The Issue Whether Respondent Nancy Moss' cosmetology instructor's license should be suspended or revoked, or whether other disciplinary action should be taken by Petitioner against Respondent for alleged violation of Section 477.025(1), Florida Statutes (1980 Supplement), and Section 477.028(1)(b), Florida Statutes (1979).
Findings Of Fact On May 28, 1981 Petitioner Department of Professional Regulation, Board of Cosmetology filed an Administrative Complaint seeking to suspend or revoke or take other disciplinary action against Respondent Nancy Moss as licensee and against her license as a cosmetology instructor. The complaint charged Respondent Moss with three (3) counts of misconduct for holding herself out as a cosmetologist and a cosmetology instructor and for operating a cosmetology salon without being duly licensed. Respondent holds an inactive cosmetology instructor's license #1C 0083468. The inactive receipt was dated July 31, 1980 and expired June 30, 1981 (Petitioner's Exhibit 1). Respondent was the owner and operator of the American Hairstyling Academy, a barber school duly licensed by the State Board of Independent Post- Secondary Vocational, Technical, Trade and Business Schools during the time pertinent to this hearing. The school ceased operation on July 1, 1981. The Director of the State Board of Independent Post-Secondary Vocational, Technical, Trade and Business Schools, a witness for Petitioner, made an official visit to the American Hairstyling Academy on January 21, 1981. He saw a woman sitting in one (1) of the six (6) or seven (7) chairs in the facility with rollers in her hair and saw Respondent Moss performing a service on the woman's hair. After the Director had identified himself, Respondent gave him the American Hairstyling Academy school records to examine and then proceeded to complete her work on the woman's hair. The Director noticed a room with clothes hanging on racks and trinkets in a counter with a sign, "Boutique," near the door. The room had been previously designated as a classroom for the barber school. Before the Director left, one (1) other person entered the premises. (Transcript, pages 12 through 34.) The Supervisor I, Office of Investigative Services, Jacksonville, Region II, made an appointment for a shampoo and set with Respondent Moss on February 4, 1981 at the American Hairstyling Academy. She appeared at the designated time, and Moss performed the shampoo and set. The Supervisor saw a room in which clothes were hanging and saw an area beyond that room which was separated with a cloth curtain. Before the Supervisor left, one (1) other person entered the premises. The Supervisor paid for the hair service and left the school. (Transcript, pages 34 through 41.) An investigator for Petitioner saw two (2) women at the academy, one having her hair serviced and one (1) waiting for Moss. The investigator was told by Respondent that teaching was done at the school and that there were two students enrolled, but no student records were produced for her to examine. She saw no blackboards or what she recognized as a classroom. (Transcript, pages 41 through 51.) A witness for Respondent had his hair washed, conditioned and cut many times in Respondent's barber school by students. He has had the same service done by the Jacksonville Barber College. (Transcript, pages 62 through 67.) A former student stated that she attended the American Hairstyling Academy for two (2) months, and Respondent Moss supervised the work done by the students. She attended classes with five (5) other students in a classroom at the American Hairstyling Academy and checked out books from the library, but she did not complete the course. (Transcript, pages 67 through 71.) Respondent called another witness who had had students at the barber school work on her hair on approximately ten (10) different occasions, but Respondent Moss did not work on her hair. (Transcript, pages 71 through 74.) The Hearing Officer finds that the licensed barber school owned and operated by Respondent Moss prior to July 1, 1981 had a few students, six (6) or seven (7) chairs, a small area that was used by students and Respondent for instruction and a minimal library. The testimony and evidence presented by both parties show that Respondent Moss was a practicing barber in a licensed barber school. Her acts could also be classified as practicing cosmetology although she said she practiced barbering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint filed against the Respondent Nancy Moss be dismissed. DONE and ORDERED this 4th day of November, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 4th day of November, 1981. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stanley B. Gelman, Esquire 207 Washington Street Jacksonville, Florida 32202 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The parties stipulated to the fact that the Petitioner has jurisdiction over both Respondents. In addition, Petitioner presented the licensing history of each Respondent which reflected that both possess current appropriate licenses. On March 4, 1985, Respondent, at his shop, accomplished a foil frosting on the complainant, Ms. Young, who had visited Respondent's shop for hair dressing services several times in the past. On each occasion, Respondent worked on her himself giving her over the period three permanent waves and four frostings. Ms. Young was familiar with the frosting process having had her hair done that way since 1967. There are several legitimate ways a hair frosting can be done. One is through a cap placed over the head with strands of hair pulled through small holes and bleached. In the foil frosting method, the affected strands of hair are isolated, bleach is applied, and the bleached hair is wrapped in a piece of foil until done. Frosting can be considered light, medium, or heavy, depending upon the amount of hair that is frosted. Ms. Young usually has a heavy frosting done. The last two times Respondent frosted her hair prior to the incident complained of here, Ms. Young contends her hair came out orange and red instead of blonde. She complained to Respondent about this both in person and by phone and Respondent allegedly told her he would correct the problem by first applying a dye to her hair and then frosting it. On the day in question, according to Ms. Young, Respondent did as he said he would and dyed her hair a deep brown. He then started to frost it even though she advised him at the time the dye had come out too dark. According to Ms. Young, Respondent told her not to worry about it. Ms. Young relates that Respondent left the bleach on her hair almost four hours. He checked her hair several times during that period but did nothing to stop the bleaching process. She contends she told Respondent that she was under the dryer too long but he either ignored her or told her to be quiet. After she became seriously concerned that her hair might be damaged, Ms. Young took herself out from under the dryer and began to remove the foil. At this point, she contends, Respondent came and took her to the wash area where he unwrapped the remaining foil packets and had Ms. Ayotte wash the bleach out of Ms. Young's hair. After this was done, Ms. Young was put back under the dryer and at this point, Ms. Young alleges, when she felt her hair, it had the consistency of taffy . She poked at it with a hair pick and found that large amounts of hair broke off each time she touched it. When she showed this to Respondent, he allegedly stated it was only dead ends coming off. At this point, convinced she would get no satisfaction from the Respondent, she paid him the charge for a frosting and left the shop. Respondent, she claims, refused to do anything more for her at the time but merely told her to go home and put a conditioner on her hair. According to Ms. Young, her hair continued to come out all evening each time she touched it which highly distressed and upset her, a state confirmed by her neighbor. By the following morning, she claims, she had accumulated seven or eight baggies of her hair which had come out. No matter how much she washed it and put conditioner on it, nothing helped and her hair continued to come out. The day after her visit to Respondent's shop, Ms. Young went to a beauty supply house where she was sold a vitamin treatment for her hair which she applied. Several days later she went to the beauty shop run by Ms. Kuhn where her hair was examined not only by Ms. Kuhn but also by Ms. Korman, both of whom concluded that her hair had been overly processed. She was given a procedure to follow for conditioning her hair which was trimmed back to a maximum length of two to three inches all over her head. Ms. Young indicates that the previous frostings she was given by Respondent were satisfactory as to hair texture if not as to color. However, she contends that the procedure he used on this occasion was different than that he used previously. She believes 75 percent of her hair had bleach applied to it. As a result of her dissatisfaction with Respondent, Ms. Young wrote a letter of complaint to DPR followed up by a formal complaint. The resultant file was forwarded to Ms. Markowitz, the local investigator, whose report was forwarded to Ms. Jimenez for consultation. Ms. Jimenez neither examined Ms. Young nor spoke with any of the witnesses involved but, based solely on her evaluation of the file only, which included Ms. Young's written statement, concluded Respondent was guilty of extreme negligence. She based her opinion on Ms. Young's recitation of the procedure followed by Respondent, and she readily admits that if the information given her was not accurate, her opinion would not be valid necessarily. Mr. Bannett does not deny applying a bleach solution to Ms. Young's hair and admits to having done each of her three previous frostings. He contends, however, that she was satisfied each time. 12 As a professional beautician, he has done thousands of frostings over the thirty or more years he has been in the business and has not experienced any problems until this time. He claims to work as a mechanic rather than as an artist