Findings Of Fact A copy of the Administrative Complaint with an attachment of Ms. Rolling's Salon License No. 10810 and receipt of certified mail was entered into evidence and marked as Exhibit 1 without objection. Ms. Rolling's Election of Remedies form was entered into evidence and marked Exhibit 2 without objection. The Respondent holds License No. 10810. Respondent admitted that she did allow two (2) cosmetologists to work in her salon while she was absent. Respondent is a master cosmetologist who ordinarily works in the salon which she supervises and manages. The Respondent, Frances Rolling, has been in ill health and did leave the salon to visit a doctor's office and during the time she allowed cosmetologists to work without the direct supervision of a master cosmetologist.
Findings Of Fact 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. 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. 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. 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. 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. 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.
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
Findings Of Fact Petitioner, Department of Professional Regulation, Board of Cosmetology (Board), is charged with the responsibility of regulating the practice of cosmetology. Among its responsibilities are the routine inspections of cosmetology salons to insure that all Board requirements are being met. On January 13, 1988 a Board inspector inspected the premises of From Hair on Etc., a licensed cosmetology salon in Clearwater, Florida. During the course of the inspection, the inspector observed a work station set up for respondent, Kristie J. Wheatley. The inspector also reviewed the salon's appointment book and noted manicure appointments for "Kristie" beginning around October 13, 1987 and continuing until January 19, 1988. However, the inspector did not find a license for respondent, and a subsequent search of Board records revealed that respondent was not registered with the Board. The inspector later talked with respondent by telephone. Respondent acknowledged that she had been employed as a manicurist at the salon since October 1987 and was not registered with the Board. She informed the inspector that she was unaware that the Board had begun enforcing a new law that required manicurists to be registered. According to owners of the salon, respondent performed manicure services in the salon for a three month period from October 1987 until January 1988. She was compensated for these services. In response to their inquiry as to her registration status, Wheatley told them she had filed an application for registration. Later on, she advised them the registration was at her home. When the owners learned from the inspector that respondent was not registered with the Board, her services were terminated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the amended administrative complaint, that she be assessed a $150 fine, and that she not be permitted to register with the Board until such fine is paid. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of February, 1989. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Tallahassee, Florida 32399-0750 Kristie J. Wheatley 14194 Darts Drive Fenton, MI 48430 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Tallahassee, Florida 32399-0750 Myrtle Aase, Executive Director Department of Professional Regulation Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32399-0750
