The Issue Whether the Respondent committed the offenses set forth in the administrative complaint file din this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Jean Mene, was not a licensed barber in the State of Florida nor was the barbershop which he owned and operated licensed. On or around November 18, 1989, Respondent was observed in the practice of barbering. At that time, he admitted that he did not hold a valid license to barber and that the barbershop in which he worked was not validly licensed. An application for licensure was offered to him by an inspector for Petitioner, but Respondent refused the offer. An employee in Respondent's shop, who was engaged in barbering, also did not have a license to barber. Over the ensuing eight months, Respondent continued his unlicensed practice, operated his unlicensed shop and employed an unlicensed practitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing on Respondent an administrative fine of $1,500. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of July 1989. JANE C. HAYMAN 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 27th day of July, 1989. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Jean D. Mene 223 Northeast 82 Street Miami, Florida 33138 Myrtle Aase, Executive Director Barbers' Board Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 =================================================================
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This case involves an appeal by petitioner, Marline Lewis, challenging the score she received on the September 1993 barber licensure examination. The examination is administered by the Department of Business and Professional Regulation on behalf of respondent, the Barbers' Board (Board). According to the examination grade report issued on September 29, 1993, petitioner received a grade of 69 on the practical portion of the examination. The Board requires a grade of at least 74.5 in order to be licensed. The barber examination consists of two parts: written and practical. The practical portion of the examination is in issue here and has five categories: haircut, permanent wave, shampoo, sanitation and technique. As clarified at hearing, petitioner contends that the examiners who assessed her performance did not assign a proper score on the haircut category, and that one examiner improperly gave her no credit on one item of the sanitation category. She also contends that there were conversations between two examiners during the examination that disrupted her concentration, and that other individuals entered the examination room and momentarily congregated around her work area. Petitioner took the practical portion of the examination on the afternoon of September 20, 1993, at Lively Vocational/Technical Center in Tallahassee, Florida. The examination room contained four work areas, one in each corner of the room, with each area having four work stations consisting of a mirror, chair, cabinet, counter and sink. Each candidate was assigned to one of the work stations. When petitioner took the examination, there were fourteen candidates, including herself. Each candidate was required to be accompanied by a model on whom the procedures could be performed. Petitioner brought her husband as a model. Four examiners were assigned the task of grading the fourteen candidates. The room was divided in half for testing purposes, and two examiners graded seven candidates at two work areas while the other two examiners graded the remaining seven candidates. Each set of examiners circulated around their assigned work areas so that they could observe and monitor the skills of the candidates. Thus, it was not possible for an examiner to observe a candidate for every moment during the entire examination. In petitioner's case, her examiners were Roland Bordelon and Jeri Scott, two licensed barber stylists with nine and eleven years experience, respectively, in grading the examination. According to examiner Scott, she always gave the benefit of the doubt to the candidate. On the other hand, examiner Bordelon said he tended to grade more rigidly. Before the examination, all examiners were given standardization training, which was designed to insure that the examiners graded in a "standardized" or consistent fashion. This training included the grading of live models during a simulated or mock examination. In addition, they reviewed a grader's manual which provided criteria and instructions on how to grade the examination. The examiners were told to grade independently of one another, and they were not to confer on the grades to be given a candidate. After the grading was completed, the two grades were compiled, and an overall grade was given the candidate. The haircut category contains nine separate items to be rated by the examiner. A maximum of forty-five points can be attained in this category. The sanitation category contains ten items with a maximum of twenty-five points. The examiner was required to give a "yes" or "no" score on each category, with a "yes" meaning full credit and a "no" meaning zero credit. This rating was then recorded contemporaneously on a scoring sheet. In the event a "no" score was given, the examiner was required to fill in a comments section on the scoring sheet which identified the basis for the negative rating. Finally, if one examiner gave a "yes" and the other a "no," the candidate received one-half credit on the item. In the haircut portion of the test, examiner Bordelon gave a "no" on items B-8, B-9, B-10, B-12, and B-14 while examiner Scott gave a "no" on items B-11, B-12, and B-15. In all other respects, the two were consistent in their grading. Their combined scores resulted in petitioner receiving a total grade of 24 out of 45 points. Petitioner contends that she successfully completed a taper haircut on her model and did not deserve to receive a "no" on so many items. She also questions the consistency of the examiners' grading. The more credible and persuasive evidence, however, is that the items were