The Issue Whether Respondent's cosmetology license should be disciplined for the alleged violation of Chapter 477, Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Maureen Mitchell, was a licensed cosmetologist in the State of Florida having been issued License No. CL0079246 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was employed at Barry's Place for Hair, a cosmetology salon located in Tamarac, Florida (the "Salon"). On January 22, 1990, Karen Olszewski went to the Salon for a permanent. Ms. Olszewski had previously had permanents without any problems or complications. Respondent was the cosmetologist who gave Ms. Olszewski the permanent on January 22, 1990. After Respondent rolled Ms. Olszewski's hair, she applied the permanent solution in accordance with the manufacturer's instructions. Within a minute after applying the solution, Ms. Olszewski complained that it was burning her scalp. Respondent told her that the solution was heat activated and there was nothing wrong. Ms. Olszewski complained at least two other times while the solution remained in her hair. Respondent did not take any actions to relieve the discomfort. Barry Barton, the owner of the Salon, looked under the bag that had been placed on Ms. Olszewski's head and stated that he did not see any problems. The chemicals remained on Ms. Olszewski's head and scalp for approximately 5 to 10 minutes in accordance with the manufacturer's instructions. When the recommended time had expired, Respondent shampooed Ms. Olszewski's hair. During the rinse, Ms. Olszewski again complained of pain. Barry Barton applied cold cream to the customer's scalp. The application of cold cream to an irritated scalp is not an accepted precaution or remedy for a chemical burn. Respondent did not properly respond to the client's continued complaints of discomfort. Respondent should have immediately stopped the procedure being performed and checked for redness or irritation of the scalp. If the search revealed any indications of a chemical irritation or a burn or if the complaints of discomfort continued, the chemical should have been immediately rinsed with cool water and a neutralizer applied. After leaving the Salon, Ms. Olszewski continued to experience discomfort. She called the Salon and the owner advised her that there was nothing that he could do. Ms. Olszewski went to a dermatologist who treated her for chemical burns on her scalp which were the result of the permanent. Ms. Olszewski experienced some temporary hair loss and had headaches for a couple of weeks following the permanent. There is no scarring or long term damage to her scalp. Respondent's conduct falls below the minimally accepted standards of a licensed cosmetologist. While there is no evidence that Respondent misapplied the chemicals or otherwise failed to follow the manufacturer's instructions, Respondent should have reacted more promptly to the customer's complaints of discomfort and terminated the procedure at an earlier point. Respondent did not make voluntary restitution to Ms. Olszewski for the cost of the permanent or the cost of the medical bills incurred. Ms. Olszewski initiated an action in small claims court for the sums. No evidence was presented as to the results of that legal action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding Respondent guilty of a violation of Section 477.028, Florida Statutes, imposing a $200 fine and requiring Respondent to complete an advanced training course on the use of chemicals in the practice of cosmetology. RECOMMENDED this 9th day of September, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2659 The Petitioner has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Petitioner. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 3 and 4. Adopted in substance in Findings of Fact 3 - 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 9. Addressed in the Conclusions of Law. COPIES FURNISHED: Mark Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Maureen Mitchell, pro se 8100 Northwest 73rd Terrace Tamarac, Florida 33321 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton, Executive Director Department of Professional Regulation Board of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner applied for licensure by examination to practice cosmetology within Florida after having completed 600 hours of instruction in cosmetology. Petitioner took the examination in Winter Haven, Florida, on August 27, 1981. The examination consists of two parts, written and practical, each of which must be passed to obtain licensure. The passing grade on each portion of the examination is 75. Petitioner received a grade of 85 on the written and 73.5 on the practical examination. The practical examination of August 27, 1981, was graded by Virginia Stolz and Kathryn Clymer, both of whom are licensed cosmetologists who have been employed by the Department of Professional Regulation as examiners for cosmetology examinations during the past six years. The practical examination is an opportunity for examinees to demonstrate their competence by performing several