in that he does a frosting the same way each time and does not deviate from his procedure. He believes that only through a routine can he effectively accomplish the process successfully. He categorically denies having dyed Ms. Young's hair before frosting it stating that to do so would have been counterproductive. It would require the bleaching of not only the natural hair color but also the dyed and would mean the bleach would have to stay on far too long. In a situation needing a color change, he puts the coloring on the hair remaining uncovered after the application of the foil packs. In a frosting Mr. Bannett starts at the bottom of the head applying the bleach and wrapping the treated area. He then does the sides the same way and works his way up to the top. It takes him about 20 to 25 minutes to accomplish all the treating and wrapping, after which he places the customer under the dryer for another 25 minutes. At that point, after 45 to 50 minutes, he checks the color of the hair. If it appears to be appropriate, he has the bleach washed from the customer's hair. If the color is not right, he replaces the wrapper and lets the bleach stay a little longer. Mr. Bannett contends that when he checked Ms. Young's hair it was right and Ms. Ayotte washed out the bleach. Not only Mr. Bannett, but also Ms. Ayotte and Ms. Ascola, both of whom were present and observed Ms. Young during the process contend she was happy with the result. They also deny that prior to the frosting Ms. Young's hair was orange or red. If Ms. Young was unhappy, they say, it was because of other matters because she left the shop happy with the way her hair looked when Mr. Bannett was through. Unfortunately, though Mr. Bannett indicates he routinely makes records of the service he gives each of his customers, if the customer does not return to the shop within a short period of time, he destroys them. Here, even though Ms. Markowitz interviewed him only slightly more than three months after the incident in question, the records had already been destroyed and he could not recall what was on them. As a result, his testimony is based solely on his limited recollection and his usual routine. It is most unlikely, however, that if Ms. Young were as unhappy as she relates, some other customer in the shop would not have overheard her discussions with Respondent or observed the state of her hair. She presented no evidence other than her own allegations as to what happened in the shop. The other evidence as to the cause of the damage was not incident specific. The over application could have been by anyone, including the complainant. On balance, therefore, it would appear that without question Mr. Bannett did a frosting of Ms. Young's hair on the date alleged. There is also no doubt that the hair was damaged by the improper application of chemicals to it. However, Petitioner has failed to conclusively show that it was Respondent who improperly applied these chemicals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Administrative Complaint in this case against the Respondents Ronald Bannett and Style and Color of Sunrise, Inc., be dismissed. DONE and ORDERED this 10th day of November, 1986, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 10th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1581 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 to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4 Accepted and incorporated. 5-8 Rejected as unproven. 9 Accepted and incorporated. Rulings on Proposed Findings of Fact Submitted by the Respondent Accepted and incorporated. Rejected as irrelevant to resolution of the issues of fact. 3&4 Rejected as recitations of the evidence and not findings of fact. 5 Rejected as commentary on the evidence and not as finding of fact. COPIES FURNISHED: Jane H. Shaeffer, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert Fogan, Esquire 2170 S.E. 17th Street Fort Lauderdale, Florida 33316 Myrtle Aase, Executive Director Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Manatee County School Board (Petitioner or Board) has just cause to terminate the employment contract of Matthew Kane (Respondent or Mr. Kane).
Findings Of Fact Petitioner is a duly-constituted school board, charged with the duty to operate, control, and supervise all free public schools within the District. Respondent has been employed by the District since September 25, 1997. Respondent was a teacher at the District’s Lakewood Ranch High School from fall 2003 through spring 2007. Respondent became an assistant principal at Manatee High School (MHS) for the 2007-2008 school year, and served in that position through January 1, 2012. On January 2, 2012, Respondent became the MHS interim principal for the rest of the school year. Respondent returned to his prior position of assistant principal at MHS on July 1, 2012, when Don Sauer was hired as the new MHS principal. Respondent was an MHS assistant principal for most of the 2012-2013 school year; six weeks before the school- year end, he was transferred to an assistant principal position at the District’s Southeast High School. At the time of hearing, Respondent held an annual contract for an assistant principal position for the 2013-2014 school year. As a teacher, assistant principal, and interim principal, Respondent was at all times required to abide by all Florida laws pertaining to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (adopted as State Board of Education rules), and the Board’s policies and procedures that have been promulgated as rules (hereafter Board policies).5/ On August 1, 2013, Respondent was placed on paid administrative leave during the pendency of an investigation that ultimately led to this proceeding. On August 14, 2013, Respondent was charged with felony failure to report known or suspected child abuse, and with providing false information to a law enforcement officer. The latter charge was subsequently dismissed. By letters dated September 25, 2013, and October 4, 2013, hand-delivered to Respondent, the superintendent provided written notice of his intent to recommend termination of Respondent’s employment. The Complaint, with allegations and charges against Respondent on which the recommendation was based, was delivered with the October 4, 2013, letter. Respondent was also informed that the superintendent would recommend to the Board that Mr. Kane be suspended without pay pending final resolution of the Complaint. On October 14, 2013, during a Board meeting at which Respondent was represented, the Board adopted the superintendent’s recommendation to suspend Respondent without pay pending the outcome of any administrative hearing requested by Respondent. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee’s Answer to Administrative Complaint. At issue in this proceeding is whether Mr. Kane was informed of alleged improprieties with female students by an MHS paraprofessional, Rod Frazier, who was an administrative parent liaison handling student discipline and a football coach. If so, the issue then becomes whether Mr. Kane violated obligations imposed by Florida law and Board policies related to protecting students, including the obligations to report suspected child abuse and to report allegations of misconduct by instructional personnel affecting the health, safety, or welfare of students. The core allegations in the Complaint are that Mr. Kane was apprised of prior alleged inappropriate incidents involving Mr. Frazier and female students, yet he did nothing to intervene, which allowed Mr. Frazier to remain at MHS, placing the safety and well-being of students at risk. Following Mr. Kane’s stint as MHS interim principal, a new principal arrived for the 2012-2013 school year, Don Sauer. Others--not Mr. Kane--were instrumental in bringing some of the allegations of Mr. Frazier’s improprieties to the attention of the new MHS principal in November 2012. The person who coordinated the effort to bring these matters to Mr. Sauer’s attention was Steven Rinder. Mr. Rinder is the coordinator of the student assistance program, which offers advice and assistance to students and families regarding non-academic issues that can affect students’ academic performance. Mr. Rinder credibly testified that over the few weeks preceding his communication with Mr. Sauer, he was approached independently by several MHS teachers and other instructional staff, including Mike Strzempka (teacher), Lynn Aragon (teacher), Stephen Gulash (administrative parent liaison), Keltie O’Dell (teacher), and Jackie Peebles (teacher), regarding their concerns about Mr. Frazier’s inappropriate interactions with students. Mr. Rinder found these independent reports unusual, indicative of a problem needing attention, and significant enough that he went to Mr. Sauer about the concerns. Mr. Sauer told Mr. Rinder to make a list of the allegations, without names, and Mr. Sauer would do what ought to be done with a “hot potato”: pass it on. Mr. Rinder put together a list of the allegations that had been conveyed to him. In addition, he obtained a list from Mr. Gulash of the incidents he had observed or had been informed of, and Mr. Rinder added those items to his list. Mr. Rinder then gave the document to Mr. Sauer, who passed the “hot potato” on to the District’s Office of Professional Standards (OPS). As witnesses uniformly agreed, there was no question that the list, taken as a whole, raised serious concerns about Rod Frazier’s conduct with female students that would amount to, at the least, employee misconduct. Several allegations, standing alone, raised serious concern of inappropriate touching of female students, such as Mr. Frazier behind closed doors with a female student sitting on his lap feeding him cake, and Mr. Frazier shoving a water bottle between a female student’s legs. Upon receipt of the Rinder list on November 14, 2012, OPS initiated an investigation of Mr. Frazier. A letter from the superintendent notified Mr. Frazier as follows: “Effective Thursday, November 15, 2012, you are being placed on paid administrative leave pending the outcome of our investigation of possible misconduct on your