graded in a fair manner and that a number of deficiencies were noted in her performance. They included sides not proportional, holes in the sides and back, side burns not shaven, holes in the top, blending problems, and uneven outlines. Although the two examiners disagreed on several items, such inconsistencies were not shown to be unreasonable or illogical. Moreover, the scores are averaged to adjust for any potential bias by the examiners. In other words, the averaging process reduces the subjectivity of the examiner's scoring and takes into account the fact that one examiner may grade too leniently or too severe. Therefore, the grade given in the haircut category should not be changed. In the sanitation category of the examination, petitioner contests the "no" grade she received from examiner Bordelon on item B-1. That item requires a candidate to wash her hands before beginning the haircut. Examiner Scott stated that she did not see petitioner wash her hands, but since she did not observe petitioner every moment before the haircut began, she gave her the benefit of the doubt. Examiner Bordelon stated he did not observe petitioner wash her hands and thus gave her a "no." Since petitioner stated that she washed her hands prior to the beginning of the haircut, and examiner Bordelon did not testify that he had petitioner in his eyesight for every moment prior to the time she began cutting hair, it is found that petitioner should be given a "yes" rating on item B-1 and an additional two points. After adjusting her score, her total score is 71, or still less than the required 74.5. Besides her own testimony, petitioner presented the testimony of her former instructor, Terry Collier, who is a licensed barber stylist. Collier suggested that the examiners did not have sufficient experience and training in cutting the hair of African-Americans. From this premise, he drew the conclusion that the examiners likewise were insufficiently trained to judge the merits of a haircut given to a black model. The evidence shows, however, that during the past decade both examiners have graded numerous candidates who used black models. This is confirmed by the fact that approximately one-half of all test candidates and models are black. In addition, both examiners operate barbershops serving African-American clients. Finally, both Collier and the Board's witnesses agreed that subjective judgment calls must be made by the examiners while grading a candidate. Therefore, petitioner's contention regarding the qualifications of the examiners is deemed to be without merit. Finally, petitioner claims she was distracted by conversations between the two examiners during the examination. Both examiners denied discussing the merits of the candidate's skills, but admitted they made have engaged in "small talk" at various times, particularly during the permanent wave part of the examination, a category not in issue here. Also, petitioner stated that four or five unidentified persons came into the examination room during the examination and stood behind her for a few moments. This was confirmed by her husband. Even if these events occurred, however, all candidates would have been subjected to the same testing conditions and thus no candidate would have received an unfair advantage during the examination process. Moreoever, petitioner concedes that during the examination she never complained that she was being distracted. Therefore, petitioner is not entitled to relief on this ground.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Barbers' Board enter a final order changing petitioner's grade on the September 1993 barber stylist examination from 69 to 71. DONE AND ENTERED this 22nd day of June, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6792 Petitioner: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Rejected as being unnecessary. 4. Partially accepted in finding of fact 7. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 1. Partially accepted in findings of fact 1 and 7. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 4. 12-13. Partially accepted in finding of fact 7. 14-16. Partially accepted in finding of fact 6. 17-24. Partially accepted in finding of fact 7. 25-26. Partially accepted in finding of fact 5. 27-29. Partially accepted in finding of fact 10. 30-31. Partially accepted in finding of fact 7. 32. Rejected as being unnecessary. 33. Partially accepted in finding of fact 7. 34. Partially accepted in finding of fact 9. Respondent: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Partially accepted in finding of fact 2. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 1. 6. Partially accepted in finding of fact 2. 7. Partially accepted in finding of fact 7. 8. Partially accepted in finding of fact 2. 9. Partially accepted in finding of fact 3. 10. Partially accepted in finding of fact 4. 11. Rejected as being unnecessary. 12. Partially accepted in finding of fact 6. 13-15. Partially accepted in finding of fact 7. 16. Partially accepted in finding of fact 9. 17. Partially accepted in finding of fact 7. 18-22. Partially accepted in finding of fact 10. 23-24. Rejected as being unnecessary. 25-26. Partially accepted in finding of fact 9. 27. Partially accepted in finding of fact 5. 28. Partially accepted in finding of fact 9. 29. Rejected as being unnecessary. 30. Partially accepted in finding of fact 4. 31. Partially accepted in finding of fact 8. NOTE: Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Suzanne Lee, Executive Director Barbers' Board 1940 North Monroe Street Tallahassee, FL 32399-0769 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Leatrice E. Williams, Esquire 604 Hogan Street Jacksonville, Florida 32202 W. Frederick Whitson, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether the Barbers' Board should discipline the Respondent (a licensed barber and barbershop) for permitting a person in his employ to practice barbering without a license in violation of Sections 476.204(1)(a) and (h) and 476.194(1)(c), Florida Statutes (1987).