cosmetology services within a given amount of time. The services performed, the given time for each service, and the number of points assigned each service are defined by Board rule and incorporated into the grading score sheet for the practical examination. During the hair shaping portion of the practical examination, the Petitioner informed an unidentified examiner of problems with her model's hair which included gaps in the hair from a recent tint and haircut. The Petitioner was informed by the unidentified examiner that she should skip over the gaps since they could not be shaped into the haircut and corrected. Notwithstanding this, two points were deducted frog Petitioner's score due to gaps in her model's hair. When deficiencies are reported, it is the normal procedure for an examiner to make notations in writing; however,. the examiner's notes pertaining to the examination of August 27, 1981 have been destroyed. If an examiner is informed of deficiencies in a model's hair prior to the start of the examination, points for the deficiency are not deducted when the problem is noted by the examiner. In Petitioner's case, however, the timer had already started before she was given the opportunity to point out the gap problem with the model's hair and no notes exist to confirm that the examiner did not deduct points for the preexisting problem. It is possible to lose time by reporting deficiencies because they are reported after the timer is started. The amount of time normally lost in such a situation is 2-3 minutes out of the 30 minutes allocated for hair shaping. Following the 30 minutes allocated for hair shaping, the Petitioner was to clean the station where she performed the haircut. The clean up time was in addition to the 30 minutes given for the shaping procedure and had no maximum time set for the procedure to be completed. When she finished the hair shaping procedure, the Petitioner waited for a broom and dust pan to clean her station. Since she was fartherest away from available cleaning materials, Petitioner was among the last examinees to get access to the cleaning tools. Due to her concern that points would be deducted if she stayed in the station area too long waiting for cleaning tools, Petitioner did not clean her station and instead went to the area where other examinees were sent. When the examiners realized that Petitioner had joined the other examinees and not cleaned her station, she was sent back to her station to sweep her model's hair. However, points were deducted from her test score for failing to clean her station despite no time limit being attached to the cleaning portion of the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner be given a passing grade on the practical portion of the August 27, 1981 cosmetology examination based on deductions which were erroneously made on the hair shaping and station cleaning portion of her practical examination. DONE and ORDERED this 26th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of April, 1982. COPIES FURNISHED: George Waas, Esquire SLEPIN SLEPIN LAMBERT & WAAS 1114 East Park Avenue Tallahassee, Florida 32301 Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601 - The Capitol Tallahassee, Florida 32301 Myrtle Aase, Executive Director Florida Board of Cosmetology Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent violated Section 477.02(6); 477.15(8); 477.27(1) and (2), F.S. by allowing a person to practice the art of cosmetology in her salon without said person being a registered cosmetologist by the State of Florida.
Findings Of Fact Respondent, Marlene Fletcher, d/b/a the Beauty Parlour, did allow one Victoria Kane to practice the art of cosmetology, to-wit: the giving of a permanent wave to a customer in Respondent's salon at a time in which she held no Florida license. Respondent discussed by long distance telephone the circumstances attending the giving of said permanent wave by the said Victoria Kane. The said Victoria Kane was not in the employ of the Respondent; however, said Victoria Kane was under the control of the Respondent inasmuch as the practice of the art of cosmetology was in the salon of Respondent and at a time in which the Respondent was present.
The Issue Whether the certificate of registration No. 866914 should be revoked, annulled, suspended or withdrawn for violation of Chapter 477, Florida Statutes, and the rules and regulations promulgated thereunder, for practicing without a license.
Findings Of Fact Receipt for certified mail notifying Respondent of this hearing was offered into evidence as Exhibit 1 and marked without objection. The Election of Remedies, a composite exhibit marked Exhibit 2, was entered as requested without objection. Respondent was charged for practicing cosmetology without a license. Respondent admitted the violation and submitted such plea to the Board which was included in the Board's Exhibit 1. After the violation for which Ms. Gould was noticed and for which this hearing is held, Respondent took the examination for master cosmetologists, passed the examination, and was issued a Florida license.