part.” On Thursday afternoon, November 15, 2012, OPS specialist Debra Horne went to MHS and interviewed four of the persons contributing to the list of allegations. Ms. Horne spoke with Mr. Rinder and Mr. Gulash and got some information regarding the names of the sources for each allegation, and the names of the students involved in the alleged incidents. Ms. Horne also interviewed Mike Strzempka and Lynn Aragon, sources for several allegations. Ms. Horne did not interview Jackie Peebles that day, but learned that Ms. Peebles was the teacher who walked in on Mr. Frazier in his office and found a female student sitting on his lap feeding him cake. Ms. Horne also learned that the female student on Mr. Frazier’s lap was D.K., a senior, no longer at MHS, but at the District’s Palmetto High School. Ms. Horne did not interview Keltie O’Dell that day, nor Rod Frazier, nor D.K. or any of the other students whose names she had. After those four interviews, Ms. Horne met with MHS principal Sauer and assistant principals Kane and Greg Faller, in Mr. Sauer’s office. She called her boss, Scott Martin, a District assistant superintendent, and he participated by speaker phone. The purpose of the meeting was to bring everyone up to speed as to where Ms. Horne was in the investigation. Although the testimony was conflicting, the credible evidence established that during this meeting, Ms. Horne and Mr. Martin discussed the contents of the Rinder list, if not line by line, then item by item, and Ms. Horne reported that each allegation was either unverified or old. As to the old allegations, Ms. Horne reported that the concerns had been brought to the attention of either former principal Robert Gagnon or one of the assistant principals, and those administrators had already addressed the concerns with Mr. Frazier. When Ms. Horne made that statement, the two assistant principals present and listening--Mr. Kane and Mr. Faller--expressed agreement by nodding their heads. At that point, Mr. Martin told Ms. Horne to wrap it up and return to their office. Strangely, despite Ms. Horne having learned that “old” allegations had been reported to and addressed by administrators, Ms. Horne apparently did not interview the administrators about their knowledge of the allegations or what had been done to address those allegations with Mr. Frazier, either on that day or at any other time before she left OPS in late January 2013. There was no documentation in Mr. Frazier’s file of any kind of discipline for inappropriate interactions with female students-- no documentation of any conferences with administrators, directives, warnings, reprimands, or suspensions. Mr. Kane acknowledged that at the meeting with Ms. Horne, the Rinder list itself was there; he skimmed the document, he did not read it item by item. It is difficult to imagine that as an assistant principal, Mr. Kane would not have been more interested in the specific allegations made against an instructional staff member, particularly when Mr. Kane nodded in agreement with Ms. Horne’s report that the allegations were old and had been reported to and addressed by administration. Mr. Kane did not offer any information to Ms. Horne about the allegations he had skimmed. At hearing, he explained that he thought he was required to stay out of the OPS investigation. Inconsistently, he volunteered information about three staff members contributing to the list of allegations, stating at the meeting that Mr. Gulash, Ms. Aragon, and Mr. Strzempka all had grudges against Mr. Frazier. Ms. Horne left MHS and returned to the District office to meet with Mr. Martin. Mr. Martin testified that he pressed Ms. Horne regarding whether she had gone down every rabbit trail, with the implication that he was satisfied that Ms. Horne had exhausted her investigative options by conducting only four interviews in the span of a few hours. Ms. Horne testified that she asked to interview D.K. and the other students whose names she had obtained, and also suggested conducting random interviews of students at MHS. Mr. Martin cut her off from this notion, stating that since no student “victim” had come forward, there was no reason to interview any students. Prior to meeting with Ms. Horne, Mr. Martin discussed the investigation with Mr. Gagnon. Mr. Gagnon was MHS principal until January 2, 2012, when he was promoted to an assistant superintendent position in the District office and Respondent became MHS interim principal. Mr. Gagnon’s message to Mr. Martin was that Mr. Frazier had been the subject of rumors before that had allegedly ruined his marriage, and that it would be bad if Mr. Frazier was still suspended by the next evening (Friday, November 16, 2012), because there was an important football game, and rumors would fly if Mr. Frazier was not coaching at the big game on Friday night. Mr. Gagnon also told Mr. Martin that the investigation should proceed and that if Mr. Frazier did what he was alleged to have done, then the District should “bury him under the school.” Mr. Gagnon characterized this latter message as the primary message. Nonetheless, at best he was sending a mixed message by suggesting that the District should thoroughly investigate, as long as it did so in one day so the coach could return to work in time for the big game Friday night. Apparently keying on the game-night part of the mixed message, Mr. Martin made the decision after meeting with Ms. Horne that the investigation was going nowhere. He directed that Mr. Frazier be removed from paid administrative leave and returned to work the next day, Friday, November 16, 2012. Meanwhile, Ms. Horne went back to MHS on Friday to complete at least a few of the obviously missing steps in the investigation, by interviewing Jackie Peebles, Keltie O’Dell, and Mr. Frazier. Ms. Peebles credibly testified that in her interview, Ms. Horne made it clear that she only wanted to hear about recent incidents, not old matters that had been reported in the past. Ms. Peebles found Ms. Horne more interested in allegations of grudges against Mr. Frazier than in allegations of inappropriate interactions with female students. Ms. Horne testified that she was surprised to learn that Mr. Frazier had been taken off paid administrative leave and returned to work Friday morning, because she believed the investigation was still ongoing. However, since Mr. Frazier was placed on leave pending the investigation’s “outcome,” by taking Mr. Frazier off leave and returning him to work on Friday, November 16, 2012, the implication was that the investigation had reached its “outcome” and was concluded. Consistent with that implication, if the investigation was not formally closed it at least went dormant after November 16, 2012. The investigation got a second life in early January 2013, when a letter written by D.K. was delivered to Mr. Sauer, detailing some of Mr. Frazier’s inappropriate interactions with D.K. while she was at MHS in 2010-2011 and 2011-2012. D.K.’s letter corroborated some aspects of the Rinder-list allegations, and described additional incidents, such as more closed-door meetings in Mr. Frazier’s office, when Mr. Frazier would hug her, rub her upper leg, and grab her thigh and buttocks. Mr. Sauer immediately sent the letter to OPS. With an alleged student victim now having come forward, OPS was compelled to resume the dormant investigation, and finally interview D.K. Shortly after D.K. was interviewed, Mr. Frazier was put back on paid administrative leave. This time, the allegations were shared with the Bradenton Police Department, which initiated its own investigation, culminating in criminal charges against Mr. Frazier for battery and interfering with school attendance. The Board issued an administrative complaint seeking to terminate Mr. Frazier’s employment, but Mr. Frazier resigned in lieu of termination proceedings. As an outgrowth of both the Board’s investigation into Mr. Frazier’s alleged misconduct and the Bradenton Police Department’s investigation of Mr. Frazier, both the Board and the Bradenton Police Department initiated investigations into the actions and inactions of Respondent and others. What Did Respondent Know And When Did He Know It? As the prelude above suggests, the underlying matters involving Mr. Frazier must be described in order to address the core allegations against Respondent. However, the focus of this proceeding is not on whether there is proof of the allegations against Mr. Frazier, nor is the focus on how the investigations were handled; neither Mr. Frazier nor OPS personnel are on trial. Instead, as charged in the Complaint, the focus here is on whether allegations of Mr. Frazier’s inappropriate interactions with students were brought to Respondent’s attention; if so, when; and if so, what he did or did not do in response. 