Findings Of Fact An Administrative Complaint was filed against Licensee Nannette Harnage charging.: "That you, said NANNETTE HARNAGE on Janu- ary 13, 1977 did work on a patron without license number and without the supervision of a master cosmetologist at Nannette's Hay Balers, Middleburg, Florida." The Respondent, Nannette Harnage, said that she was guilty of working in her salon without the presence or supervision of a master cosmetologist. She stated that she now has a master cosmetologist in the salon at all times. The issue as to working on a patient without a license number was dropped.
Recommendation Issue a letter or reprimand to the Respondent, Nannette Harnage. DONE and ORDERED this 23rd day of September, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire LaFace & Baggett, P.A. Post Office Box 1752 Tallahassee, Florida 32302 Nannette Harnage Nannette's Hay Balers 2504 Blanding Boulevard Middleburg, Florida 32068
The Issue Whether Respondents operated their cosmetology salon in violation of the rule then in effect in which each cosmetology salon owner or manager should send to the Board every five (5) years a certificate from a licensed electrician showing that the electrical equipment in said salon is in safe operating condition. Regulation 21F-3.02, of the rules and regulations of the State Board of Cosmetology. Whether Respondents' license should be revoked, annulled, withdrawn or suspended.
Findings Of Fact The witness and Respondents were duly sworn. The Notice of Service and Complaint were entered without objection and marked Exhibit 1. The Election of Remedies and Electrical Certificate were entered into evidence as Exhibit 2 without objection. Respondents held a license as required by Board of Cosmetology Rule 21F-3.02, which was dated 1969. A notice of violation was written up by the Board at the five-year expiration of said license which was in 1974. Since the writing of the violation notice, the Board has rescinded the rule requiring an electrical certificate and Respondnets not having procured a certificate in a timely fashion did not then attempt to secure said certificate inasmuch as the rule had been rescinded.
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, 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
The Issue Whether the certificate of registration of Respondent should be revoked, annulled, withdrawn or suspended for the reason that Respondent, Arguster Jackson, did work as a master cosmetologist without a valid certificate of registration.
Findings Of Fact A copy of the Complaint with attached license, the certificate, and receipt for certified mail were entered into evidence as requested and marked Exhibit 1 without objection. Respondent entered a guilty plea, a copy of which was entered into evidence as requested without objection and marked Exhibit 2. Respondent Jackson did operate without a current registration required by Chapter 477, Florida Statutes. Respondent secured her master cosmetologist certificate within a time laps after the filing of this Complaint.
Findings Of Fact Petitioner Schutte satisfied the requirements which enabled her to sit for a cosmetology examination. She took the examination given in July of 1979 and passed the practical portion with a grade of 80, but she failed the written theoretical portion with a grade of 69. In October of 1979, Petitioner again took the theoretical portion of the cosmetology examination and failed with a grade of 72. She returned to cosmetology school and took forty (40) hours of remedial training. Thereafter, in December of 1979, Petitioner took the theoretical portion of the examination for the third time, on this occasion failing with a grade of 71. A passing grade of 75 is required for licensure. Petitioner Schutte has been employed in the cosmetology business owned by Leni Nelson since December of 1979. She has satisfied her employer with her work in the limited area of cosmetology she is allowed to perform without licensure. Ms. Nelson has found Petitioner to be interested in her work and concerned with the welfare of the customers, and she hopes that the problem Petitioner has encountered with the written examination can be resolved. Petitioner Schutte did not notify the Respondent Board that she had difficulty in reading written examinations, although she took three (3) consecutive written examinations. After consideration of the evidence and hearing testimony presented at the formal hearing, the Hearing Officer finds that Petitioner has a reading problem and therefore is at disadvantage in taking written examinations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends the following: Deny licensure to the Petitioner, Tracy D. Schutte; Notify the Petitioner that she may take the written portion of the examination again using a reader of her choice pursuant to Rule 21F-6.04(6), Florida Administrative Code. DONE and ORDERED this 16th day of May, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Ms. Tracy D. Schutte 1960 Byram Drive Clearwater, Florida 33515 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301