Recommendation Suspend the certificate of registration Respondent now holds for a period of one (1) week. August 29, 1975 DATE Delphine C. Strickland Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Ms. Gertie Campbell 7409 Huntley Avenue Tampa, Florida Ms. Rose Gould 1904 Bruce Street Kissimmee, Florida 32741 Ms. Mary Alice Palmer Executive Director Board of Cosmetology Post Office Box 9087 Winter Haven, Florida 33880 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA STATE BOARD OF COSMETOLOGY State Board of Cosmetology, Complaintant, vs. CASE NO. 75-1016 LICENSE NO. 86691 Rose Gould, Respondent. /
The Issue At issue is whether respondent committed the offenses alleged in the amended administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Agency for Health Care Administration, Board of Medicine, is a state agency charged with the duty and responsibility of regulating the practice of dietetics and nutrition, including the prosecution of administrative complaints, pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 468, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Jay D. Foster, is now and has been at all times pertinent to these proceedings a licensed nutrition counselor in the State of Florida, having been issued license number NC 0000273. Respondent conducts business through, and is a shareholder, officer and employee of, Body Chemistry Associates, Inc., a Florida corporation, with offices at 9155 Southwest 87th Avenue, Miami, Florida 33176. Pertinent to this case, respondent is the author of three brochures bearing the following titles: "Nutrition, Learning and Behavior " ("Brochure No. 1") [Petitioner's Exhibit 1]; "Toxic Metals: What they can mean to your health and well being" ("Brochure No. 3") [Petitioner's Exhibit 3]; and "Nutrition and the Chemistry of Arthritis" ("Brochure No. 4") [Petitioner's Exhibit 4].2 The parties stipulated, at hearing, that each of these brochures promoted the services and types of treatment respondent performed through the BodyChemTM Program, and were available in the waiting area of respondent's office. [TR., page 153]. By such stipulation, it is reasonable to infer, absent proof to the contrary (which was not forthcoming), that each brochure was available to the public upon entry to respondent's waiting area, and that the brochures were placed in such area with the intention of selling, offering to perform, or inducing members of the public to engage respondent to perform nutrition services. Petitioner has identified the following portion of Brochure No. 1 ("Nutrition, Learning and Behavior"), which it contends contains fraudulent, false, deceptive or misleading information: 3. HEAVY METAL TOXICITY: Lead, Mercury, Cadmium, and Aluminum can all be accurately tested for through a reliable Hair Analysis. By reliable, I mean tested at a reliable laboratory and interpreted by a qualified biochemist or physician. I personally know of 2 reliable hair testing laboratories in this country and have studied over 20,000 hair samples in the last decade. From this experience, I have come to the conclusion that hair analysis gives an extremely accurate indication of heavy metal build-up in the tissues of the body, as well as an indication of essential mineral excesses and deficiencies that we will talk about next. All of the toxic metals mentioned above can effect the brain and central nervous system in children and in adults. When these poisons are detected through hair analysis profile, a program of natural detoxification procedures can be started and as the metals come out, the symptoms begin to improve. We had one case study where an 18 month-old child was brought to our clinic because she could not walk. She wore braces on her legs, had pronated feet, and two pediatricians said that she was born with a "neurologic deficit". The doctors were not sure the child would ever walk, or be mentally retarded. We did a hair analysis on the child and found that she had over 5 times the adult level of Aluminum in her system! It turned out that her mother had been prescribed an antacid that contained Aluminum while she was pregnant with her daughter. The good news is that we put the little girl on a supplement program and she began to walk within 2-3 weeks! She also cut 8 teeth in 5 weeks and was running around and climbing over things within a month. So, the bottom line is that these metals can now be detected and removed through natural means. . . . [Emphasis added.] Brochure No. 3 ("Toxic Metals") observes, by way of introduction: In our modern, high-tech society, we are paying the price for convienence (sic)- in our foods, in our water, and in the rest of our enviornment (sic). Pollution, especially, heavy metal toxicity is now a common occurrence. The bad news is that many people, especially children are being effected, physically and mentally. The good news is that these poisons can be avoided, detected, and even removed from the body with natural means. The brochure then