STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK CAPOSTAGNO, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4850

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF BARBERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 6, 1987 in Orlando, Florida.

Petitioner Frank Capostagno appeared on his own behalf. The Respondent, Department of Professional Regulation, Board of Barbers, was represented by Chester G. Senf, Esquire, Tallahassee, Florida.

Respondent notified Petitioner that he had failed the practical examination portion of the July 27, 1986 barber instructor examination, and Petitioner requested a formal hearing concerning his examination grade. Accordingly, the issue for determination herein is whether Petitioner successfully completed the practical examination.

The Petitioner testified on his own behalf, and Joseph A. Klock testified on behalf of the Respondent. Additionally, Petitioner's Exhibit numbered 1 and Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

At the conclusion of the final hearing, both parties waived their right to submit proposed findings of fact in the form of proposed recommended orders.

FINDINGS OF FACT

1. Petitioner has been licensed as a barber and as a cosmetologist for approximately the last 18 years. He holds a bachelor's degree in vocational education from the University of Central Florida. He has taught courses in barbering for a number of years at different schools.

   
   

2. The July 1986 barber instructor examination was the first barber instructor examination administered in the State of Florida.

   
   

3. Petitioner was eligible to take and did take the July 1986 barber instructor examination. Although he achieved a passing score on the written portion of that examination, he failed to obtain a passing score on the practical portion of the examination. Accordingly, Petitioner is deemed to have failed the entire examination.

4. Approximately 30 days before the examination date, Petitioner received from Respondent a Notice to Appear containing both Petitioner's examination admission slip and detailed instructions and information regarding the administration of the examination and the contents of the examination itself. Regarding the practical portion of the examination, the information within the Notice to Appear advised Petitioner and the other candidates that the practical portion of the examination would consist of the preparation of a lesson plan and actual presentation of that lesson according to the candidate's own lesson plan.

   
   

5. The Notice to Appear specified that there are seven categories of instruction as follows:

   
   

   Shampooing and Haircut Shave

   Permanent Wave Facials Coloring

   Sanitation and Sterilization Chemical Straightening

   
   

   The Notice to Appear explained that each candidate, before coming to the examination, should prepare at least one lesson plan for each category of instruction. At the examination site, each candidate would be assigned one of those seven categories of instruction. The candidate would then submit a lesson plan for a 30-minute lesson for the category assigned to that candidate at that time. The candidate would then present the lesson according to the lesson plan which that candidate submitted. The lesson could be either a demonstration or a lecture, and the candidate would be evaluated on the candidate's use of audio/visual aids during the lesson presentation.

   
   

6. The Notice to Appear also includes a blank sample grade sheet so that the candidate is advised as to the specific 20 criteria by which the examiners judge the lesson plan and its presentation.

   
   

7. The team of three examiners for the July 1986 barber instructor examination consisted of two licensed barber instructors and one educator, since the barber instructor examination is a teaching examination rather than a barbering examination. The examiners are prohibited from conferring or collaborating with each other in marking their individual grade sheets.

   
   

8. When Petitioner arrived at the examination site for the practical portion of the examination, he was assigned the first category of instruction: Shampooing and Haircut. He turned in the lesson plan which he had previously prepared. His lesson plan covered only the topic of haircutting and stated that the time necessary for the lesson was one hour. All examiners agreed that Petitioner started his presentation at 3:05 p.m. and concluded it at 3:19 p.m.

   
   

9. The percentage of agreement among the three examiners as to whether Petitioner met each of the 20 criteria in the practical portion of the examination is within the normal range of expectation for three evaluations performed independently.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

11. The rules for the content and administration of the barber instructor examination are found in Chapter 21C-27, Florida Administrative Code. Rule 21C- 27.004(3)(a) provides as follows:

    
    

    1. The Department shall prepare, administer, and grade the practical examination.

       1. Classroom presentation consisting of a practical demonstration in one of the previously assigned subjects. Subjects will be assigned on the day of the examination by the Office of the Examination Services. The subject shall be selected from the category listed below with emphasis on skill and chemistry of subject where applicable or feasible:

          
          

          1. Shampooing and Haircut

          2. Shave

          3. Permanent Wave

          4. Facials

          5. Coloring

          6. Sanitation and Sterilization

          7. Chemical Straightening

          
          

12. Petitioner argues that the topic that he was assigned for the practical portion of the examination -- Shampooing and Haircut -- is not a single subject but rather is two distinctive subjects which cannot be taught together and that he was, - therefore, confused as to how he could properly present the subject assigned to him. Petitioner's argument is without merit. The rule specifically provides that the subject for the lesson plan is to be selected from within the category listed. Petitioner's lesson plan does not indicate that he was confused as to some requirement to cover both shampooing and haircut within a single lesson since Petitioner's lesson plan only covers haircutting. Accordingly, there is no evidence that petitioner was confused at the time of the examination as to what was required of him in preparing the lesson to be taught or the lesson plan. It has not been argued that Petitioner was expected to teach the complete areas of shampooing and haircutting within a 30-minute presentation. Further, although Petitioner contends that he complained to both the Board and the Department prior to the examination that shampooing and haircutting were two separate subjects and should not be placed in the same category of instruction, Petitioner has not filed a rule challenge pursuant to Section 120.56, Florida Statutes.

Petitioner next argues that there was little consistency among the examiners who graded the practical portion of Petitioner's examination since there was disagreement as to whether Petitioner successfully met 7 out of the 20 criteria. Respondent's expert testified that the degree of consistency was within normal range, and Petitioner presented no evidence to the contrary.

Additionally, the examination was structured so that each criterion was worth five points. If all three examiners believed a candidate met a particular criterion, the candidate received five points for that criterion; if two of the three examiners believed the candidate met the criterion, the candidate received two-thirds of the five points for that criterion; and if only one of the examiners believed the candidate successfully met a criterion, the candidate received one-third of the five points for that criterion. Accordingly, even on

those criteria on which the examiners disagreed as to Petitioner's success, the Petitioner was still given credit even if only one examiner thought Petitioner successful. He did not lose all points on any criterion simply because the examiners disagreed regarding that criterion.

The burden of proof is on the Petitioner in this examination challenge, and Petitioner has failed to meet it.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, therefore,

RECOMMENDED that a Final Order be entered finding that Petitioner failed to achieve a passing grade on the practical portion of the July 1986 barber instructor examination.

DONE AND RECOMMENDED this 10th of June, 1987, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 10th day of June, 1987.

COPIES FURNISHED:

Mr. Frank Capostagno

3344 South Orange Blossom Trail Orlando, Florida 32207

Chester G. Senf, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van B. Poole, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Myrtle Aase, Executive Director Board of Barbers

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004850

Orders for Case No: 86-004850