Findings Of Fact Respondent, Bruce Heineman, holds a valid Florida barber license, license number BB-0018489 which was originally issued on May 8, 1968, and has been continuously licensed as a barber since that time. No record of prior disciplinary action appears in Respondent's file. Respondent, Bruce Heineman operates a barbershop under the business name of "Cuttin Corners," located at 3107 South Orlando Drive, #7B, Sanford, Florida 32771. Said barbershop operates under a current valid barbershop license which was originally issued to Respondent on September 9, 1986. Sara Kemmeck, an inspector with the Department, testified that she personally observed an employee of Respondent, Tina Prescott, giving a customer a haircut on August 31, 1988, at his barbership. Upon demand, the employee was unable to produce a valid barbers license. The unrebutted evidence demonstrated that Tina Prescott was engaged in the practice of barbering without a valid license for a minimum of two weeks, while an employee of Respondent. Tina Prescott was issued a cosmetology license on November 7, 1988, license number CL-0174999, which permits her to practice barbering in a licensed barbershop.
The Issue The issues for determination are whether Respondent violated Section 476.194(1)(c), Florida Statutes (1995), 1/ by hiring an unlicensed person to practice barbering and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to barbers. Petitioner is also responsible for regulating the practice of barbering on behalf of the state. Respondent is licensed as a barber. Respondent holds license number BS 0008619. On or before October 15, 1994, Respondent hired Mr. Eric A. McClenton to practice barbering in Respondent's barber shop. Mr. McClenton is not licensed as a barber. 2/ Respondent hired Mr. McClenton to perform barbering services as an independent contractor. Mr. McClenton paid Respondent $75 monthly for the use of one of the barber chairs in Respondent's shop and paid for his own equipment and supplies. Mr. McClenton performed barbering services within the meaning of Section 476.034(2). Mr. McClenton cut hair for approximately four months. He cut approximately 100 heads of hair for a fee of $6 or $7 a head. Respondent knew or should have known that Mr. McClenton was not licensed as a barber. Respondent allowed Mr. McClenton to cut hair before seeing Mr. McClenton's license. When Respondent hired Mr. McClenton, Respondent asked to see Mr. McClenton's license. Mr. McClenton verbally represented that he was licensed but used various excuses over time to delay or avoid showing his license to Respondent. Mr. McClenton never displayed a license by the chair he operated in Respondent's shop. Petitioner issued separate citations to Respondent and Mr. McClenton. Petitioner issued a citation to Respondent imposing a fine of $250. Respondent did not pay the fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 476.194(1)(c) and imposing an administrative fine of $250. RECOMMENDED this 14th day of August, 1996, 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 14th day of August, 1996.
The Issue Whether Respondent, Francisco Portes, violated Subsections 476.194(1)(a), 476.194(1)(e)1., and 476.194(1)(e)2., Florida Statutes (2003), and, if so, what disciplinary action should be imposed.
