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 Whether disciplinary action should be taken against Respondents for alleged violations of Sections 455.277 and 477.028, Florida Statutes (1979).
Findings Of Fact Respondent Luella and Porter's School of Beauty currently holds License No. CT 0000056 and is located at 316 NE First Street, Pompano Beach, Florida. Respondent Luella A. Bailey is an owner of the Respondent beauty school and currently holds License No. IC 0031324 as a cosmetology instructor. In March of 1980 Respondent Bailey discussed a two week course of study in Esthetology given by the Respondent beauty school with Bonnie Cohen and her mother, Sharon Cohen. Bonnie Cohen and her mother were led to believe that the course, which involved the study of the face, the use of massage and water vapor and the use of various creams and oils would enable Bonnie Cohen to obtain a paid position in cosmetology salons performing facials. Respondent Bailey suggested at least two places where Bonnie Cohen might obtain employment as a person trained to perform facials: Christine Valmy Salon and Palm Aire Spa Salon. Respondent Bailey knew or should have known that in order to perform facials in a cosmetology salon an employee must be certified as a cosmetologist. Respondent Luella and Porter's School of Beauty has been in business for a long period of time and is recognized as a reputable school. Bonnie Cohen paid a fee of $500.00 and took the two week course given at Respondent school which began on March 18, 1980 and ended on March 28, 1980. She learned to massage areas of the face and neck, apply creams and chemicals used to clean and soften the skin, and learned how to apply treatments for various minor skin problems. Miss Cohen was awarded a certificate worded: "Esthetics - Scientific Facial Treatments and Skin Care Seminar. This certifies that Bonnie Cohen has parti- cipated in the Christine Valmy Seminar for Esthetics - Scientific Facial Treat- ments and Skin Care. Date, March, 1980." The certificate was signed "Christine Valmy by Luella Bailey." In October of 1980, Bonnie Cohen sought employment at two cosmetology salons, Christine Valmy Salon and Palm Aire Spa Salon, both of which were recommended to her by Respondent Luella Bailey. The owner of the Palm Aire Spa Salon discussed employment with Bonnie Cohen and would have employed her, but when Miss Cohen produced the herein described certificate instead of a cosmetology license the owner of the salon would not employ her to perform facials. A cosmetology license is required for employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that a final order be entered censuring Respondent Luella Bailey and imposing on her as a licensee an administrative fine not to exceed $1,000.00 In addition the Hearing Officer recommends that the license of Respondent Luella and Porter's School of Beauty be suspended for a period of six (6) months. DONE and ORDERED this 21st day of August, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1981. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Luella & Porter's School of Beauty 316 NE First Street Pompano Beach, Florida 33060 Ms. Luella A. Bailey 3200 NW 90th Avenue Coral Springs, Florida 33065 Nancy Kelley Wittenberg, Secretary Department. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF COSMETOLOGY DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY, Petitioner, CASE NO.: 81-1600 vs. LICENSE NOS. CT0000056 IC0031324 LUELLA & PORTER'S SCHOOL OF BEAUTY AND LUELLA A. BAILEY Respondents. /
The Issue Whether Florida Administrative Code Rules 64B8-50.003(2) and 64B8-56.002(2)(a) are invalid exercises of delegated legislative authority in violation of section 120.52(8), Florida Statutes (2014). Whether the following four statements are unadopted rules as defined by section 120.52(20): (i.) The Electrolysis Council is a de facto party to a petition for declaratory statement filed with the Board of Medicine concerning the practice of electrology and need not intervene in the proceeding before the Board when considering rules and statutes related to the practice of electrology; (ii.) The Electrolysis Council is a de facto party to a petition to adopt, amend, or repeal an agency rule filed with the Board of Medicine concerning the practice of electrology and need not intervene in the proceeding before the Board when the rules concern the practice of electrology; (iii.) No additional materials can be submitted to the Board of Medicine prior to the meeting of the full Board for consideration of a draft order on a petition for declaratory statement; and (iv.) The Board of Medicine will not consider any materials submitted for consideration within 48 hours of a full Board of Medicine meeting unless the Board Chair allows their distribution to the members.
