STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA WILSON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2524

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on July 13, 1993 in Jacksonville, Florida.

APPEARANCES

For Petitioner: Patricia Wilson, Pro Se

1023 Huron Street

Jacksonville, Florida 32205

For Respondent: Robert A. Jackson, Esquire

Office of the General Counsel Department of Business

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

STATEMENT OF THE ISSUE

Whether items 63, 74, 92, 119 and 124 of the January 1993 Barber Licensure Examination were valid and correctly graded as to Petitioner.

Whether Petitioner's grade report correctly reflected the score achieved by Petitioner on the January 1993 Barber Licensure Examination.

PRELIMINARY STATEMENT

On January 25, 1993, the Petitioner set for the written portion of the January 1993 Barber Licensure Examination. By a Grade Report dated February 18, 1993, the Respondent notified Petitioner that she had failed the written portion of the examination having received a grade of 74 wherein a minimum grade of 75 was required to pass the examination. By letter dated April 16, 1993, the Petitioner filed a request for a formal hearing. By letter dated May 5, 1993, the Respondent transferred this matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and conduct of a hearing. This matter was scheduled for hearing on July 13, 1993.

At the hearing, the Petitioner testified in her own behalf and presented the testimony of Yvette Stewart and Karen Shack. Respondent presented the testimony of Pam Ford and Jeri Scott. Neither Petitioner nor Respondent offered any documentary evidence.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The parties timely filed their Proposed Recommended Orders. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

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

1. Petitioner, Patricia Wilson, was a candidate (Number 0100037) for the written portion of the January 1993 Barber Licensure Examination given on January 25, 1993.

   
   

2. Petitioner questioned the validity and the answers supplied by Respondent's answer key for items number 63, 74, 92, 119 and 124 covered in the January 1993 Barber Licensure Examination.

   
   

3. When Petitioner's witness, Yvette Stewart, a licensed barber in the state of Florida, was read each item in question, it was apparent that the witness clearly understood each item and that the items were neither misleading nor confusing to the witness. Likewise, when the witness was asked to choose an answer for each item from several possible answers, the witness chose the answer given in the Respondent's answer key as the correct answer.

   
   

4. Because more than 50 per cent of the candidates taking the examination failed to correctly answer item 119, the Respondent reviewed item 119 to determine its validity. After reviewing item 119 and the study material from which the item was derived, the Department determined that item 119 was valid and that the answer to item 119 in the Respondent's answer key was correct.

   
   

5. The Petitioner failed to present sufficient evidence to show that items 63, 74, 92, 119 and 124 were invalid or that the Respondent's answers for those items on the Respondent's answer key were incorrect.

   
   

6. There were 125 items to be answered by the examinee on the written portion of the examination. Petitioner answered 93 items correctly.

   
   

7. The maximum score that could be achieved on the written portion of the examination was 100 per cent. The weight to be given each item was determined by dividing 100 (maximum score) by 125 (total number of items) which equals 0.8.

   
   

8. The grade report on the written portion of the examination received by the Petitioner indicated that Petitioner score was 74. This score was determined by multiplying 93 (total correct answers) by 0.8 (weight given each correct answer). This equals 74.4 per cent but when rounded off in accordance with the Respondent's rules would be 74.00 which was the score shown on the grade report as achieved by the Petitioner.

9. The grade report listed the different areas of study that the examinees were required to be tested on and the score achieved by the examinee on each area study as follows:

   
   

   Hygiene and Ethics 7.00

   Florida Law 5.00

   Skin Care and Function 9.00

   Hair Services and Struct 9.00

   Cosmetic Chemistry 10.00

   Scalp and Facial Treat 8.00

   Coloring and Bleaching 10.00

   Permanent Waving 10.00

   Hair Straightening 4.00

   Implements 3.00

   
   

   Total Of Individual Scores 75.00

   
   

   This total score would meet the minimum score of 75.00 required for passing the examination.