proceeds to discuss "3 common toxic metals" (lead, cadmium and aluminum), their source, the physical or mental disorders they cause, and their removal from the body. As with Brochure No. 1, Brochure No. 3 included the anecdote describing the child on whom "[w]e did a metal analysis of the . . . hair," discovered aluminum toxicity, treated through a "natural detoxification program," and her physical development rapidly improved. The brochure concludes: So, the bad news is that there are poisons in our environment that that (sic) can dramatically affect our health. The good news is that if these metals have found their way into our bodies, they can be detected and removed through a natural process of detoxification. [Emphasis added.] Brochure No. 4 ("Nutrition and the Chemistry of Arthritis") observes, by way of introduction: Arthritis is a complex disease, which can have many origins and of which there is no known cure. This purpose of this article is not to purport to have a new discovery for the cure of any type of arthritis, as I don't claim to have the cure, but rather, the reason for writing this article is education - to let people know about certain dietary, biochemical and nutritional facts which we have found can adversly (sic) affect arthritic symptoms and therefore some general safe guidelines to be aware of which might help reduce the symptoms. I will discuss several different subtopics under the general heading of this paper[.] Pertinent to this case, the brochure includes the following discussion regarding mineral imbalances: . . . When calcium is not taken with proper ratios of magnesium, manganese, zinc and other nutrients, it tends to deposit into the soft tissues. Calcified arthritic deposits can manifest, along with gall stones, kidney stones, bursitis, etc. When calcium deposits are detected, usually via a trace mineral analysis of hair, therapeutic nutritional formulas can be recommended to help your body throw off the deposits. [Emphasis added.] Here, petitioner contends that the statements contained in the brochures that hair analysis can detect a heavy metal build-up (of lead, mercury, cadmium and aluminum) in the tissues of the body, as well as an indication of essential mineral (calcium) excesses and deficiencies , and that once identified the problem can be addressed through therapeutic nutritional formulas, is false and misleading because there is no clinical correlation between hair tissue analysis and heavy metal build-up in the tissues of the body, or mineral (calcium) imbalance, and there is no course of dietary supplementation available to a nutritionist that will aid in the removal of heavy metals from the body. Petitioner further contends that the anecdote regarding the child, who was tested by hair analysis, was found to have "over 5 times the adult level of Aluminum in her system," and following a "natural detoxification program" rapidly improved, is false and misleading for the same reasons [i.e., the build-up of aluminum could not have been reliably detected by hair analysis and no course of dietary supplementation is available to a nutritionist to ameliorate the problem]. Petitioner also contends the anecdote was false and misleading because, if the aluminum build-up were the cause of neurologic damage, such damage would be permanent and not ameliorated by the removal of the aluminum. While the reliability of hair analysis as a means to detect the presence of a heavy metal build-up in the tissues of the body, as well as an indication of essential mineral imbalances, is subject to debate, the proof demonstrates that where, as here, norms or standards are shown to exist, a trace element analysis of the hair can provide a useful tool in the identification of heavy metal build-up and mineral imbalances. Contrasted with blood and urine analysis, the traditional clinical approach, where trace element concentrations are transient (related to the supply of elements in the previous hours or days), hair analysis, while offering no information on immediate levels, offers insight to the tissue level and what has been stored over a period of months. Consequently, given the proof in this case, it must be concluded that the statements contained in the brochures that hair analysis can detect the presence of a heavy metal build-up in the tissues of the body, as well as an indication of essential mineral imbalances, has not been shown to be false or misleading. Rather, hair analysis has been shown to be helpful or to offer useful information in assessing such matters. The next issue requiring resolution is whether petitioner has demonstrated, with the requisite degree of certainty, that the brochures are false and misleading because heavy metal build-ups in the tissues of the body, as well as mineral imbalances, cannot be ameliorated through a course of dietary supplementation or nutritional formulas. Considering the quality of the proof, it cannot be concluded with any degree of confidence that the