2009-2010: Patting Behinds; Closed Door Meetings; Lingerie Party At MHS, assistant principals have a variety of duties; they may be assigned primarily to certain areas, with assignments changing from time to time. For the 2009-2010 school year, one of Mr. Kane’s primary duties was to serve as head of the MHS discipline office. The discipline office is staffed by administrative parent liaisons (liaisons). The liaisons are the school’s disciplinarians--they handle student disciplinary referrals, communicate with parents about student discipline, and teach/supervise students serving in-school suspensions and “time- outs.” The liaisons also monitor areas such as the courtyard, cafeteria, and parking lot. As discipline office head in 2009- 2010, Mr. Kane supervised the liaisons, including Mr. Frazier. L.S. has been a school bus driver for the District for ten years. In the 2009-2010 school year, L.S.’s daughter, R.S., was a senior at MHS and L.S. had an MHS bus route. On several occasions during the 2009-2010 school year, while waiting at MHS in her bus, L.S. observed Mr. Frazier patting female students on their behinds. Also during that year, L.S. occasionally went to Mr. Frazier’s office with student discipline referrals, and she would find Mr. Frazier in his office behind closed doors with female students. She found this conduct inappropriate, and reported it to Mr. Kane. L.S.’s daughter, R.S., frequently got in trouble, and was often in time-out. According to R.S., one day in February 2010, near Valentine’s Day, when she was in the time-out room supervised by Mr. Frazier, a female student, C.H., came in to ask Mr. Frazier if he would be attending her “lingerie party,” and Mr. Frazier responded that he would be there. The lingerie party discussion made R.S. uncomfortable, and she asked to go to the principal’s office. When Mr. Frazier refused, R.S. walked out and headed toward the principal’s office. R.S. testified that she was intercepted by Mr. Kane and Student Resource Officer Freddy Ordonez. R.S. said that she told them about the “lingerie party” dialog with Mr. Frazier, and Officer Ordonez told R.S. that she would be arrested if she kept making false accusations. R.S.’s testimony about her “lingerie party” report to Mr. Kane was inconsistent with a prior statement she gave during an investigation of Rod Frazier. In that prior statement, R.S. told the investigator that it was Robert Gagnon, then-principal of MHS, who was with Officer Ordonez when R.S. reported the “lingerie party” incident. Regardless of whom R.S. may have reported to that day, R.S.’s mother testified credibly that R.S. told her about the “lingerie party” incident when R.S. came home from school upset that day. L.S. then went to MHS to talk to Mr. Kane in his office to express her concerns about Mr. Frazier. In addition to relaying what R.S. had told her about the “lingerie party,” L.S. also told Mr. Kane about Mr. Frazier’s inappropriate conduct that she had personally observed on several occasions: L.S. told Mr. Kane that she had seen Mr. Frazier patting girls on their behinds, and that when she went to see Mr. Frazier in his office, she found him with female students and the door closed. Mr. Kane told L.S. that he would check into the allegations. At hearing, Mr. Kane testified that he has no recollection of the meeting L.S. described; he did not deny it occurred, saying only that he does not remember it and does not recall L.S.’s report about Mr. Frazier. Nonetheless, L.S.’s testimony was credible and is credited.6/ Mr. Kane’s testimony that he has no memory of L.S.’s allegations reported to him during the 2009-2010 school year means that, despite telling L.S. that he would look into her report about Mr. Frazier, Mr. Kane did nothing to document, investigate, or report the allegations. 2010-2011: Calling Girls Out Of Class; Cake Incident; Golf Carts Jackie Peebles has been a teacher at MHS for eight years. In the 2010-2011 school year, she taught remedial math. Ms. Peebles described how she noticed that Mr. Frazier tended to call female students out of class when they were dressed inappropriately. The students would leave for a while, and return wearing appropriate clothes. Ms. Peebles credited Mr. Frazier with doing his job to correct dress code violations. However, the calls increased in frequency, for one student in particular, D.K., in her remedial math class. Mr. Frazier would frequently call to ask Ms. Peebles to send D.K. to his office. At first, D.K. would leave class wearing short- shorts and return in sweat pants from lost and found, or she would leave wearing a tank top and return wearing Mr. Frazier’s football jacket. Again, Ms. Peebles thought Mr. Frazier was just doing his job, but she became concerned because D.K. had an attendance problem and needed to be in class. The problem got worse, with D.K. leaving when called to Mr. Frazier’s office and not coming back. Ms. Peebles confronted Mr. Frazier, telling him that she was going to keep D.K. in her classroom whether she was dressed right or not, because D.K. was falling further and further behind. Mr. Frazier stopped calling Ms. Peebles to release D.K. Instead, Ms. Peebles would hear D.K.’s telephone buzz, watch D.K. look at the phone, and then D.K. would announce that she forgot to tell Ms. Peebles that she has to go to Mr. Frazier’s office. Ms. Peebles reasonably surmised that Mr. Frazier was sending text messages to D.K. After this happened a few times, one day Ms. Peebles took D.K.’s phone, put it in her drawer, and kept teaching. The phone kept buzzing and buzzing. Ms. Peebles opened her drawer to turn off the phone, and saw a message on the screen asking why D.K. hadn’t come to his office yet, and that he heard she was wearing her short-shorts again. Ms. Peebles reasonably inferred that this message was from Mr. Frazier. Ms. Peebles testified that her concerns about Mr. Frazier calling girls (especially D.K.) out of class and texting were heightened by the rather alarming “cake incident,” which occurred shortly after the short-shorts text message. Ms. Peebles testified that one afternoon, she had broken up a fight between two students and escorted the students to the discipline office for referral to a liaison. Ms. Peebles found the discipline office’s secretary/receptionist, Aida Coleman, at her desk in the large outer area. Ms. Peebles looked around and found that the doors to the liaisons’ interior offices were all open and the offices empty, except that Mr. Frazier’s office door was closed. Ms. Peebles looked at Ms. Coleman with frustration because no one seemed available to help her with her disciplinary problem, but Ms. Coleman volunteered that it was all right, Mr. Frazier was in his office with a student. Ms. Peebles took this to mean that she could go in, so she left the two students in separated chairs, one by Ms. Coleman’s desk. Ms. Peebles walked the short distance (estimated at around twenty feet) to Mr. Frazier’s office door. She knocked and opened the door simultaneously, and stepped a few feet inside. She was shocked to find Mr. Frazier seated behind his desk with D.K. sitting sideways across his lap, feeding him cake. Ms. Peebles said that she yelled something like: “What the hell is going on in here?” Although she described it as a “yell,” when asked to gauge how loud she was by comparison to others speaking at the hearing, Ms. Peebles did not attribute a great deal of volume to her “yell”--it was more a matter of what she said than how loudly she said it. Ms. Peebles was troubled by the fact that Mr. Frazier and D.K. did not move, and both acted like nothing was wrong with their seating arrangement and activity. Ms. Peebles then told D.K. to “get off” Mr. Frazier’s lap. D.K. did so, but she only moved as far as Mr. Frazier’s desk, where she perched facing him. Ms. Peebles then told D.K.: “No, come around here and sit in a chair like a lady.” D.K. did as she was told. Ms. Peebles then told Mr. Frazier that she had a referral requiring his attention, with two students waiting outside. Mr. Frazier got up and went out with Ms. Peebles to address the awaiting disciplinary matter. Ms. Peebles reported this incident to Respondent the next day. Ms. Peebles had a clear recollection of her conversation with Respondent in which she described the cake incident, and Respondent assured her he would take care of it. Ms. Peebles was relieved, because she assumed she could count on Respondent to address the matter with Mr. Frazier. Ms. Peebles also told another liaison, Stephen Gulash, about the cake incident at some point shortly after it occurred-- her best recollection was that she told Mr. Gulash the next morning. Mr. Gulash corroborated that Ms. Peebles told him about the cake incident--he thought it may have been right after it occurred, because she seemed upset. Ms. Peebles does not recall being upset when she told Mr. Gulash about the incident. While Respondent suggests this is an inconsistency that undermines the credibility of both Ms. Peebles and Mr. Gulash, this minor difference in perception and recollection is immaterial and understandable. The incident itself was not a happy thing to observe or describe. Even a number of years later, Ms. Peebles seemed upset when describing the upsetting incident at hearing. When Ms. Peebles told Mr. Gulash about the cake incident, Mr. Gulash asked Ms. Peebles if she had reported the incident to Mr. Kane. Ms. Peebles told him either that she had just done so or that she was about to. The material details provided by Ms. Peebles--that the cake incident occurred as she described it, that she reported the incident to Respondent the next day, and that Respondent assured her he would take care of it--were credible and are credited. The most alarming aspect of the cake incident is that D.K. was sitting on Mr. Frazier’s lap feeding him cake in the privacy of his office, a clearly inappropriate and suggestive intimacy between this MHS staff disciplinarian and the female student he frequently called out of class to come visit him behind closed doors. D.K. provided credible corroborating testimony of this most troubling aspect of the cake incident, acknowledging that she was sitting on Mr. Frazier’s lap feeding him cake when Ms. Peebles walked in and was shocked. Respondent contends that Ms. Peebles’ testimony was undermined by D.K.’s testimony that she could not recall what, if anything, Ms. Peebles said when she opened the door and by Ms. Coleman’s testimony that she did not recall an encounter when Ms. Peebles was yelling at Mr. Frazier. Ms. Peebles’ verbal reaction to the shocking scene pales in significance to the scene itself. Moreover, the inability of D.K. and Ms. Coleman to recall did not effectively undermine Ms. Peebles’ clear, credible testimony. It is by no means clear that Ms. Peebles’ words to Mr. Frazier and D.K. (which D.K. might well want to forget or minimize), delivered while Ms. Peebles was standing a few feet inside the office with her back to the door, would have been heard by Ms. Coleman at her desk twenty feet away from the door, particularly since Ms. Peebles had deposited one of the fighting students in a chair next to Ms. Coleman’s desk. Respondent testified that he does not recall Ms. Peebles reporting the cake incident to him. He added that if she had reported the incident as she described it at hearing, he believes there is no way he would not have acted, by documenting the report in writing or having Ms. Peebles do so, bringing