   
   

10. The individual scores shown above in Finding of Fact 9 and on the Grade Report were determined by multiplying the number of correct answers achieved by the Petitioner in each area of study by 0.8 (weight given each correct answer) and rounding off in accordance with the Respondent's rules.

    
    

11. The individual scores as set out in the Grade Report are compared with the actual score derived as set out in Finding of Fact 8 as follows:

    
    

    Individual	Score	Actual	Score	Correct	Answers
    7.00		7.2		9
    5.00		4.8		6
    9.00		8.8		11
    9.00		8.8		11
    10.00		9.6		12
    8.00		8.0		10
    10.00		10.4		13
    10.00		9.6		12
    4.00		4.0		5
    3.00		3.2		4
    Total 75.00		74.4		93

    
    

12. The Grade Report does not explain how the Respondent arrived at the score of 74.00 or that the total of therounded off individual scores is not to be considered as the score achieved.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 476.144(2), Florida Statutes, requires the Barbers' Board (Board) to certify for licensure an applicant who satisfies the requirements of Section 476.114, Florida Statutes, and passes the examination administered by Board rule.

15. Rule 21C-16.001(9), Florida Administrative Code, provides in pertinent part as follows:

    
    

    The score necessary to achieve a passing grade shall be no less than ... seventy-five percent out of one hundred (100) percent on the written examination. In rounding percentages, any percentage which is point five (.5) or above shall be rounded up to the next whole number. Percentages less than point five (.5) shall be rounded down to the next whole number.

    
    

16. Rule 21C-216.001(6), Florida Administrative Code, requires that the written portion of the examination test the competency of the examinee in those areas set out in Finding of Fact 9. Although there is no specific requirement in the Board rules requiring a score to be calculated and rounded off in each of these areas of study, the Respondent has done this, creating some confusion. If this practice is to continue, then the Respondent should provide an explanation on the Grade Report. Since there is no requirement that an examinee achieve a certain score on each area tested, the more logical method of determining the total score achieved by the examinee is to multiply the total number of correct answers obtained by the examinee by the weight given each answer as was done by the Respondent and the result shown as the score achieved by the Petitioner on the Grade Report.

    
    

17. The Petitioner, as the person seeking licensure, has the burden of establishing by a preponderance of the evidence that the facts support her entitlement to the licensure. Florida Department of Transportation v. J. W. C. Co., Inc. (1 DCA Fla. 1981) and Rule 28-6.08(3), Florida Administrative Code. The Petitioner has failed to establish that the Respondent administered or graded her examination arbitrarily, capriciously, or in a manner devoid of logic and reason, notwithstanding the confusion resulting from the individual scores for each area of study being shown on the Grade Report.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order denying the Petitioner's request for reconsideration of her grade on the written portion of the January 1993 Barbers' Examination.

RECOMMENDED this 29th day of September, 1993, at Tallahassee, Florida.

WILLIAM R. CAVE

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 29th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2524

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. The first sentence of proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 4. The second sentence is not supported by competent substantial evidence in the record.

2. Proposed finding of fact 2 is not supported by competent substantial evidence in the record.

3. Proposed finding of fact 3 is more of a statement than a finding of fact.

4. Proposed finding of fact 4 is adopted in substance as modified in Finding of Fact 8.

5. Proposed finding of fact 5 is more of a statement than a finding of fact. There was no showing that Petitioner should be given credit for her answer to item 119.

Respondent's Proposed Findings of Fact.

1-2. Proposed findings of fact 1 & 2 adopted in substance as modified in Findings of Fact 6 & 8, respectively.

3. Proposed finding of fact 3 adopted in substance as modified in Findings of Fact 3-5.

COPIES FURNISHED:

Patricia Wilson, Pro se. 1023 Huron Street

Jacksonville, Florida 32205

Robert A. Jackson, Esquire Office of the General Counsel Department of Business

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

Darlene F. Keller, Director Division Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Jack McRay, Esquire Acting 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 to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to 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: 93-002524

Orders for Case No: 93-002524