Findings Of Fact At all times material hereto, Respondent was unlicensed as a barber by the Department's Barbers' Board of the State of Florida. At all times material hereto, the name of the business located at 1447 North Pine Hills Road, Orlando, Florida (North Pine Hills address), was "Still Keeping It Real." That business was not licensed by Florida Barbers' Board.1/ The Department, though its employees, conducted a compliance sweep, and/or inspection, of the facility named "Still Keeping It Real" on February 7, 2004, after Petitioner received information that there was a "possible unlicensed barber shop or cosmetology salon" operating at that location. David Hogan, a regional program administrator with the Department, and two of the Department's employees participated in the compliance sweep and inspection. Mr. Hogan has been employed with the Department for approximately ten years, during which he has attended numerous training sessions provided by the Department. At all times material hereto, Mr. Hogan was certified as an investigator by the Council on Licensure Enforcement and Regulation by Eastern Kentucky University. On February 7, 2004, Mr. Hogan and the two inspectors initially conducted surveillance of the establishment located at the North Pine Hills address from a parking lot across the street from the establishment. There was a sign on the front of the building that said "Michael J's Still Keeping It Real" or "Michael J's Keeping It Real." During the 15 to 20 minutes that Mr. Hogan and the inspectors observed the establishment, there were a number of cars parked in the establishment's parking lot and a number of people were observed coming and going from the establishment. Based on the foregoing observations, Mr. Hogan and the inspectors believed that they had sufficient cause to enter the building. Once inside the establishment, Mr. Hogan conducted an inspection of the premises of "Still Keeping It Real." During the inspection, Mr. Hogan observed approximately four to six work stations, all of which had barbering and/or cosmetology implements set up at them. In a separate room at the establishment, there were also two more cosmetology stations. Mr. Hogan conducted an inspection of each of the work stations at the establishment. Although there were individuals at some of the work stations performing various barbering services on customers in the chairs in the work stations, no barber or cosmetology licenses were posted in any of the work stations. Upon request, with one exception, the individuals working at the various work stations would not produce identification. Moreover, none of the individuals working in the work stations produced either a cosmetologist license or barber license issued by the Department. Within five to ten minutes of Mr. Hogan's entering the establishment, all but one of the individuals working there and their customers left the premises. The only remaining individual working in the establishment completed the haircut he was giving his customer. After the haircut was completed, the customer paid the person who cut his hair and then left the establishment. As of February 7, 2004, the date of the inspection, Respondent had owned and operated the business establishment at the North Pine Hills address for approximately three months. The name of the business establishment located at the North Pine Hills address, immediately prior to Respondent's becoming the owner and operator of the business, was "Michael J's Keeping It Real." However, when Respondent took over the business, he named it "Still Keeping It Real." During the February 7, 2004, inspection, Respondent gave Mr. Hogan one of Respondent's business cards. Imprinted on the business card was the name of the business establishment, "Still Keeping It Real"; the address of the business, "1447 N. Pine Hills Road, Orlando, Florida"; and Respondent's name, "Frank Portes." The word "barber" was imprinted on the business card immediately below Respondent's name. Respondent testified that he performed services at "Still Keeping It Real" and that he did not have a barber's license at the time of the inspection. Although not licensed as a barber, Respondent mistakenly believed that because he had completed cosmetology school and registered for the cosmetology examination, he could work under the supervision of someone with a license. Respondent testified that he was working under the supervision of Michael J., the previous owner of the establishment, who, at the time of the inspection, still worked at the establishment. However, at the time of the inspection, Michael J. was not on the premises of the establishment. Furthermore, no evidence was presented at this proceeding to establish that Michael J. was licensed as either a barber or cosmetologist by the Department. Under limited circumstances, individuals who have graduated from cosmetology school may cut hair and perform other services included within the statutory definition of cosmetology