it to the principal’s attention, and confronting Mr. Frazier with what was plainly inappropriate, improper, unprofessional conduct. Ms. Peebles, however, was steadfast and credible in maintaining that she reported the cake incident to Mr. Kane the day after it occurred (corroborated by Mr. Gulash). Ms. Peebles also reported the cake incident to Mr. Faller a year later, after reporting another inappropriate Frazier incident to Mr. Faller (discussed below in school year 2011-2012).7/ Respondent attempted to undermine Ms. Peebles’ credibility by dwelling on the lack of clarity on insignificant points, including when the cake incident occurred, what Mr. Kane’s duties were at the time, and where Ms. Peebles and Mr. Kane were when she told him about the incident. Respondent’s attempt was not effective. For the purposes of this proceeding, it is enough to know that the cake incident took place either in the 2010-2011 school year or the 2011-2012 school year--the only two years that D.K. was a student at MHS. The incident most likely occurred in the 2010-2011 school year, when D.K. was in Ms. Peebles’ math class. Ms. Peebles could not recall exactly when the incident occurred; she volunteered early on in her testimony, and repeated often, that she has never been good at remembering dates.8/ Likewise, regardless of Mr. Kane’s duties at the time of the cake incident report, Ms. Peebles explained why he was an appropriate administrator for her to report to. Ms. Peebles testified initially that she thought Mr. Kane was head of discipline when she reported the cake incident to him. That was shown to be not true. Mr. Faller took over the assignment as discipline office head in the 2010-2011 and 2011-2012 school years. However, Ms. Peebles added that after Mr. Faller assumed that role, Mr. Kane became Ms. Peebles’ direct supervisor (not disputed by Respondent), and that she may have reported the cake incident to him for that reason. Later still, Mr. Kane was MHS interim principal, and if the cake incident occurred then, she might have reported it to him for that reason. Ms. Peebles credibly summed it up this way: “Mr. Kane never left the realm of being someone I thought that I would go to.” (Tr. 568). As to the setting where Ms. Peebles reported the cake incident to Mr. Kane, Ms. Peebles offered her recollection that they were in the discipline office, in the corner interior office assigned to the assistant principal serving as head of the discipline office. But whether Ms. Peebles reported the cake incident to Mr. Kane in the office assigned to the head of discipline, as she recalled, or in an office in the adjacent building when he became Ms. Peebles’ direct supervisor, the setting is insignificant and the lack of clarity does not undermine the credible testimony regarding the material details. Ms. Peebles was genuinely troubled to be offering testimony adverse to Mr. Kane. Ms. Peebles likes and respects Mr. Kane as an educator and administrator, and spoke highly of his performance as an assistant principal and as her supervisor. Her general regard for him is why she was relieved to report the cake incident to him--she trusted him to follow through when he assured her that he would take care of it. Mr. Kane was equally complimentary of Ms. Peebles, describing her as one of the good teachers, and as someone who would not set out to hurt him. Respondent’s testimony expressing no recollection of Ms. Peebles’ cake incident report to him and offering hindsight assurance that he would have acted on such a report was not as credible as Ms. Peebles’ testimony and is not credited. Instead, Ms. Peebles’ report was the second time Respondent was informed of Mr. Frazier’s inappropriate closed-door sessions with female students--this time, with the added observation that Mr. Frazier was engaged in inappropriate physical contact with the female student in that particular closed-door session. As Respondent himself acknowledged, such a report should have spurred him to immediate action, but it did not. Moreover, because Respondent took no action in response to L.S.’s prior report, there was no record that this was the second report to Respondent of Mr. Frazier’s improprieties. As with L.S.’s report, this second report was also received and ignored, instead of being documented, investigated, and addressed with Mr. Frazier. Lynn Aragon is a teacher employed by the District. She taught at MHS for over ten years, until the end of the 2012-2013 school year, and is currently on a medical leave of absence. During the time period relevant to this proceeding, she served as the representative for the teacher’s union at MHS, and because of that role, teachers at MHS often would come to her with concerns. Ms. Aragon testified that during the 2010-2011 school year, a number of teachers came to her to express concerns about Mr. Frazier having female students in his office behind closed doors, calling female students to his office in the middle of class, texting female students in class, and going around in the courtyard on a golf cart with female students hugging him. Ms. Aragon testified that she reported these concerns to then- principal Bob Gagnon, but not to Mr. Kane.9/ Mr. Gagnon acknowledged that while he was still the MHS principal, he became aware of an issue with students on golf carts, although he did not say that Ms. Aragon was the source of his awareness or that Mr. Frazier was the subject of the “issue,” or complaint. Mr. Gagnon testified that he went out and told all of the staff using golf carts--not just Mr. Frazier--to stop allowing students on their golf carts. Several witnesses spoke generally about the legitimate use of golf carts by liaisons to monitor the parking lot and courtyard, and to transport a student when necessary. Often students congregate in the courtyard for lunch breaks, and it was not unusual, at least before Mr. Gagnon’s directive, for a student to sit on a golf cart with a liaison. However, as Ms. Peebles credibly explained, the student-on-golf-cart issue was decidedly different where Mr. Frazier was concerned. Whereas other liaisons and administrators might have a couple of students on a golf cart to sit and talk or to drive them someplace, Ms. Peebles described what she saw on Mr. Frazier’s golf cart: “[T]he students hanging around on Mr. Frazier’s golf cart mostly tended to be female students . . . more female students than could fit on the seats. There would be so many stacked on there that you literally couldn’t drive the golf cart anyplace.” 2011-2012: Groping At A Bar; More Golf Cart Issues; Horseplay Ms. Peebles testified that the year after the cake incident, another incident involving alleged inappropriate physical contact by Mr. Frazier was reported to her by MHS female student, A.P. Ms. Peebles told Mr. Faller about the allegations. When Mr. Faller seemed not interested, she told him about the prior cake incident, and she also told him that she had reported the cake incident to Mr. Kane. Ms. Peebles’ testimony was credible. Mr. Faller did not testify. Ms. Peebles did not say that she reported the A.P. incident to Mr. Kane. Nonetheless, Respondent offered A.P.’s testimony, apparently in an attempt to undermine the credibility of Ms. Peebles’ overall testimony. Instead, just as was the case with D.K., A.P.’s testimony corroborated the material facts, as reported by Ms. Peebles to Mr. Faller, regarding another troubling incident with Mr. Frazier. As A.P. testified, she snuck into a bar using fake identification, when she was still underage. She had a few drinks and was tipsy. Mr. Frazier approached her and grabbed her in “too friendly” a hug, putting his arms around the lower region of her back, or further down. Mr. Frazier had “his hands down there;” he was groping her and hanging all over her. Respondent attempted to elicit testimony from A.P. that she never told Ms. Peebles about being groped in a bar by Mr. Frazier. Instead, A.P. testified that although she could not say with certainty that she went to Ms. Peebles about this incident, it would make sense that she would have gone to Ms. Peebles: “I could see myself going to her[.]” A.P.’s testimony varied in some of the details from Ms. Peebles’ description of what A.P. told her. Ms. Peebles testified that she does not recall the word A.P. used in lieu of “erection,” she understood A.P. to be saying that Mr. Frazier had an erection and was rubbing himself against her buttocks. A.P. testified that she did not tell Ms. Peebles that Mr. Frazier had an erection; Ms. Peebles agreed that that was not the word A.P. used. Ms. Peebles also recalled A.P. showing her inappropriate text messages from Mr. Frazier regarding A.P.’s private body parts that Mr. Frazier inappropriately groped at the bar; A.P. denied receiving text messages from Mr. Frazier. Their testimony was in sync regarding Mr. Frazier’s inappropriate groping of A.P., who, at the time, was a minor and a student at MHS. Several years after the fact, the testimony by Ms. Peebles and A.P. is considered substantially and materially consistent. The variances do not undermine Ms. Peebles’ credible testimony. Not only was Ms. Peebles’ testimony regarding the bar- groping incident and her reports to Mr. Faller credible, but it highlights the problem of serial undocumented “isolated incidents.” An incident is reported to one administrator who ignores the report and takes no action; then when the next “isolated incident” is reported, the administrator receives that report as if nothing has ever been brought to his attention before, and again, takes no action; then when the next “isolated incident” is reported to a different administrator, there is nothing documenting that similar incidents had ever occurred before. Despite this pattern, Mr. Kane and Mr. Faller were the two administrators in the room nodding their heads in agreement when Ms. Horne reported to Mr. Martin that the allegations in the Rinder list were old news that had been reported to and handled by administrators. Two of the incidents on the Rinder list were the cake incident and the bar encounter. If brushing the allegations under the rug can be called