STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES F. SMITH, III, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BUREAU ) OF EDUCATION AND TESTING, )

)

Respondent. )

Case No. 03-4856

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on February 16, 2004, by video teleconference at sites located in Tallahassee, Florida and Jacksonville, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: James F. Smith, III, pro se

5603 Silverdale Avenue

Jacksonville, Florida 32209

For Respondent: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

The issue is whether Respondent properly determined that Petitioner did not pass the February 2003 Restricted Barber Practical Examination.

PRELIMINARY STATEMENT

Respondent Department of Business and Professional Regulation, Bureau of Education and Testing (Respondent) advised Petitioner James F. Smith, III (Petitioner) that he had not passed the February 2003 Restricted Barber Practical Examination. Petitioner subsequently challenged Respondent's determination that he had failed the haircut portion of the examination.

By letter dated June 12, 2003, Respondent denied Petitioner's appeal, declining to change Petitioner's score of

69 to a passing grade of 75. Petitioner then requested a formal administrative hearing to contest the denial of his restricted barber license. Respondent referred the case to the Division of Administrative Hearings on December 26, 2003.

On January 9, 2004, the undersigned granted Respondent's Motion for Extension of Time to file responses to the Initial Order. On January 16, 2003, the parties filed a Joint Response to the Initial Order.

A Notice of Hearing dated January 21, 2004, scheduled the hearing for February 16, 2004. During the hearing, Petitioner

testified on his own behalf and presented the testimony of one additional witness. Petitioner offered one composite exhibit that was admitted into evidence. Respondent presented the testimony of three witnesses and offered seven exhibits that were accepted into the record as evidence.

The court reporter filed a copy of the transcript on

March 24, 2004. As of the date of issuance of this Recommended Order, Petitioner has not filed a proposed order. Respondent filed its Proposed Recommended Order on April 2, 2004.

FINDINGS OF FACT

1. On or about February 17, 2003, Petitioner completed the Restricted Barber Practical Examination. He received a score of

   69 on the examination. A total score of 75 was required to pass the examination.

2. A maximum of 45 points was available on the haircut portion of the test. Petitioner received 28.5 points for that portion.

3. Two examiners, who are licensed barbers, observed Petitioner performing the haircut on a live model. They are not supposed to begin grading and evaluating the haircut until it is complete. Therefore, it was not necessary for the graders to watch every move that Petitioner made during the haircut in order to properly assess his performance.

4. Petitioner specifically challenged the following test sections related to the haircut: (a) the top is even and without holes, C-1; (b) the haircut is proportional, C-4;

   (c) the sides and back are without holes or steps, C-5; (d) the sideburns are equal in length, C-7; (e) the outlines are even, C-8; and (f) the neckline is properly tapered, C-11.

5. Regarding section C-1, Examiner 106 found that the top of Petitioner's haircut was uneven. Examiner 501 did not find fault with the top of the haircut.

6. As to section C-4, Examiner 106 found that the haircut was proportional. Examiner 501 determined that the haircut was not proportional because the sides were unequal; the left side was shorter than the right side.

7. Examiner 106 did not give Petitioner full credit for C-

   
   

   5 because the examiner saw holes/steps in the back and the right side of the haircut. Examiner 501 did not observe these problems and give Petitioner full credit for C-5.

8. Examiner 106 did not give Petitioner credit for C-7 because the sideburns were unequal in length, i.e. the right sideburn was shorter than the left sideburn. Examiner 501 did not observe a problem with the sideburns.

9. As to C-8, Examiner 106 determined that the outlines of the haircut were uneven on the left and right sides. Examiner

   501 found that the outlines of the haircut were even.

10. Regarding C-11, Examiner 106 found that the neckline was properly tapered. Examiner 501 determined that the neckline was improperly tapered, i.e. uneven.

11. Both examiners have served in that capacity for several years. They have attended annual training sessions in order to review the exam criteria and to facilitate the standardization of the testing process. They are well qualified to act as examiners.

12. The examiners evaluated Petitioner's performance independently. They marked their grade sheets according to what they actually observed about the completed haircut. The scores of the two graders were averaged together to produce a final score.

13. The greater weight of the evidence indicates that the examiners accurately recorded their individual observations regarding Petitioner's performance on the haircut. If one of the examiners did not observe a particular part of the haircut, Petitioner was given credit for that section. The examiners do not have to reach the same conclusion about each section of the test in order for the test results to be valid and reliable.

14. Petitioner did not offer any persuasive evidence to dispute the manner or method by which Respondent accrues and calculates examination points. Petitioner would have failed the test based on either grader's independent scores. Therefore,

    Petitioner would not have passed the examination even if Respondent had not used one of the grade sheets in calculating Petitioner's final score.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).

16. In an administrative challenge to the results of an examination process, an applicant must establish the following by a preponderance of the evidence: (a) the questions are misleading; (b) the scoring of the exam was erroneous; and/or

    (c) the responses should receive additional consideration. See Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Therefore, Petitioner has the burden of providing by a preponderance of the evidence that he passed the examination. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 2nd DCA 1981).

17. In this case, Petitioner did not meet his burden. He failed to show that Respondent should have given him additional points for the haircut portion of the February 2003 Restricted Barber Practical Examination.

RECOMMENDATION

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

RECOMMENDED:

That Respondent enter a final order confirming Petitioner's examination score and dismissing his challenge.

DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2004.

COPIES FURNISHED:

James F. Smith, III 5603 Silverdale Avenue

Jacksonville, Florida 32209

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Nancy Campiglia, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Gus Ashoo, Bureau Chief

Bureau of Education and Testing Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0791

Julie Malone, Executive Director Board of Barber

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: 03-004856

Orders for Case No: 03-004856