prior to obtaining their cosmetology license, if they are supervised by a licensed cosmetologist. See §§ 477.013(4) and 477.019(4), Fla. Stat. (2003). However, graduates of cosmetology schools who have failed the cosmetology examination twice may not practice under the supervision provision in Subsection 477.019(4), Florida Statutes (2003). Respondent graduated from cosmetology school about two and a half years ago. After completing cosmetology school, Respondent took the cosmetology licensure examination twice, but failed to pass the examination. Because he was unsuccessful in passing the examination, Respondent planned to go back to cosmetology school for 200 more hours and then re-take the cosmetology licensure examination. A person who is licensed as a cosmetologist or properly working under the supervision of a licensed cosmetologist, may cut hair and perform other services included within the definition of both "barbering" and "cosmetology." (See Subsections 476.034(2) and 477.013(4), Florida Statutes (2003), which reflect that the definition of "cosmetology" encompasses many of the services also included in the definition of "barbering.") Respondent was ineligible to provide barbering services under either of the qualifying circumstances described in paragraph 18. First, based on Respondent's testimony, he was not licensed as either a barber or a cosmetologist. Second, despite Respondent's mistaken belief to the contrary, even if it is assumed that Michael J. was licensed and present on the premises at the time of the inspection, Respondent was ineligible to perform services under the supervision of a licensed person pursuant to Subsection 477.019(4), Florida Statutes (2003), because he had failed the licensure examination twice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Business and Professional Regulation, enter a final order (1) finding that Respondent, Francisco Portes, engaged in acts proscribed by Subsections 476.194(1)(a), 476.194(1)(e)1., and 476.194(1)(e)2., Florida Statutes (2003); and (2) imposing an administrative fine of $500 for each violation for a total of $1,500. DONE AND ENTERED this 18th day of July, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 18th day of July, 2005.
Findings Of Fact Albert Ackerstein is a currently licensed barber holding license number BB 0009065, and was so licensed at all times relevant to this proceeding. Albert's Barber Shop is a currently licensed barber shop holding license number BS 0001976, and was so licensed at all times relevant. Mario Burchianti was hired by Albert Ackerstein as a barber in 1977 when he held a current valid barber license and continued to work as a barber in Albert's Barber Shop until November, 1980, when he was dismissed for not having a current valid barber license. Mario Burchianti's barber license expired in 1978 due to his failure to renew. In order to obtain a new barber's license, he took the barber exam in September, 1980 and passed said barber exam in December, 1980. A license check performed by the Department of Professional Regulation in July, 1980 revealed one violation: Mr. Burchianti was unlicensed. A follow up license check performed by the Department in September, 1980, revealed the same violation. Mr. Ackerstein, who was unaware of the violation, became aware of the problem through the Department in October or November, 1980 and thereupon dismissed Mr. Burchianti. Petitioner's follow up investigation conducted in August, 1981 revealed no violation of any kind.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order fining each Respondent one hundred dollars. DONE and ENTERED this 28th day of April, 1982 at Tallahassee, Florida. R. T. CARPENTER, 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 28th day of April, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Adam Kurlander, Esquire Zedeck and Kurlander Post Office Box 600429 North Miami Beach, Florida 33162 Samuel R. Shorstein Secretary Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Myrtle Aase Executive Director Board of Barbers Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Felix Robaina is a "prevailing small business party", as provided in section 57.111 F.S.. On March 12, 1987, the Barber's Board filed its Final Order approving and adopting the Hearing Officer's Recommended Order that Felix Robaina be found not guilty of the violations alleged and dismissing the Administrative Complaint. An application for award of attorney's fees and costs was timely filed with the Division of Administrative Hearings on March 25, 1987. The parties have stipulated that the time spent by Mr. Robaina's attorney, Isidro Garcia, 19.25 hours, and hourly rate claimed, $100.00, are reasonable. Costs were expended in the amount of $67.35, reflecting the cost of a copy of the transcript and expenses of mailing.
The Issue Whether or not Respondent practiced barbering without a current active license in violation of Sections 476.204(1)(a) and (h), Florida Statutes.