handling them, they were, indeed, handled. While Mr. Kane was interim principal in 2012, two separate matters regarding Mr. Frazier were reported to him. In February 2012, Ms. Horne from OPS called Mr. Kane to inform him of an anonymous complaint received by the superintendent’s office regarding female students riding with Mr. Frazier on his golf cart and that it “didn’t look right.” At the direction of Ms. Essig, who was Mr. Kane’s immediate supervisor, Ms. Horne relayed the complaint to Mr. Kane, and asked him to look into it and speak to Mr. Frazier about it. Ms. Horne did not hear back from Mr. Kane within a reasonable time, so she called him back. Mr. Kane told Ms. Horne that he issued a verbal directive to Mr. Frazier to be professional in his dealings with students at all times. As Mr. Kane described it, he told Mr. Frazier to stop riding around with girls on his golf cart because others might perceive it to be inappropriate. Mr. Kane did not document his verbal directive to Mr. Frazier. The only evidence that there was a verbal directive comes from the hard-to-decipher scribbled note Ms. Horne made of her phone call to Mr. Kane to find out if he had responded to her request that he look into the complaint. There was no credible evidence that Respondent looked into the 2012 complaint at all, in the sense of trying to find out whether Mr. Frazier had conducted himself, with females on his golf cart, in a way that “did not look right” (such as by allowing so many female students to pile onto the golf cart with him that he and the females necessarily would be sitting on top of each other, as Ms. Peebles described). Instead, Mr. Kane apparently did not ask Mr. Frazier what he was doing with girls on his golf cart. Mr. Kane explained that because the complaint lacked details (such as names, dates, times, locations, or what exactly did not look right), he could not ask Mr. Frazier about the details because Mr. Kane did not have them. That explanation is unreasonable; a reasonable interim principal performing the duty of looking into a complaint asks questions to find out details. An absence of documentation about prior golf cart issues with Mr. Frazier resulted in yet another “isolated incident.” The absence of documentation of Mr. Gagnon’s student- on-golf-cart issue that caused him to tell all staff operating golf carts to stop letting students on the golf carts meant that the 2012 complaint about Mr. Frazier on his golf cart with female students and that it did not look right was never investigated as insubordination, for not following Mr. Gagnon’s prior directive. Also while Mr. Kane was interim principal, Mr. Gulash reported to Mr. Kane that Mr. Frazier shoved a water bottle between D.K.’s legs at the softball field. Mr. Kane had no recollection of Mr. Gulash reporting this incident to him. Mr. Gulash acknowledged that he mentioned the incident to Mr. Kane while they were walking together into the cafeteria; that he described the incident to Mr. Frazier as “horseplay”; and that he did not make a big deal of it. Nonetheless, one would expect that a description of “horseplay” involving a male liaison/coach placing anything between the legs of a female student would not only get the interim principal’s attention but also trigger immediate action. D.K. corroborated the occurrence of bottle-between-the legs “horseplay” by Mr. Frazier. She testified that Mr. Frazier had shoved water bottles or Gatorade bottles between her legs on more than one occasion, both at the softball field and while D.K. was hanging out with Mr. Frazier on his golf cart. While there were discrepancies in the details offered by Mr. Gulash and D.K., once again, their testimony was in harmony with regard to the troubling aspect of the incident they described--that Mr. Frazier engaged in a form of “horseplay” with a minor female student that involved him putting a plastic bottle between the student’s legs. Respondent claimed that Mr. Gulash was biased and not credible for several different reasons; Mr. Gulash responded with explanations. On balance, the undersigned accepts Mr. Gulash’s testimony, notwithstanding the attacks on his credibility. But even if Mr. Gulash did not tell Mr. Kane about the bottle- between-the-legs incident, those incidents should have, and would have, come to light much sooner than they did if Mr. Kane had responded appropriately to the reports of Mr. Frazier’s improprieties when they were made to him. D.K.’s credible testimony that one of these bottle-between-the-legs incidents occurred when she was on a golf cart with Mr. Frazier underscores the significance of the patterned failure to document or act on reports of Mr. Frazier’s inappropriate conduct with female students on golf carts. Likewise, D.K.’s description of Mr. Frazier’s inappropriate physical contact during closed-door sessions in his office underscores the significance of the patterned failure to document or act on reports of Mr. Frazier’s inappropriate closed-door meetings with female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Matthew Kane. DONE AND ENTERED this 30th day of September, 2014, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2014.
The Issue The issue in this case is whether the Petitioner should be awarded additional points for the practical portion of the September 14, 1998, Barber Examination.
Findings Of Fact On September 14, 1998, Tana Shiver took the practical portion of the examination for licensure as a barber. A passing score for the practical portion of the examination is a 75. Ms. Shiver scored a 69. A passing score on the written portion of the examination is a 75. Ms. Shiver scored a 90. Essentially, the practical portion of the barber examination consists of a haircutting session. Approximately 10 candidates for licensure give haircuts under the observation of two examiners. The practical examination is scored on a scale of 100 points. Each grader completes a score sheet and the scores are averaged to provide a candidate’s final grade. Elements of the practical examination include haircut (45 points), technique (10 points), shampoo (10 points), sanitation (25 points), and chemical services (10 points). Ms. Shiver received the maximum number of points for technique, shampoo, and chemical services. Ms. Shiver received an average score of 15.50 points out of a possible total of 45 on the haircut. Ms. Shiver received a score of 23.50 points out of a possible total of 25 on sanitation. Ms. Shiver noted that there is substantial discrepancy between the examiners on numerous test items. There is no evidence that such scoring discrepancy is indicative of error by the examiners. Substantial scoring discrepancies can result from a "borderline" haircut. In this circumstance, individual opinions of examiners can differ as to the level of performance, which, though of marginal quality, is still acceptable. At the hearing, the examiners testified as to the training provided to examiners prior to testing sessions. With ten candidates simultaneously performing haircuts and only two examiners in the room, it is not possible for both examiners to see each candidate perform each procedure. Examiner no. 307 opined that if he did not observe a procedure being correctly performed, he assumed that it was not, and would award no credit. Examiner no. 209 testified that examiners are instructed to give candidates credit for items not observed even through they might have been performed incorrectly. Examiner no. 209’s testimony as to this issue is credited. Score sheet items B-1 through B-4 relate to the sanitation portion of the examination. Item B-1 states "[t]he candidate washed hands before beginning the haircut." Both examiners gave credit for this item. Item B-2 states "[t]he candidate used the proper linen setup for the haircut." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the candidate "did not open collar." At the hearing, Examiner no. 307 testified that he did not give Ms. Shiver credit on item B-2 because he did not see her open the model’s collar. According to the training provided to the examiners, Ms. Shiver should have received credit from both examiners on item B-2. Item B-3 states "[d]uring the haircut, the candidate replaced tools in the sanitizer after each use." Both examiners gave credit for this item. Item B-4 states "[t]he candidate properly stored clean and dirty linen during the haircut." Both examiners gave credit for this item. Score sheet items B-5 through B-7 relate to the technique portion of the exam. Item B-5 states "[t]he candidate held and used all tools in a safe manner during the haircut." Both examiners gave credit for this item. Item B-6 states "[t]he model’s skin was not cut or pinched by clippers or other tools during the haircut." Both examiners gave credit for this item. Item B-7 states "[t]he candidate used the freehand technique when doing the haircut." Both examiners gave credit for this item. Items B-8 through B-16 are related to the haircut portion of the examination. Item B-8 states "[t]op is even and without holes, gaps, or steps." Neither of the examiners gave credit for this item. Examiner no. 209 noted "holes" and Examiner 307 noted "not even." Item B-9 states "[t]op (horseshoe) blends with the sides and back." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the hair "did not blend." There is no evidence that either examiner erred in scoring this item. Item B-10 states "[f]ront outline is even." Neither of the examiners gave credit for this item. Examiner no. 209 noted "uneven" and Examiner 307 noted "not even." Item B-11 states "[h]aircut is proportional and sides are equal in length." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting that the hair was "not proportional (and) not equal." There is no evidence that either examiner erred in scoring this item. Item B-12 states "[s]ides and back are without holes, gaps, or steps." Neither one of the examiners gave credit for this item. Examiner no. 209 noted "holes" and Examiner 307 noted "steps." Item B-13 states "[s]ides blend with back." