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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION vs CAMILO TORRES, 06-001043 (2006)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Mar. 23, 2006 Number: 06-001043 Latest Update: Jan. 03, 2007

The Issue Whether Respondent engaged in the practice of cosmetology or a specialty without an active license in violation of Section 477.0265, Florida Statutes (2005), and, if so, what penalty should be imposed.

Findings Of Fact Based on the evidence and the testimony of witness presented, and the record in this case, the following findings of fact are found: At all times material hereto, Respondent was regulated by the Department. Respondent's last know address and his address of record with the Department is 421 Champagne Lane, Brandon, Florida 33510. This is also the address written on the Election of Rights Form submitted to the Department in which Respondent requested a formal hearing. At all times material hereto, John Miranda was employed by the Department as an environmental health specialist, where he has been working for approximately nine (9) years. As an environmental health specialist, Mr. Miranda conducts inspections for the Board of Cosmetology. On December 14, 2005, Mr. Miranda conducted an inspection of the Eclips Barber Shop (Eclips) located at 1221 Kingsway Plaza, in Brandon, Florida. During the inspection, Mr. Miranda observed Respondent cutting hair. However, when asked to do so, Respondent did not produce either a barber license or cosmetology license. On December 14, 2005, Respondent was not licensed as either a barber or a cosmetologist. Respondent was eligible to take the cosmetology examination on September 10, 2004. As of December 20, 2005, Respondent had successfully completed all parts of the cosmetology licensing examination. Respondent was not licensed as a cosmetologist until more than three months after the December 14, 2005, inspection. Respondent was initially issued a cosmetology license, License No. CL 1183800, on or about March 31, 2006. That license is current and active, with an effective date of March 31, 2006, through October 31, 2007.

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 (1) finding that Respondent, Camilo Torres, engaged in the practice of cosmetology without a license, an act proscribed by Subsection 477.0265(1)(a), Florida Statutes (2005), and (2) imposing an administrative fine of $500 for that violation. DONE AND ENTERED this 5th day of September, 2006, 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 5th day of September, 2006. COPIES FURNISHED: Camilo Torres 421 Champagne Lane Brandon, Florida 33511 Lee C. Hawley Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32303 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (7) 120.569120.57455.227477.013477.0265477.028477.029
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PAMELA Y. DENNIS vs. BOARD OF COSMETOLOGY, 88-004552 (1988)
Division of Administrative Hearings, Florida Number: 88-004552 Latest Update: Sep. 20, 1989

Findings Of Fact This case arose upon notification to the Petitioner, Pamela Y. Dennis, that she had received a failing grade on the Cosmetology Instructors Examination. Specifically, she received 70 percent on the examination and needed a 75 to pass. She chose to contest this action by the agency in according her a failing score, by contesting her grade on questions 2, 5, 7, 12, 16 and 17 on the lecture portion of that examination. She ultimately requested and received a formal proceeding before this Hearing Officer. The Petitioner testified on her own behalf. In essence, the testimony consisted of her contention that as to the contested questions, some of the examiners gave her scores of "yes", meaning that she had answered correctly, while others gave her scores of "no" and others gave her partial credit. Her complaint is, in essence, that if one examiner gave her a "yes" result on a question, why was that grade not accepted in order to give her full credit for the question. She also complained that the comments the examiners gave, when they accorded a "no" score or a partial score for a particular question, are differing in nature and some examiners, as to the same question, made no comment at all. She contends that the examiners' scorings were inconsistent with each other on each of the questions at issue and that therefore, if any examiner gave her a "yes" answer, then she should have received full credit for the answer to that question. In fact, however, as established by Dr. Eunice Loewe, Ph.D., the examination developer, the Petitioner was accorded credit for all yes or "y" grades given her by the examiners on the questions at issue, as well as all "p", or partial credit, scores given her. She only received no credit at all on a given question if none of the examiners gave her a partial or a "yes" score on that question. In other words, the scoring was not done by grading according to what the majority of examiners gave her for a particular question. If that had been done, she would actually have lost points below that which she actually scored, according to Dr. Loewe, because by a "majority vote" method of scoring, a majority of examiners giving her a "no" grade on a given question, even when some examiners had graded her with a "yes", would prevent her from getting any credit at all for that question. That was not done in the grading, according to Dr. Loewe, rather, the Petitioner was accorded credit for all partial or "yes" answers. The examiners are currently teachers of the same subject matter. They are required to make comment on a candidate's response to a particular question or a portion of the examination when they give her a "partial" or a "no" grade on that question. It is not required that all comments be the same, because this is a demonstration type examination where the grading to a large extent must, by necessity, be somewhat subjective. Because this is a physical demonstration type of examination, the agency, in an attempt to be totally fair with candidates, required the examiners to make these comments if they were not going to give her a "yes" grade on a particular question or area of classroom presentation. In summary, Dr. Loewe established that the Petitioner was a "borderline candidate" who had close to a passing score and upon whose grading the examiners were split as to the questions involved. The point is that if the grades on the questions involved had been by a majority vote of the examiners with no credit being given at all for any question if the majority of examiners did not vote "yes", the Petitioner would have received a lower score. The fact that the examiners were split on these questions did not in itself penalize the Petitioner because she was given credit for partial or "yes" grades by the examiners. There was no showing that the individual examiner's grades of "no", "yes" or "p" (for partial) on any of the questions at issue were incorrect grades. In fact, a review of the score sheets of the various examiners, in evidence as Petitioner's Composite Exhibit 2, reveals that although some do not make comment on some questions, where others do make comment, and some comments are different, the majority of the examiners grading "no" or "partial" made similar comments about the same question. There was simply no showing by the Petitioner that the method of administration of this examination was unfair, nor that the content of the questions was unfair or biased. It was not demonstrated that the examiners had unfairly scored the lecture demonstration portion of the examination. Indeed, the Petitioner was a borderline candidate and came close to passing the examination. She had a complete lesson plan as required and presented a fairly thorough lecture. She did not follow the lesson plan closely enough, however, according to a number of the examiners. They indicated by their comments that she seemed to "jump around" and other comments indicated that she relied too heavily on her notes and seemed to read from notes to a great extent in making her lecture presentation. These example comments and others revealed by the testimony of record and the score sheet exhibits reveal that the examiners did indeed give careful consideration to her presentation and they have not been shown to have graded unfairly or in a biased manner.

Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the Respondent agency determining that the score accorded Pamela Y. Dennis on the Cosmetology Instructors examination was an accurate score and that her petition be dismissed. DONE and ENTERED this 20th day of September, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of September, 1989. COPIES FURNISHED: Pamela Y. Dennis, pro se 2221 Dumfries Circle Jacksonville, Florida 32216 H. Reynolds Sampson Deputy General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Myrtle Aase Executive Director Board of Cosmetology Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (1) 120.57
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