Findings Of Fact Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of barbering pursuant to Section 20.30, Florida Statutes and Chapter 476, Florida Statutes. Ricardo Blanco, Respondent herein, during times material hereto, was not licensed to practice barbering in Florida. On September 30, 1988, Steve Yovine, an inspector employed by Petitioner, Board of Barbers, made a routine inspection of Vic's Barber Shop located at 9010 Hickory Circle in Tampa, Florida. At that time, Respondent was practicing barbering and had been so doing since approximately September 29, 1988. 1/ Since Inspector Yovine's inspection of Vic's Barber Shop on September 30, 1988, Respondent has not practiced barbering without a license.
Recommendation Based on the foregoing findings of fact and conclusions - of law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $100 which shall be payable within 30 days of entry of the Final Order entered herein. 2/ DONE AND ENTERED this 8th day of July, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989.
The Issue The issue is whether Respondent properly determined that Petitioner did not pass the February 2003 Restricted Barber Practical Examination.
Findings Of Fact On or about February 17, 2003, Petitioner completed the Restricted Barber Practical Examination. He received a score of 69 on the examination. A total score of 75 was required to pass the examination. A maximum of 45 points was available on the haircut portion of the test. Petitioner received 28.5 points for that portion. Two examiners, who are licensed barbers, observed Petitioner performing the haircut on a live model. They are not supposed to begin grading and evaluating the haircut until it is complete. Therefore, it was not necessary for the graders to watch every move that Petitioner made during the haircut in order to properly assess his performance. Petitioner specifically challenged the following test sections related to the haircut: (a) the top is even and without holes, C-1; (b) the haircut is proportional, C-4; (c) the sides and back are without holes or steps, C-5; (d) the sideburns are equal in length, C-7; (e) the outlines are even, C-8; and (f) the neckline is properly tapered, C-11. Regarding section C-1, Examiner 106 found that the top of Petitioner's haircut was uneven. Examiner 501 did not find fault with the top of the haircut. As to section C-4, Examiner 106 found that the haircut was proportional. Examiner 501 determined that the haircut was not proportional because the sides were unequal; the left side was shorter than the right side. Examiner 106 did not give Petitioner full credit for C- 5 because the examiner saw holes/steps in the back and the right side of the haircut. Examiner 501 did not observe these problems and give Petitioner full credit for C-5. Examiner 106 did not give Petitioner credit for C-7 because the sideburns were unequal in length, i.e. the right sideburn was shorter than the left sideburn. Examiner 501 did not observe a problem with the sideburns. As to C-8, Examiner 106 determined that the outlines of the haircut were uneven on the left and right sides. Examiner 501 found that the outlines of the haircut were even. Regarding C-11, Examiner 106 found that the neckline was properly tapered. Examiner 501 determined that the neckline was improperly tapered, i.e. uneven. Both examiners have served in that capacity for several years. They have attended annual training sessions in order to review the exam criteria and to facilitate the standardization of the testing process. They are well qualified to act as examiners. The examiners evaluated Petitioner's performance independently. They marked their grade sheets according to what they actually observed about the completed haircut. The scores of the two graders were averaged together to produce a final score. The greater weight of the evidence indicates that the examiners accurately recorded their individual observations regarding Petitioner's performance on the haircut. If one of the examiners did not observe a particular part of the haircut, Petitioner was given credit for that section. The examiners do not have to reach the same conclusion about each section of the test in order for the test results to be valid and reliable. Petitioner did not offer any persuasive evidence to dispute the manner or method by which Respondent accrues and calculates examination points. Petitioner would have failed the test based on either grader's independent scores. Therefore, Petitioner would not have passed the examination even if Respondent had not used one of the grade sheets in calculating Petitioner's final score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order confirming Petitioner's examination score and dismissing his challenge. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2004. COPIES FURNISHED: James F. Smith, III 5603 Silverdale Avenue Jacksonville, Florida 32209 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Gus Ashoo, Bureau Chief Bureau of Education and Testing Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0791 Julie Malone, Executive Director Board of Barber Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