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "sides too long." There is no evidence that either examiner erred in scoring this item. Item B-14 states "[s]ideburns and outlines are even." Examiner no. 209 gave no credit for this item, noting "around R. ear." Examiner no. 307 gave credit for this item. There is no evidence that either examiner erred in scoring this item. Item B-15 states "[s]ideburns, outline and neckline are clean shaven." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "not cleanly shaven." There is no evidence that either examiner erred in scoring this item. Item B-16 states "[n]eckline is properly tapered." Examiner no. 209 gave credit for this item. Examiner no. 307 gave no credit for this item, noting "not tapered." There is no evidence that either examiner erred in scoring this item. At the hearing, Ms. Shiver offered the testimony of the man whose hair she cut during the practical portion of the examination, and whose hair she has cut for approximately three years. He testified that neither examiner spent much time looking at the haircut after it was completed, and that only Examiner no. 307 actually touched his hair during the review of Ms. Shiver’s performance. He also testified that that his sideburns were uneven but that he was satisfied with the haircut.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Barber's Board, enter a final order: Allowing Tana Shiver to retake the practical portion of the barber examination at no cost, and Allowing Tana Shiver's passing score on the written portion to remain valid without reexamination. DONE AND ENTERED this 29th day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of April, 1999. COPIES FURNISHED: Tana Shiver 2049 Old Gunn Highway Oddessa, Florida 33556 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Woodyard, General Counsel Department of Business and 1940 North Monroe Street Tallahassee, Florida 32399-1007 Barber's Board Department of Business and 1940 North Monroe Street Tallahassee, Florida 32399-1007 All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to issue the Final Order in this case.
The Issue The issue for consideration in this case is whether Petitioner should be given credit for all or any of her answers to the questions challenged from the November 20, 1996, Cosmetology Written Clinical Examination.
Findings Of Fact At all times pertinent to the issues herein, the Board of Cosmetology was the state agency responsible for the examination and licensing of cosmetologists and the regulation of the profession of cosmetology in this state. Petitioner is a graduate of cosmetology school who took the written clinical portion of the cosmetology licensing examination administered on November 20, 1996. By Examination Grade Report issued in December 1996, Ms. Lang was advised she had earned a score of 69 on the examination. Since the passing score for the cosmetology exam is 75, Petitioner failed the examination. Thereafter, Petitioner requested a formal hearing at which she contested the score that she received on questions 15, 20, 24, 28, 30, 34, 35, 39, 56, 66, 69, 71, 72, 91, and 95. Question 15 deals with the appropriate time for tweezing the eyebrows of a client who comes in for an arch and brow tint. Though the Petitioner answered with “B,” (after softener), the correct answer to this question is “A,” (after tinting). Authority for this answer is found on page 413 of Regents/Prentis Hall Textbook of Cosmetology, Third Edition. This authority indicates that tweezing takes place after application of softener in a regular eyebrow arch. The question in issue relates to tinting. Since the client may be allergic to tint, the operator should tint before tweezing and opening the pores thereby. The Petitioner’s authority treats arching (tweezing) and tinting separately. Respondent’s authority suggests arching a week before or a week after the tint. In any case, it is clear that the procedures should not be done at the same sitting. The question posed on the examination implies they are. Petitioner’s answer to the question asked, however, is contradictory to the premise that the tinting should be done before the arching, and, therefore, the correct answer is “A.” Question 20 relates to the use of a proper color to lighten natural blonde hair which has darkened over the years. The correct answer to this question is “B,” (at the end of the treatment). However, Petitioner’s answer was “D,” (immediately after applying color to the scalp area). The authority for the Board’s answer is found in Milady’s Van Dean Manual at procedures 6 through 8, found on page 198. However, a careful review of that authority reflects it to read: Process the tint according to the strand test results. Apply the tint mixture to the hair near the scalp, being careful to avoid contact with the scalp. Apply the tint to the hair ends. A reasonable interpretation of this listing could result in the conclusion being drawn that it is appropriate for color to be applied to ends immediately after it is applied “to the hair near the scalp.” Under the circumstances here, the Board’s authority can reasonably be interpreted to support the Petitioner’s answer. Question 24 seeks the proper volume of peroxide to be used in the color formula in the circumstances cited. The Board’s correct answer to this question is “A” (10), whereas Petitioner listed “B” (20). The Board cites as its authority for its position that portion of the Regents/Prentice Hall Textbook found at the bottom of page 278 which reads: If you are going from a lighter level to a darker one, use a reduced volume, such as 10. In this system, it is assumed that for every 10 volume of developer used, you achieve one level of lightening action. The color you select will determine the amount of deposit achieved and the color of that deposit. Here, the question deals with depositing color to hair to restore a darker shade. The Board’s expert, Ms. Nealy, indicates that 10 volume deposits color to hair. Anything more gives less color. Petitioner claims 20 volume, which is most commonly used unless there is a serious problem, lifts the hair and lasts longer. However, her citation of authority furnished subsequent to the hearing appears to relate to a product-specific situation. The entire citation is not included in the materials furnished, and it is impossible to effectively evaluate Petitioner’s thesis and authority. Based on the materials furnished, the Board’s answer is deemed correct. Question 28 asks for identification of the appropriate solution to be applied to the end of hair to achieve even color results. Petitioner indicated the answer as “C” (pre-softener), whereas the Department’s correct answer was “B” (penetrating conditioner). Both of the Board’s references refer to the use of a filler as appropriate. A filler is defined as a product used to deposit color on damaged or porous hair so that the overall color is even, which is what is desired here. A conditioner filler is used to recondition damaged hair before salon service and may be applied either in a separate procedure or immediately prior to color application. Petitioner also submitted authority for her answer. However, the authority to which she refers relates to the use of a pre-softener for gray hair which is not a part of the question posed in the examination. Further, pre-softeners deal with hair curl, not color, which is at issue here. Her answer is incorrect. Question 30 tests the examinee’s knowledge of the proper steps to match a client’s hair which had been lightened but has grown back darker. The Petitioner indicated that “B” (divide the hair into sections for control), is the appropriate answer. The Board indicates that “C” (equalize the porosity of the hair), is correct. In the Board’s expert’s opinion, dividing the hair, as suggested by Petitioner, deals more with cutting, rather than coloring. Coloring should be equal throughout the hair, not applied to divided segments. Board references are found in Milady’s Textbook at page 302, and in the Prentice Hall textbook at page 277. Whereas Respondent’s written authorities do not clearly support its position, Petitioner’s authority does so. At best, Respondent’s supporting evidence is inconclusive, and Petitioner appears to have satisfactorily supported her answer. In question 34, the Board seeks to test the examinee’s knowledge regarding the proper procedural steps to achieve natural color for a client whose hair has been previously bleached and toned. Whereas Petitioner indicated the first step is to (apply conditioner to porous ends), answer “A,” the Board’s correct answer is (perform a strand test), answer “C.” The use of a strand test first will permit the cosmetologist to determine how the client’s hair will react to certain products and should always be performed. Petitioner’s answer is incorrect. Question 35 relates to the same factual situation as posed in Question 34. Here, however, the Board wants to know what products are mixed to create a highlighting shampoo. The Board’s correct answer is “A” (aniline derivative tint, developer, and shampoo), whereas Petitioner chose as her answer “D” (water, developer, and shampoo). The Board’s two references, cited previously, support its answer defining a highlighting shampoo as a mixture of shampoo and hydrogen peroxide. Hydrogen peroxide is the same as a developer. Water provides no lift to the color, and Petitioner’s answer is, therefore, incorrect. Question 39 relates to the process for lightening a client’s gray and resistant virgin hair, and requires the examinee to select the proper pre-softener. Petitioner chose answer “C” (temporary rinse), whereas the Board’s correct answer is “A” (hydrogen peroxide). Gray hair is generally resistant to color. The Board’s references, cited previously, indicate that peroxide can lift the hair cuticle to make it more receptive to a tint. Petitioner provided no reference to dispute this, and her answer is incorrect. Question 56 seeks to determine the proper strength of a chemical product to use for a chemical blow-out on a client whose hair was tinted the week previously. Petitioner selected “C” (regular), whereas the Board’s correct answer is “B” (mild). According to Ms. Nealy, the