brochures are false and misleading as petitioner suggests. Indeed, respondent presented persuasive proof that nutritional approaches are available to ameliorate such conditions, and petitioner did not meaningfully address, explain, or rebut such proof. [See, e.g., TR., page 249-251.] Finally, it is necessary to resolve whether petitioner's contention that the anecdote regarding the child who was tested by hair analysis, found to have "over 5 times the adult level of aluminum in her system," and following a "natural detoxification program" rapidly improved, is false and misleading. In addressing the anecdote, it is first observed, for the reasons heretofore noted, that petitioner's contention that the anecdote is false and misleading because a build-up of aluminum in the tissues of the body can not be reliably detected by hair analysis and no course of dietary supplementation is available to a nutritionist to ameliorate the problem has not been sustained. Next to be addressed is petitioner's contention that the anecdote is false and misleading because it infers that a neurologic deficit, caused by aluminum toxicity, can be ameliorated by the removal of the aluminum. According to petitioner, and its proof, any neurologic (brain) damage would be permanent, and any "major cure is not medically or physiologically possible." [Tr., page 27.] Turning to the anecdote at issue, it must be concluded that petitioner's reading is strained and that, reasonably read, the anecdote does not suggest that profound neurologic damage was or can be "cured," as petitioner's reading suggests. Moreover, petitioner's suggestion, and the proof offered to support it, that the sequelae of a neurologic insult are always permanent and not subject to improvement is, especially with regard to infants, rejected as contrary to the more credible proof. Reasonably read, the anecdote correctly observes that "toxic metals [such as aluminum] can effect the brain and central nervous system in children and adults." The symptoms or sequelae attributed to the child are consistent with aluminum toxicity, and even petitioner's expert (Dr. Hillman) conceded that the sequelae attributable to aluminum toxicity are reversible. [TR., page 66.] Moreover, improvement would be more likely in the very young. [TR., page 252-253.] Consequently, the proof fails to demonstrate that the anecdote is false or misleading as suggested by petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the amended administrative complaint be dismissed.DONE AND ENTERED this 18th day of April, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1997.
Findings Of Fact Respondent is a licensed cosmetologist in Florida and was so licensed at all times here relevant. In January, 1983, Respondent began employment as a cosmetologist at the Rose Unisex Hair Salon in Clearwater, Florida. This salon was owned by Rose Sousa, who had advertised the salon for sale. In response to that ad Respondent commenced working at the salon to learn if the salon would be a profitable purchase. In April, 1983, Respondent executed a chattel mortgage agreement in favor of Rose Sousa and her husband, Joe, in consideration of the transfer of the salon to her. An assignment of the lease was contingent on the payment of this chattel mortgage. The agreement further provided that Rose Sousa would continue working at the salon for one year. On May 2, 1983, Respondent gave Sousa a cashier's check for $7,000 which Respondent had borrowed from a friend, in satisfaction of the chattel mortgage. At this time the salon was licensed in the name of Rose Sousa and this license was due to expire in a few months. Respondent believed she could operate under that license until it expired and would then be required to put the salon license in her name. On June 21, 1983, an inspector from the Department of Regulations visited the salon and checked the license of Mary Carroll, who told him she owned the salon, and the salon license which still showed Rose Sousa as owner. Some three weeks after the closing Rose Sousa quit working at the salon and most of the customers left with her. Respondent testified that Rose Sousa had opened a salon in her garage and was servicing her customers there. Regardless of this allegation, the business dropped drastically, Respondent was unable to pay the rent, and the salon was padlocked by the owner of the building. Respondent subsequently declared bankruptcy. But for a friend who took her in as a houseguest, Respondent would, literally, have been out on the street.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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
Findings Of Fact 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. 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. 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 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. 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. 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.
