STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES JENKINS, JR., )

)

Petitioner, )

)

vs. ) Case No. 98-0448

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on June 2, 1998, in Lakeland, Florida.

APPEARANCES

For Petitioner: James Jenkins, Jr., pro se

Post Office Box 4092

Lake Wales, Florida 33853-4092

For Respondent: R. Beth Atchison

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Should Respondent receive a passing score on the practical portion of the Barber Examination given on January 13, 1997?

PRELIMINARY MATTERS

Petitioner applied for and took the Barber Examination on January 13, 1997. By an Examination Grade Report dated

February 3, 1997, the Florida Department of Business and Professional Regulation (Department) advised Petitioner that he had failed the Practical portion of the examination and had thereby failed the overall examination. By an undated letter received by the Department on February 26, 1997, the Petitioner requested a formal hearing. By letter dated January 23, 1998, the Department referred this matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, the Petitioner testified on his own behalf but presented no other witness. The Petitioner did not offer any documentary evidence. The Department presented the testimony of Jerri Scott and Char Feliciano. The Department’s Exhibits One through Three were received as evidence.

A transcript of this proceeding was filed with the Division on June 18, 1998. The Department filed its Proposed Recommended Order on July 9, 1998. The Petitioner elected not to file a proposed recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Examination for Licensure as a Barber is administered by the Department’s Bureau of Testing and consists of two parts: Part I, Written; and Part Two, Practical.

2. Petitioner passed Part I and Part I is not in contention.

3. The Candidate Information Booklet for the Barber Examination (Information Booklet) provides as follows:

   GRADING CRITERIA FOR THE PRACTICAL EXAMINATION

   
   

   The performance of each candidate on the examination is evaluated by two examiners. The score necessary to achieve a passing grade shall be no less than seventy-five (75) percent out of one hundred (100) percent based on the average of the examiners’ scores. This means that a candidate will receive all the possible points for a procedure if both examiners evaluate the candidate as performing the procedure. If one examiner evaluates the candidate as performing the procedure and one examiner evaluates the candidate as failing to perform the procedure, the candidate will receive half of the possible points for the procedure. If both examiners evaluate the candidate as failing to perform the procedure, the candidate will not receive any points for the procedure.

4. Under Part II (Practical) the candidate is graded on the following procedures. The number in parentheses is the maximum number of points that the candidate can receive upon successfully completing each procedure.

   1. Sanitation and Patron Protection (25)

   2. Technique (10)

   3. Shampoo Service (10)

   4. Haircut (45)

   5. Chemical Service (10)

      
      

      Total possible points (100)

      
      

5. Based on the Examination Grade Report the Petitioner received the following scores on the procedures listed above:

   1. Sanitation and Patron Protection 24

   2. Technique 10

   3. Shampoo Service 10

   4. Haircut 5

   5. Chemical Service 0

      Total points received 49

      
      

   6. Petitioner is contesting the grading of the Haircut procedure only.

   7. The following is the criteria to be rated under the Haircut procedure:

      B-8. Top is even and without holes, gaps, or steps. B-9. Top (horseshoe) blends with the sides and back. B-10. Front outline are even.

      B-11. Haircut is proportional and sides are equal in length.

      B-12. Sides and back are without holes, gaps, or steps B-13 Sides blend with the back.

      B-14. Sideburns and outline are even.

      B-15. Sideburns, outline and neckline are clean shaven. B-16. Neckline is properly tapered.

      
      

   8. Examiner Jerri Scott gave Petitioner credit for correctly performing Criteria B-10 and B-12 but determined that Petitioner had failed to properly perform criteria B-8, B-9,

      B-11, and B-13 through B-16.

      
      

   9. Examiner Char Feliciano determined that Petitioner had failed to properly perform criteria B-8 through B-16.

   10. During the hearing, the Department agreed to grant Petitioner full credit for B-10 and B-12 since there was some inconsistency in the examiners' grading which gave Petitioner 10

       points on the Haircut procedure rather than the 5 points reported on the Examination Grade Report. This gave Petitioner a total score of 54 points out of a possible 100 points on the Practical part of the examination.

   11. Each examiner individually examined the haircut performed by Petitioner and determined, based on the criteria set forth in the Information Booklet and the Examiner's Grading Sheet, that Petitioner had failed to properly perform B-8, B-9,

       B-11, and B-13 through B-16

       
       

   12. The evidence is clear that Petitioner failed to properly perform B-8, B-9, B-11, and B-13 through B-16 of the Practical part of the Barber Examination given on January 13, 1997, notwithstanding the testimony of Petitioner to the contrary which I find lacks credibility. Additionally, the evidence is clear that Petitioner failed to receive a passing score on the Practical part of the Barber Examination given on January 13, 1997.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1), Florida Statutes.

   14. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 2d DCA 1981). To succeed in his challenge to

the examination, Petitioner must establish, by a preponderance of the evidence, that the examination was somehow faulty, was arbitrarily or capriciously worded, 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); State ex rel Glaser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel I.H. Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner has failed to satisfy his burden in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's challenge to the Practical part of the Barber Examination given on January 13, 1997.

DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1998.

COPIES FURNISHED:

Joe Baker, Executive Director Board of Barbers

Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Linda Goodgame, General Counsel Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32299-0792

R. Beth Atchison Assistant General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

James Jenkins, Jr., pro se Post Office Box 4092

Lake Wales, Florida 33853-4092

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: 98-000448

Orders for Case No: 98-000448