Findings Of Fact SCMHR is an international non-profit organization with members that include persons licensed as electrologists in the State of Florida. There are currently 177 certified electrologists in the State of Florida who are also members of SCMHR. SCMHR supports all methods of hair removal and is dedicated to the research of new technology that will keep its members at the pinnacle of their profession, offering safe, effective hair removal to their clients. SCMHR advocates for its members. SCMHR also serves the public by providing information on the newest technology in hair removal. SCMHR offers the only national certification for electrologists to gauge and/or show their knowledge of electrology including the use of laser and light-based devices for hair removal and reduction. SCMHR offers four certifications to qualified practitioners. Pertinent to its Petition for electrologists licensed in Florida, there are two certifications: (1) the “Certified Clinical Electrologist” (“CCE”), for those electrologists using the needle modality in hair removal and reduction; and (2) the next certification, to which the CCE is a prerequisite, the “Certified Medical Electrologist” (“CME”), for those using laser and light-based devices for hair removal and reduction. SCMHR also offers two other certifications: “Certified Laser Hair Removal Professional” (“CLHRP”) and the “Certified Pulse Light Hair Removal Professional” (“CPLHRP”). Both of these certifications are designed for allied health practitioners; including physicians, nurses, electrologists and others authorized in the jurisdiction where they reside to practice either laser or light-based hair removal. These certifications are for practitioners who may not personally practice electrology using needle hair removal modalities or who may practice in jurisdictions where an electrology license is not required to use the lasers or light-based devices. An individual electrologist is not required to be a member of the Society in order to obtain certification or maintain certification. Membership in the Society is voluntary. As of December 4, 2014, there were 954 electrologists who hold certification through the Society but are not members of the Society. One hundred and forty-six of the Florida electrologists who are members of the Society hold CCE/CME certification. Members of the Society who are licensed in Florida who wish to use laser and light-based devices in their practices must comply with rule 64B8-56.002. As an organization that advocates for its members, the Society will from time to time seek guidance on the rules and regulations affecting the practice of electrology for its members. It will also seek to lobby on behalf of its members’ interests. Petitioner Walton is a Florida licensed chiropractic physician, a licensed practical nurse, a licensed massage therapist, and a licensed electrologist under the provisions of chapters 456, 460, 464, 478, and 480, Florida Statutes. Walton was issued License Number EO2363. She is a CME/CCE and holds a current certificate with the Society. She is also a member of the Society. As part of her electrology training, Walton asserts that she took the 30-hour course in laser and light-based hair removal set forth in rule 64B8-56.002(2)(a) and completed the course on or about October 25, 2011. She claims, however, to be uncertain as to whether she has to take the aforementioned 30-hour course again despite the fact that no one from the Council or the Board has ever told her, verbally or in writing, that she has to take the course again, nor has she attempted to ask anyone from the Council or the Board if she has to take the course again. Council staff routinely advises callers that the 30-hour course in laser and light-based hair removal only has to be taken once. As of the date of the hearing, Walton had neither performed permanent hair removal on any person with an epilator or laser, did not possess a hair reduction laser, nor did she have any electrology clients. She also did not have immediate plans to perform such services. Respondent is the Board of Medicine (“Board”). The Electrolysis Council (“Council”) is statutorily created by chapter 478 under the Board. Council members are appointed by the Board. On March 5, 2014, the Society filed a Petition for Declaratory Statement with the Board on behalf of its membership and pursuant to section 120.565. It was scheduled to be heard by the Board at their meeting scheduled for April 4, 2014. On March 6, 2014, the Society filed an Amended Petition for Declaratory Statement with the Board. At the Board’s meeting of April 4, 2014, the Board took up both the March 5, 2014, Petition for Declaratory Statement and the March 6, 2014, Amended Petition for Declaratory Statement. The Board determined that pursuant to its rule 64B8-50.003(2), the Petition for Declaratory Statement could not be heard at its meeting. Instead, the Board decided that pursuant to Board rule, the petition should have been first presented to the Council for its recommendation on the petition. Consequently, the Society withdrew its request. On April 29, 2014, the Society filed its Petition for Declaratory Statement with the Board along with a Petition for Variance or Waiver of rule 64B8-50.003(2) that were both copied to the Council. On June 6, 2014, at the Board meeting, the Board considered SCMHR’s Petition for Variance or Waiver and denied SCMHR’s request. At the same meeting, the Board then declined to hear the April 29, 2014, Petition for Declaratory Statement relying on its rule 64B8-50.003(2), and referred the Petition for Declaratory Statement to the Council for consideration and recommendations. The Council considered the April 29, 2014, Petition for Declaratory Statement at its meeting of July 7, 2014. Assistant Attorney General Marlene Stern (“Stern”), who appeared on behalf of the Council, attended the April 3-4, 2014; June 6, 2014; August 1, 2014; and October 10, 2014, meetings of the Board and the April 14, 2014, and July 7, 2014, meetings of the Council where the Petition for Declaratory Statement was either considered or discussed by the Board or Council. At the August 1, 2014, Board meeting, the Council’s attorney, Stern, at the direction of the Council provided the Council’s recommendation to the Board verbally in person. The Board ruled on the Society’s April 29, 2014, Petition for Declaratory Statement and directed Board counsel to draft a final order reflecting the