Board’s expert, when treating African-American hair which has never had a chemical relaxer applied, even when using a mild tint, the operator should use a mild relaxer, rather than regular, to avoid damage to the hair. Petitioner chose regular because, according to the terms of the question, the client’s hair was in good condition. Had there been any reference to damage, she would have chosen mild. In her opinion, different product companies label the strength of their product differently. Hair which has been colored is not necessarily damaged by the coloring. However, since a chemical has been applied to the hair to color it, the operator must be careful in using additional chemicals and must use the least strength that will do the job without causing damage to the hair. For this reason, the Board’s answer is correct. Question 66 refers to a client with long, strong hair which, reportedly, has been resistant to prior efforts at applying a permanent, and asks how best to produce a lasting curl. Whereas the Board’s correct answer is “D” (shape the hair before the perm and process on medium rods), Petitioner selected “B” (process on medium rods and shape the hair after the perm). The Board’s expert contends that since the question does not reflect that the customer also sought styling, her hair should be shaped before the perm because after the perm has been applied, the hair will be curly and the operator may miscut it. Though not mentioned as a part of the question, Ms. Nealy noted that springy hair cut after a perm will, in 9 out of 10 cases, result in the cutting of more hair than is desired. Cutting after the perm is also recommended in Milady’s at page 200. Petitioner chose to shape the hair after the perm because, she contends, if it is shaped before the ends are straight, it will be hard to roll the hair. She refers as authority to the same section of the Milady’s text, though a later edition. Review of that provision reveals it to be identical to the provision in the earlier edition relied upon by the Board. Review also reveals that additional considerations, not mentioned in the examination question, qualify that section relied upon by Petitioner. Based upon the examination question as written, Petitioner’s answer is incorrect. Question 69 seeks to determine what actions might be taken to prevent hair breakage after the application of a chemical relaxer. Though Petitioner chose “C” (use a conditioning shampoo), the Board’s correct answer is “B” (perform a strand test). Ms. Nealy, the Board’s expert, indicates that whenever a chemical is to be applied to hair, the operator should do a strand test to see if the client is allergic to the chemical and if the hair will take it. Authority for that answer is found in the Prentice Hall Textbook at page 365. Petitioner offered no authority for her choice. It was incorrect. Question 71 seeks the proper temperature for drying hair saturated with an acid-based solution. The Petitioner answered “B” (cool), whereas the Board’s correct answer is “D” (warm). Neither a hot nor a cold dryer is appropriate. A hot dryer may burn the hair, but a cold dryer is less helpful than a cool one. Heat helps penetrate the solution, but a cool dryer will not support penetration. Petitioner chose her answer, cool, so that the acid- based solution would penetrate and relax the hair. Nonetheless, the authorities cited by both parties indicate that some heat is required. If external heat is used, it should be used at a warm setting. Petitioner’s answer, therefore, is incorrect. In question 72, the examination seeks information as to why some of the client’s hair remained curly after a relaxing treatment. The Board’s correct answer is “C” (subsections were too large), but Petitioner chose “B” (solution was too mild.) According to the Board’s expert, if an operator treats too large a section of hair at one time, the relaxer may not work sufficiently and may leave some curl in the hair. Petitioner’s answer, indicating that the solution was too mild, may achieve the desired result, but use of a stronger solution adds risks to the hair which need not be assumed if the size of the work section is reduced. Therefore, the Board’s answer is the better one. Question 91 calls for classification of terms. The Board’s correct answer is “A” (back combing), whereas Petitioner chose “D” (styling). The Board’s expert referred to styling as the final touch, and claims that back combing, a method of combing hair, includes such procedures as teasing, ratting, and French lacing. Authority for the Board’s position is found in Milady’s at page 143, and in the Prentice/Hall Textbook at page 198. Petitioner’s cited authority supports the Board’s position. Question 95 asks why a client’s hair does not hold curl. Petitioner claimed the answer is “B”, (too much elasticity), while the Board’s correct answer is “C”, (too much moisture). A thermal curl is a hot curl using a curling iron. Too much elasticity in the hair, as suggested by Petitioner, has little to do with why the curl won’t hold. Elasticity, as cited by Petitioner, is the ability of hair to return to normal after being stretched, and it has nothing to do with retaining too much curl. In a thermal curl, moisture is the controlling factor. Dry hair is necessary for a successful curl. For this reason, Petitioner’s answer is incorrect. All questions asked on the examination in issue are within the scope of the expected knowledge of a candidate for licensure as a cosmetologist. They are basic, entry-level questions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final order sustaining the grades given for all questions except numbers 20 and 30 on the December 1996 Cosmetology examination, and that she be given credit for questions numbers 20 and 30. DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 7th day of January, 1998. COPIES FURNISHED R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lydia S. Castle, Esquire Gulfcoast Legal Services 641 First Street South St. Petersburg, Florida 33701 Lynda L. Goodgame General counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker Executive Director Board of Cosmetology 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times material hereto, respondent, Gary E. Smith owned and operated a business known as Hair Replacement Systems, at 2546 North State Road 7, Hollywood, Florida. Such business is located on the premises of, and leases space from, New Breed Hairstyling, a business owned by Vincenzo Clemente, a licensed barber. Respondent is not a licensed barber. On August 28, 1990, Leonard Baldwin, an inspector employed by petitioner, inspected the premises of New Breed Hairstyling, and observed the respondent, with a client seated in a chair, cutting what appeared to be a client's hair. Upon Mr. Baldwin's request for respondent's license to practice barbering, respondent presented the license of one E.F. Smith, Jr., as his own. E.F. Smith, Jr., is a licensed barber in the State of Florida, and the father of respondent. At hearing, respondent offered proof, which is credited, that he was not cutting the natural hair of the client but, rather, a hairpiece. In this regard, the proof demonstrates that respondent's business consists of the sale and servicing of hairpieces. In the course of that business, respondent takes a plaster-of-Paris cast of a client's head from which the hairpieces are designed, and forwards the cast to a factory where the actual hairpiece is manufactured. Upon receipt of the hairpiece back from the factory, it is placed on the client's head, and respondent trims, cuts and styles it to blend with the client's natural hair. Here, rather than cutting natural hair when observed by Mr. Baldwin, respondent was cutting and styling a hairpiece. Respondent further testified at hearing that he never cuts or styles a client's natural hair, and has located his business within a licensed barber shop so those services can be performed by licensed people, if necessary. According to respondent, any contact that occurs with a client's natural hair while he is cutting or styling the hairpiece is purely unintentional, and that he does not cut or style a client's natural hair. While the proof in this case demonstrated that respondent was not cutting natural hair when observed by Mr. Baldwin, the respondent's testimony that he does not style the natural hair of his clients when fitting a hairpiece is inherently improbable. Certainly, if a client has existing hair which the hairpiece is designed to match, the cutting and styling of the hairpiece on the client's head, during a fitting, would necessarily, dependent on the circumstances, result in contact with, and arrangement of, the natural hair. Such finding does not, however, detract from the conclusion, heretofore reached, that on August 28, 1990, respondent was only observed cutting a hairpiece. As to the charge of presenting another's license as his own, respondent responds that such was done to avoid the possibility of charges being filed. In this regard, respondent is aware that some of petitioner's inspectors find his practice of questionable propriety, while he is of the opinion that his services do not constitute barbering.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds respondent guilty of having violated the provisions of Section 476.204(1)(d) and (f), Florida Statutes, and which imposes a civil penalty against him in the sum of five hundred dollars ($500.00). In all other respects, the charges against respondent should be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of July 1991. WILLIAM J. KENDRICK 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 30th day of July 1991. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2 & 3. Addressed in paragraph 2. Addressed in paragraphs 2-6. Rejected as not relevant and not supported by competent proof. Copies furnished: Laura P. Gaffney Senior Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Mr. Gary E. Smith c/o Hair Replacement Systems 2546 North State Road 7 Hollywood, Florida 33021 Myrtle Aase Executive Director Board of Barbers Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
