STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANCY K. LEWIS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1137

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on Nay 2, 1988, in Fort Myers, Florida.

APPEARANCES

For Petitioner: John E. Lewis, Qualified Representative

578 Plaza Del Sol

North Fort Myers, Florida 33917

For Respondent: Tobi C. Pam, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

On December 31, 1987, the Respondent notified the Petitioner that she had failed the practical portion of her barber licensure examination which was taken on December 14, 1987. In a letter dated January 26, 1988, the Petitioner requested a formal hearing to challenge the grading of the practical examination.

Prior to hearing, the Petitioner requested that John E. Lewis be allowed to act as her qualified representative in these proceedings. After diligent inquiry, it was determined by the Hearing Officer that Mr. Lewis had sufficient expertise in the barbering profession as well as knowledge of the administrative hearing process which would assist the Petitioner. As a result, Mr. Lewis was allowed to represent the Petitioner in the hearing.

During the hearing, the Petitioner called three witnesses and testified in her own behalf. The Respondent called one witness and submitted three exhibits, which were admitted into evidence. Because the Petitioner was not given copies of the applicable portions of the Examiner Manual prior to hearing, she was given the opportunity to submit additional exhibits in response to the exhibit by May 16, 1988. Additional exhibits were received by the Hearing Officer and were admitted into evidence as Petitioner's Composite Exhibit 1. The deadline for the Recommended Order was extended to June 16, 1988.

A transcript of the proceedings was not ordered. Both parties waived their right to submit proposed findings of fact.

ISSUE

Should the Petitioner be licensed in Florida as a barber as a result of the examination for licensure given in December of 1987?

FINDINGS OF FACT

1. The Petitioner took the examination for licensure as a barber in December of 1987. Although she achieved a passing score on the written portion of the examination, she did not obtain a passing score on the practical portion of the examination.

   
   

2. The practical portion of the examination is divided into five parts. The Petitioner challenges the grade she received in the scoring of the haircut.

   
   

3. The maximum number of points a licensure candidate can receive on a haircut is 45 points. A review of Respondent's Exhibit B shows that the Petitioner received 18 points for her performance on Sections 2-k, 2-o, and 2-p of the exam. She does not contest the examiners' ratings on Sections 2-j and 2-

   m. She is concerned only with the scores she received on Sections 2-l and 2-n.

   
   

4. When the Petitioner took the examination, John E. Lewis was the model she used to demonstrate her ability to give a "styled" haircut. During the hearing, John E. Lewis explained the following characteristics of his head and scalp line: Mr. Lewis' ears are not symmetrically located. One ear is placed significantly higher on his head than his other ear, which gives them different heights in relation to his facial features. In addition, the hair on the left side of his head grows much thicker than the hair on the right side of his head. As a result of these characteristics, an optical illusion is created which makes hair of identical length on both sides of the head appear to be longer on the left side.

   
   

5. During the barber examination, two examiners checked the style line of the haircut under Section 2-l. On the criteria rating sheets, they commented that the left side of the style line appeared longer. In rating the hair on each side as to evenness and balance (Section 2-n), the examiners each noted that the left side was either longer or fuller. Because of these evaluations, the Petitioner did not receive any points in categories 2-i or 2-n in the examination.

   
   

6. Cathy Maynard Frank, a Florida licensed barber who was awarded a silver medal in the 1986 World Championship of Barbers and who has placed second nationally, testified as an expert witness on behalf of the Petitioner. Ms. Frank had an opportunity to observe and professionally review the haircut a few hours after the examination. In her opinion, the hair on both sides (under Section 2-n) was as close as a barber could get them. If the Petitioner had cut the left side shorter to avoid the optical illusion of unevenness, the thicker hair on the left side would have stuck straight out.

   
   

   Ms. Frank generally agreed with the examiners' evaluations in the other categories which contributed to her credibility as an expert witness.