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. /
The Issue Whether the Petitioner should receive credit for answers given to certain specified questions on the Cosmetology Examination administered in December 2002.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation and the Board are responsible for developing and administering the cosmetology examination to candidates who seek licenses to practice cosmetology in Florida. Sections 455.217 and 477.022, Florida Statutes (2002). Ms. Ross sat for the cosmetology examination on December 12, 2002. She received a scaled score of 72 points, which is a failing score. Had Ms. Ross answered two more questions correctly on the examination, she would have achieved a passing scaled score of 75 points. The Candidate Information Booklet provided to candidates for the Cosmetology Examination administered in December 2002 included an explanation of the examination and a list of textbooks and other reference sources, among which were Milady's Standard Textbook of Cosmetology-2000 ("Milady's") and Salon Fundamentals: A Resource for Your Cosmetology Career ("Salon Fundamentals"). It was suggested in the booklet that the textbooks might be useful to the candidates and that the candidates might want to review them because the books include information that is "very appropriate for measuring minimum competency on the Cosmetology Licensure Examinations." According to the Board, the correct answer to question 55 is "A"; Ms. Ross chose answer "D." Question 55 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer, while not set forth word-for-word, can be derived from information contained in Milady's and Salon Fundamentals and is also consistent with the practice of the two experts testifying on behalf of the Board. Ms. Ross should not receive credit for her answer to question 55 because the answer she gave is not the correct answer. According to the Board, the correct answer to question 4 is "C"; Ms. Ross chose answer "D." Question 4 is clear and unambiguous, and the correct answer was included among the choices provided. The correct answer, while not set forth word-for-word, can be derived from information contained in Milady's and Salon Fundamentals. Ms. Ross's attempt to distinguish between "very curly hair" and "curly ethnic hair" for purposes of the answer to this question is not convincing; the technique that is described in the answer the Board deems correct would, according to the sources, apply to very curly hair, regardless of the ethnicity of the client. Ms. Ross should not receive credit for her answer to question 4 because the answer she gave is not the correct answer. According to the Board, the correct answer to question 45 is "C"; Ms. Ross chose answer "A." Question 45 is clear and unambiguous, and one correct answer was included among the choices provided. The correct answer, while not set forth word-for-word, can be derived from information contained in Milady's and Salon Fundamentals. Ms. Ross's rationale for selecting answer "A" indicates that she was not focusing on the specific procedure identified in question 45. Ms. Ross should not receive credit for her answer to question 45 because the answer she gave is not the correct answer. According to the Board, the correct answer to question 21 is "C"; Ms. Ross chose answer "A." Question 21 is clear and unambiguous, and one correct answer was included among the choices provided. The correct answer, while not set forth word-for-word, can be derived from information contained in Milady's and Salon Fundamentals. Ms. Ross's rationale for selecting answer "A" indicates that she was not focusing on the specific information elicited by question 21. The question requires the candidate to respond with the proper "sequence of steps" for the procedure, and the answer deemed correct by the Board includes the most logical sequence of steps, given the information contained in Milady's and Salon Fundamentals. Both of the Board's expert witnesses agreed that the answer deemed correct by the Board was, in fact, the correct answer to question 21. One of the Board's expert witnesses testified, however, that she would not shampoo and dry the hair of a black man as part of the sequence of steps for the procedure that is the subject of question 21. This testimony is not sufficient to render the question ambiguous or the selection of answers misleading: First, question 21 does not include reference to the ethnicity of the client, and, second, the answer that the Board deems correct is the only answer that, excluding the reference to shampooing and drying the hair, contains the proper sequence of steps for the specified procedure. Therefore, even if it were inappropriate to shampoo and dry the hair as one of the steps for the procedure that is the subject of question 21, Ms. Ross's answer to question 21 does not correctly identify the sequence of the other steps that should be followed in performing the procedure. Ms. Ross should not receive credit for her answer to question 21 because the answer she gave is not the correct answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Cosmetology, issue a final order finding that Angelica Ross is not entitled to credit for her answers to questions 4, 21, 45, and 55 of the Cosmetology Examination administered in December 2002. DONE AND ENTERED this 25th day of June, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2003.
