STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY COOK, )

)

Petitioner, )

)

vs. ) Case No. 97-1863

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in these cases before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on July 1, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Gary Cook, pro se

202 Mulberry Circle Crawfordville, Florida 32327

For Respondent: R. Beth Atchison

Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Gary Cook, should have received a passing score on the Barber Practical Examination taken by him in November 1996.

PRELIMINARY STATEMENT

On or about November 25, 1996, Petitioner, Gary Cook, took the Barber Practical Examination. Mr. Cook was subsequently notified that he had received a score of 70. A score of 75 is considered a passing grade.

By letter dated December 30, 1996, Mr. Cook requested a formal administrative hearing to contest the determination of his score. In particular, Mr. Cook alleged that he should have received more points in the area of sanitation and patron protection. Mr. Cook's request for hearing was filed by Respondent with the Division of Administrative Hearings on

April 15, 1997.

Mr. Cook's request for hearing was designated Case

Number 97-1863. The case was assigned to the undersigned. The formal hearing was scheduled by Notice of Hearing entered May 12, 1997.

During the formal hearing, Mr. Cook testified on his own behalf. No exhibits were offered by Mr. Cook. Respondent, the Department of Business and Professional Regulation, Barbers Board, presented the testimony of Geri Scott, Don Gibson, and Jennifer Slattery. Respondent offered three exhibits. They were accepted into evidence.

Official recognition of Chapters 119 and 455, Florida Statutes, and Rule 61G3-16, Florida Administrative Code was taken.

A transcript of the hearing was filed on July 11, 1997.

Proposed Recommended Orders were, therefore, required to be filed on or before July 21, 1997. Respondent requested an extension until August 15, 1997, for the filing of proposed orders.

Theextension was granted. Respondent filed a proposed order on July 24, 1997. Petitioner did not file a proposed order.

FINDINGS OF FACT

1. On or about November 25, 1996, Petitioner, Gary Cook, took the Barber Practical Examination (hereinafter referred to as the "Exam"). The Exam was scored by two examiners: Geri Scott and Don Gibson.

2. The Bureau of Testing of Respondent, the Department of Business and Professional Regulation (hereinafter referred to as the "Department") subsequently notified Mr. Cook that he had earned a total score of 70 on the Exam. A score of 75 is considered a passing grade.

3. Mr. Cook was notified by the Department that he earned a total score of 14.00 points on the sanitation portion of the Exam.

4. The maximum score which may be earned for the sanitation portion of the Exam is 25.00.

5. On or about December 30, 1996, Mr. Cook requested a formal administrative hearing to contest the determination of his score on the Exam. Mr. Cook challenged his score on the sanitation portion of the Exam.

6. The sanitation portion of the Exam consists of ten criteria for which points may be earned:

   Criteria Maximum Score

   
   

   Used proper linen setup

   for the shampoo 2

   Properly stored clean and dirty linen during the

   shampoo 3

   Washed hands before beginning

   the haircut 2

   Used the proper linen setup

   for the haircut 3

   During the haircut tools were replaced in sanitizer after

   each use 3

   Properly stored clan and dirty linen during the haircut 2

   Washed hands before beginning

   the permanent wave 2

   Used the proper linen/cottonwrap setup for the permanent wave 3

   Kept tools sanitized during the permanent wave 3

   Properly stored clean and dirty linen during the permanent

   wave 2

   TOTAL POSSIBLE POINTS 25

7. The criteria of the sanitation portion of the Exam are designated as "procedures" which candidates are required to meet during the Exam. If both examiners determine that a candidate carried out a procedure, the candidate is awarded the total available points for the procedure. If both examiners determine that a candidate did not carry out the procedure, the candidate is awarded no points for the procedure. Finally, if one examiner determines that a candidate carried out the procedure and the other examiner disagrees, the candidate is awarded half of the available points for the procedure.

8. On the sanitation portion of the Exam Mr. Cook received no points for procedures B-2, C-2, and C-3. Mr. Cook received half the points available for procedures B-4 and C-4. Mr. Cook specifically alleged that he should have been awarded the maximum points for procedures B-2, B-4, C-2, C-3, and C-4.

9. For procedure B-2, the examiners were to determine whether "[t]he candidate used the proper linen setup for the haircut." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not used the proper linen setup.

10. For purposes of procedure B-2, the haircut includes shaving around the outline of the hair. Therefore, proper linen setup for the shave is a part of the haircut. Mr. Cook did not dispute the fact that he had not used the proper linen setup for the shave portion of the haircut.

11. Mr. Cook suggested that the haircut portion of the Exam did not include the shave. The evidence failed to support this assertion. Rule 61GK3-16.001(7)(a)8., Florida Administrative Code, provides that a "haircut" for purposes of barber examinations includes a determination that "[s]ideburns, outline and neckline are clean shaven." See also, Page 7 of the Candidate Information Booklet, Respondent's Exhibit 3.

12. Mr. Cook failed to prove that he fulfilled the requirements of procedure B-2.

13. For procedure B-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the haircut." [Emphasis added] This procedure was worth a total of 2 points. One examiner determined that Mr. Cook had not met this criterion. Mr. Cook, therefore, was awarded 1 point for this procedure.

14. The examiner that found that Mr. Cook had not performed procedure B-4 properly determined that Mr. Cook had placed a box of rubber gloves on a bar behind the area in which he was working.