   
   

7. Ronald Max Young testified as an expert witness on behalf of the Respondent. Mr. Young is a barber who has been licensed in Florida since 1972.

   He is a lead examiner for the state and has participated in the examination process for the last five years. Mr. Young testified that the examination contains the standard criteria necessary to meet the minimum requirements for licensing. The examiners look for an even haircut, evenly balanced all the way around. If a model is not fitting, that is the candidate's problem, not the examiners' problem.

   
   

   Mr. Young did not have an opportunity to examine the haircut given by the Petitioner during the practical examination. He was unable to comment on the specifics which had been commented upon by Ms. Frank. However, he did vouch for the qualifications and abilities of the two examiners who independently rated the Petitioner's performance.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

   
   

9. Section 476.134, Florida Statutes, gives the Department of Professional Regulation the authority to conduct examinations. The Board of Barbers was given the authority to adopt rules specifying the areas of competency to be covered by the examination. Section 476.134(2), Florida Statutes, requires that "... all areas tested shall be reasonably related to the protection of the public and the applicant's competency to practice barbering in a manner which will not endanger the public."

   
   

10. The content of the examination, the grading criteria to be used in considering the candidate's haircut, as well as the scoring criteria are contained in Chapter 21C-16, Florida Administrative Code.

    
    

11. The Petitioner in this case does not contend that an improper, unlawful licensure examination was given. She contends that the model she used to demonstrate her ability to cut hair had unique characteristics which resulted in the examiners' improper scoring based upon optical illusions. Because of her choice of a model, her examination was defective, and therefore, unlawful.

    
    

12. If the examination became unfair or unlawful, as applied to the Petitioner, because of her unfortunate choice of models, the question then becomes one of appropriate remedy. In State ex rel. Lane v. Dade County, 258 So.2d 347 (Fla. 3d DCA 1972), the court addressed the question of an appropriate remedy following an allegedly improper licensure exam. The court concluded that the exam candidate could seek an order directing that he be given a lawful examination. However, the court further reasoned: "But he cannot file a petition for mandamus and expect Dade County to be compelled to issue a Master Plumber's certificate to him because the examination was defective."

    
    

13. The protection of the public and proof of the exam candidate's competency to practice a profession in a manner which will not endanger the public is too important to leave to chance because of a faulty examination.

    
    

14. In Alvarez, et al. v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984), the court balanced the rights of examination candidates and the interests of the public by ordering that exam candidates who failed the practical portion of the 1982 state acupuncture exam because of insufficient and misleading instructions be permitted to sit for another exam free of charge.

    The court explained its decision as follows: "Under the circumstances, such action is fair to both sides in that it protects the public but does not

    penalize examinees for the agency's inadequate and sometimes misleading directions."

    
    

15. The public protection considerations and the Alvarez remedy which allows for a free reexamination on the practical portion of the exam both apply to this case. The Petitioner received less than one half of the possible 45 points she could have obtained on the haircut portion of the exam. The only adequate way to protect the public and to ensure that the poor score was a result of only an unfortunate model choice and optical illusions is to allow the Petitioner to retake the haircut portion of the exam.

    
    

16. A passing result on a reexamination with a more appropriate model would allow the Board of Barbers to license the Petitioner based upon a clear and unequivocal showing that she is competent to practice her profession.

Based upon the foregoing, it is hereby RECOMMENDED:

1. That a Final Order be entered finding that Petitioner failed to achieve a passing grade on the practical portion of the December 1987 barber licensure examination.

   
   

2. That the Petitioner be allowed to retake the practical portion of the examination involving the haircut which she failed at the next regularly scheduled examination.

   
   

3. That the reexamination be given at no cost to the Petitioner.

DONE AND ENTERED this 8th day of June, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1988.

COPIES FURNISHED:

Mr. John E. Lewis

578 Plaza Del Sol

North Fort Myers, Florida 33917

Tobi C. Pam, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Myrtle Aase, Executive Director Board of Barbers

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001137

Orders for Case No: 88-001137