Board’s decision, which was to be presented for approval at the Board’s October 2014 meeting. On August 4, 2014, SCMHR filed a request for it to be permitted to withdraw the request for declaratory statement, which Board staff failed in error to include in the original meeting materials for October 10, 2014. On September 24, 2014, SCMHR submitted via electronic correspondence additional materials for consideration by the Board at its October 10, 2014, meeting. The same day, Board staff placed the additional information SCMHR submitted into the addendum materials for consideration by the Board at their meeting of October 10, 2014. The materials included the transcript of the April 3, 2014, Rules and Legislative Committee discussion regarding electrolysis rules and the issue of certification by SCMHR. Crystal Sanford (“Sanford”), the Board’s Program Operations Administrator, who works in the Board’s office is responsible for preparing and coordinating the agenda materials. Sanford follows the time frame for website electronic agenda deadlines of seven days before the board meeting as set forth in section 120.525(2). If materials are received after the deadline, the protocol is to submit the request to the Board counsel for a recommendation and then to the Board Chair for a determination as to whether the materials should be placed on the agenda and disseminated to the Board members. On October 3, 2014, SCMHR submitted via electronic correspondence more materials for consideration by the Board consisting of a letter from an insurance carrier and a journal article on laser claims. On October 6, 2014, SCMHR sent the Board Staff office another request to withdraw the Petition for Declaratory Statement by electronic correspondence after being informed that the original request provided on August 4, 2014, was not included in the materials. For the October 10, 2014, Board meeting, on the recommendation of Board Counsel and the Chair’s decision, SCMHR’s materials submitted on October 3, 2014, were not disseminated to the members of the Board for consideration because the Board had already ruled on the Society’s Petition for Declaratory Statement on August 1, 2014, and the record was closed on that matter. The draft order was being presented to the Board for approval as previously instructed. At the October 10, 2014, Board meeting, the Board considered SCMHR’s request to withdraw the Petition for Declaratory Statement and denied the request. The Board also denied the request by SCMHR to table consideration of the draft order, and then approved the draft order on the Petition for Declaratory Statement. At or prior to the Board’s October 10, 2014, meeting, the Society did not submit either a written or an ore tenus motion seeking rehearing or reconsideration of the Board’s August 1, 2014, ruling on the Petition for Declaratory Statement. At the October 10, 2014, Board meeting, the Board also had a lengthy discussion about materials regarding PRN and certification being difficult to review and prepare because of last-minute submissions. The Board voted to preclude the submission of additional Board materials submitted within 48 hours prior to the Board meeting. However, if submissions come in within 48 hours, Sanford still checks with the Chair to determine whether to distribute the late-submitted materials. The Order on the Petition for Declaratory Statement was filed on October 20, 2014, and SCMHR took a timely appeal of that Order.
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.
Findings Of Fact Petitioner took the chiropractic examination given by Respondent on November 4-7, 1992. The examination consists of three parts; physical diagnosis, technique, and x-ray interpretation. The minimum passing grade on each part is 75. Petitioner received an 80 on x-ray interpretation and a 36.5 and 67.5, respectively, on the physical diagnosis and technique parts. Here, Petitioner challenges only his score of 67.5 received on the technique part of the examination. If Petitioner passes the technique portion of the examination, he will be required to pass only the physical diagnosis in order to complete the examination requirements for his license. The technique portion of the examination consists of five clinical cases and four follow-up questions on each case. The technique part of the examination is timed. Like all candidates, Petitioner was provided with a timer and informed that no more than 10 minutes was allowed for all five cases, including the 20 follow-up questions. Petitioner neither stated a need for additional time nor requested additional time to complete the technique portion of the examination. Petitioner has only one leg and would have been given additional time if requested. Petitioner's challenge to the technique part of the examination is limited to clinical Case 1. No challenge is made to the follow up questions to Case 1. Case 1 required Petitioner to set up an appropriate technique for a patient who was eight months into pregnancy. The patient had a left anterior superior ilium. The condition of anterior superior ilium is more often associated with trauma to the buttocks or a fall on one's hip than with pregnancy. Pregnancy causes the joints to move easily and requires special consideration when performing adjustments. Special consideration includes different set-up, contact, and line of drive. Petitioner's first form of adjustment for Case 1 was his own adaptation for the facts presented. Petitioner changed the contact points and line of drive from that reasonably considered appropriate under the circumstances. Once the contact points were improperly changed, the line of drive was incorrect.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's request for credit on Case 1 and a passing grade on the technique portion of the chiropractic examination given November 4-7, 1992. DONE and ENTERED this 18th day of August 1993, in Tallahassee, Florida. DANIEL MANRY 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 18th day of August, 1993 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0699 Petitioner's Proposed Findings of Fact Petitioner submitted no proposed findings Respondent's Proposed Findings of Fact 1.-8. Accepted in substance COPIES FURNISHED: Robert J. Dixon 8300 U.S. #1 North Micco, FL 32976 Vytas J. Urba, Esquire Dept. of Business and Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack Mcray Acting General Counsel Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