15. The Department has cited no authority which defines the term "linens" as including rubber gloves. The common definition of the term "linens" does not suggest that rubber gloves constitute linens. The term "linen" is defined as follows:

    1 a : cloth made of flax and noted for its strength, coolness, and luster b : thread or yarn spun from flax 2 : clothing or household articles made of linen cloth or similar fabric

    3 : paper made from linen fibers or with a linen finish

    
    

    Webster's Ninth New Collegiate Dictionary 1984.

    
    

16. Mr. Cook should have received full credit for procedure B-4. Therefore, Mr. Cook should have received one additional point on procedure B-4.

17. For procedure C-2, the examiners were to determine whether "[t]he candidate used the proper linen/cotton wrap setup for the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion.

18. Both examiners determined that Mr. Cook had failed to use a proper cotton-wrap setup.

19. Mr. Cook failed to explain what steps he undertook in setting up for the permanent wave. Mr. Cook, therefore, failed to prove that he fulfilled the requirements of procedure C-2.

20. For procedure C-3, the examiners were to determine whether "[t]he candidate kept tools sanitized during the permanent wave." This procedure was worth a total of 3 points. Both examiners determined that Mr. Cook had not met this criterion.

21. Both examiners determined that Mr. Cook had placed rods used for the permanent on the back bar.

22. Mr. Cook failed to prove that the did not leave rods on the back bar while performing the permanent wave. Mr. Cook,

    therefore, failed to prove that he fulfilled the requirements of procedure C-3.

23. For procedure C-4, the examiners were to determine whether "[t]he candidate properly stored clean and dirty linen during the permanent wave." This procedure was worth a total of

    2 points. One examiner determined that Mr. Cook had not met this criterion.

24. The examiner who found that Mr. Cook had not met this criterion determined that Mr. Cook had left end-wraps on the back bar.

25. Mr. Cook failed to prove that he did not leave end- wraps on the back bar. Mr. Cook, therefore, failed to prove that he fulfilled the requirement of procedure C-4.

26. All of the criteria for the sanitation portion of the Exam are listed in a Candidate Information Booklet for the Barber Examination. See page 6 of Respondent's Exhibit 3. The booklet also explains the scoring procedure.

27. Mr. Cook proved that he should have been awarded one additional point on the sanitation portion of the Exam. Therefore, Mr. Cook earned a total score of 71 on the Exam. Mr. Cook's score is below a passing score of 75.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120,57, Florida Statutes (Supp. 1996).

29. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in a proceeding before the Division of Administrative Hearings. Antel v. Department of Professional Regulation, 522 So. 2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d

    249 (Fla. 1st DCA 1977).

    
    

30. It is Mr. Cook who is asserting the affirmative: that he should have received a higher score on the sanitation portion of the Exam. Mr. Cook, therefore, had the ultimate burden of proving by a preponderance of the evidence that he should have received a higher score. Mr. Cook failed to meet his burden.

31. In order to meet his burden, Mr. Cook was required to prove that the Exam was faulty, was arbitrarily or capriciously worded, that his answers to the challenged questions were arbitrarily or capriciously graded, or that he 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. 3d DCA 1986); and Glaser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963).

32. Mr. Cook essentially argued during the formal hearing of this case that he was improperly denied credit during the grading process. With regard to procedure B-2, Mr. Cook

    suggested that a "haircut" does not include shaving. The evidence failed to support this contention.

33. Shaving along the line of the hair is a part of a "haircut." Rule 61G3-16.001(7)(a)8., Florida Administrative Code, provides that a "haircut" for purposes of barber examinations includes a determination that "[s]ideburns, outline and neckline are clean shaven." See also page 7 of the Candidate Information Booklet, Respondent's Exhibit 3.

34. With regard to procedures B-4 and C-4, Mr. Cook essentially argued that the box of rubber gloves (procedure B-4) and the end-wraps (procedure C-4) do not constitute "linens." The evidence failed to prove that end-wraps do not constitute "lines."

35. The treatment of the rubber gloves as "linens" is not, however, supported by the evidence or the rules that govern this matter. The common definition of the term "linens" does not include rubber gloves. It is, therefore, concluded that Mr. Cook should have received one additional point for procedure B-4.

36. With regard to procedure C-2, Mr. Cook failed to prove that he performed the proper linen/cotton wrap set-up for the permanent wave. Mr. Cook failed to explain what steps he took as part of his set-up for the permanent wave.

37. Finally, with regard to procedure C-3, Mr. Cook failed to prove that he did not leave tools on the back bar during the

    permanent wave. By leaving tools (rods) on the back bar, he failed to keep tools sanitized.

38. Based upon the foregoing, it is concluded that Mr. Cook should have received one additional point on the sanitation portion of the Exam. Mr. Cook, therefore, earned a total score of 71, still below a passing grade of 75.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Barbers Board, finding that Gary Cook should have received a total score of 71 on the Barbers Practical Examination of November 1996.

DONE AND ENTERED this 2nd day of September, 1997, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1997.

COPIES FURNISHED:

Gary Cook

202 Mulberry Circle Crawfordville, Florida 32327

R. Beth Atchison, Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Joe Baker

Department of Business and Professional Regulation

Board of Barbers

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 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 from 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: 97-001863

Orders for Case No: 97-001863