealy, the Board’s expert, when treating

    African-American hair which has never had a chemical relaxer applied, even when using a mild tint, the operator should use a mild relaxer, rather than regular, to avoid damage to the hair.

11. Petitioner chose regular because, according to the terms of the question, the client’s hair was in good condition. Had there been any reference to damage, she would have chosen mild. In her opinion, different product companies label the strength of their product differently.

12. Hair which has been colored is not necessarily damaged by the coloring. However, since a chemical has been applied to the hair to color it, the operator must be careful in using

    additional chemicals and must use the least strength that will do the job without causing damage to the hair. For this reason, the Board’s answer is correct.

13. Question 66 refers to a client with long, strong hair which, reportedly, has been resistant to prior efforts at applying a permanent, and asks how best to produce a lasting curl. Whereas the Board’s correct answer is “D” (shape the hair before the perm and process on medium rods), Petitioner selected “B” (process on medium rods and shape the hair after the perm).

14. The Board’s expert contends that since the question does not reflect that the customer also sought styling, her hair should be shaped before the perm because after the perm has been applied, the hair will be curly and the operator may miscut it. Though not mentioned as a part of the question, Ms. Nealy noted that springy hair cut after a perm will, in 9 out of 10 cases, result in the cutting of more hair than is desired. Cutting after the perm is also recommended in Milady’s at page 200.

15. Petitioner chose to shape the hair after the perm because, she contends, if it is shaped before the ends are straight, it will be hard to roll the hair. She refers as authority to the same section of the Milady’s text, though a later edition. Review of that provision reveals it to be identical to the provision in the earlier edition relied upon by the Board. Review also reveals that additional considerations, not mentioned in the examination question, qualify that section

    relied upon by Petitioner. Based upon the examination question as written, Petitioner’s answer is incorrect.

16. Question 69 seeks to determine what actions might be taken to prevent hair breakage after the application of a chemical relaxer. Though Petitioner chose “C” (use a conditioning shampoo), the Board’s correct answer is “B” (perform a strand test). Ms. Nealy, the Board’s expert, indicates that whenever a chemical is to be applied to hair, the operator should do a strand test to see if the client is allergic to the chemical and if the hair will take it. Authority for that answer is found in the Prentice Hall Textbook at page 365. Petitioner offered no authority for her choice. It was incorrect.

17. Question 71 seeks the proper temperature for drying hair saturated with an acid-based solution. The Petitioner answered “B” (cool), whereas the Board’s correct answer is “D” (warm). Neither a hot nor a cold dryer is appropriate. A hot dryer may burn the hair, but a cold dryer is less helpful than a cool one. Heat helps penetrate the solution, but a cool dryer will not support penetration.

18. Petitioner chose her answer, cool, so that the acid- based solution would penetrate and relax the hair. Nonetheless, the authorities cited by both parties indicate that some heat is required. If external heat is used, it should be used at a warm setting. Petitioner’s answer, therefore, is incorrect.

19. In question 72, the examination seeks information as to why some of the client’s hair remained curly after a relaxing treatment. The Board’s correct answer is “C” (subsections were too large), but Petitioner chose “B” (solution was too mild.) According to the Board’s expert, if an operator treats too large a section of hair at one time, the relaxer may not work sufficiently and may leave some curl in the hair. Petitioner’s answer, indicating that the solution was too mild, may achieve the desired result, but use of a stronger solution adds risks to the hair which need not be assumed if the size of the work section is reduced. Therefore, the Board’s answer is the better one.

20. Question 91 calls for classification of terms. The Board’s correct answer is “A” (back combing), whereas Petitioner chose “D” (styling). The Board’s expert referred to styling as the final touch, and claims that back combing, a method of combing hair, includes such procedures as teasing, ratting, and French lacing. Authority for the Board’s position is found in Milady’s at page 143, and in the Prentice/Hall Textbook at page

198. Petitioner’s cited authority supports the Board’s position.

1. Question 95 asks why a client’s hair does not hold curl. Petitioner claimed the answer is “B”, (too much elasticity), while the Board’s correct answer is “C”, (too much moisture). A thermal curl is a hot curl using a curling iron. Too much elasticity in the hair, as suggested by Petitioner, has

   little to do with why the curl won’t hold. Elasticity, as cited by Petitioner, is the ability of hair to return to normal after being stretched, and it has nothing to do with retaining too much curl. In a thermal curl, moisture is the controlling factor.

   Dry hair is necessary for a successful curl. For this reason, Petitioner’s answer is incorrect.

2. All questions asked on the examination in issue are within the scope of the expected knowledge of a candidate for licensure as a cosmetologist. They are basic, entry-level questions.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

4. Petitioner seeks to have her answers to the questions cited herein declared correct, and a determination made that she achieved a passing grade on the examination in issue. To succeed she must establish, by a preponderance of the evidence, that the examination was faulty or was arbitrarily or capriciously worded; that her answers to the questions challenged were arbitrarily or capriciously graded; or that she was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Harac v. Department of Professional Regulation, 484

   So. 2d 1333, 1338 (Fla. 3DCA 1986).

5. With the exception of her answers to questions 20 and 30, Petitioner has failed to carry her burden. The examination was neither faulty nor arbitrarily or capriciously worded. Her answers were not graded in an arbitrary or capricious manner, and with the exceptions cited, the grading process was devoid of neither logic nor reason. In the case of questions 20 and 30, however, her answers were deserving of credit and credit should be awarded for those answers.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final order sustaining the grades given for all questions except numbers 20 and 30 on the December 1996 Cosmetology examination, and that she be given credit for questions numbers 20 and 30.

DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998.

COPIES FURNISHED

R. Beth Atchison, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

Lydia S. Castle, Esquire Gulfcoast Legal Services 641 First Street South

St. Petersburg, Florida 33701

Lynda L. Goodgame General counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Joe Baker Executive Director

Board of Cosmetology 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of 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: 97-003466

Orders for Case No: 97-003466