The Issue The issue in this case is whether Petitioner should have received a passing grade on the written part of her barber examination.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Nina D. Odom, was a candidate on the April 1997 barber examination. The test is administered by the Bureau of Testing, Department of Business and Professional Regulation (Bureau), while licensure is conferred by Respondent, Barbers' Board (Board). There are two parts to the barber examination, a written portion and a practical portion. On an examination taken more than one year earlier, Petitioner had received a passing grade on the practical part of the examination. For the April 1997 examination, Petitioner received a score of 72 on the written part of the examination. In order to pass that part, a minimum score of 75 is required. Contending that she "wasn't pleased with [her] results," Petitioner requested a formal hearing to challenge her grade. In her letter requesting a hearing, Petitioner contended that the Bureau advised that her "weak area" was "implements," but the questions she failed were not in that subject area. As clarified at hearing, she challenged questions 2, 58, and 63, all multiple choice questions, contending that she should have received credit for her answers. Also, she questioned whether she should be required to pay a $150.00 reexamination fee even if she had already passed the practical part of the examination. Finally, Petitioner complained that she was required to retake both parts of the examination even if she failed only one part. The letter prompted this proceeding. The written portion of the barber examination is not an open book examination. Prior to the examination, however, candidates are given a copy of a "Candidate Information Booklet" (Booklet), which identifies in general terms the contents of the test and the reference materials from which the questions will be drawn. The questions are multiple choice and the correct answers are always taken from one of the reference materials in the Booklet. Because the questions are confidential, and may be used on future examinations, the actual text of the challenged questions will not be repeated here. In this case, Petitioner has contended that she should have been given credit for her answers to questions 2, 58, and Prior to the hearing, the Bureau agreed that Petitioner should have been given credit for question 58. This results in Petitioner's grade being raised to slightly above 73, which is still short of a passing grade. Question 2 tests the candidate's knowledge of a procedure to be used on a client. Petitioner selected an incorrect answer but contended that it was based on information she received from her instructors in 1992 while attending the Hair Design School in Jacksonville, Florida. However, witness Stewart, who helped draft the test questions, established that the correct answer is drawn from a recognized textbook, and that the information Petitioner received during her schooling was in error. Question 63 tests the candidate's knowledge of another procedure which licensed hair stylists must perform. Again, Petitioner selected an incorrect answer. Witness Stewart established that the correct answer was drawn from a recognized textbook cited in the Candidate's Information Booklet, and that Petitioner's answer was incorrect. The Board has promulgated Chapter 61G3-16, Florida Administrative Code, which contains the requirements for examination for licensure, reexamination, and examination review. Rule 61G3-16.001(5), Florida Administrative Code, provides that "[t]here shall be two parts to the examination, a written portion and a practical portion." The evidence shows that Petitioner has successfully completed the practical part of the examination but has failed the written part on four consecutive occasions. Rule 61G3-16.002(1), Florida Administrative Code, provides that "[a]n applicant who fails the state examination for licensure in whole or in part shall be required to pay the reexamination fee as set forth in Rule 61G3-20.007." Therefore, under the terms of the rule, Petitioner is required to pay the reexamination fee of $150.00 even if she passes one part of the two-part examination. Rule 61G3-16.002(2), Florida Administrative Code, provides that "[a]n applicant shall be required to retake only the portion of the examination on which he or she failed to achieve a passing grade. However, an applicant must pass both portions of the examination within a one year period in order to qualify for licensure." Because Petitioner had not passed the practical part of the examination within one year of when she sat on the written part of the examination, she was properly required to retake both parts of the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Barbers' Board enter a Final Order denying Petitioner's request for a passing grade on the written portion of the April 1997 barber examination. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: Nina D. Odom 1230 East 7th Street, Apartment 9 Jacksonville, Florida 32206 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joe Baker, Executive Director Barbers' Board 1940 North Monroe Street Tallahassee, Florida 32399-0769 Lynda Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Joanne Fletcher answered the telephone the day Eddie Dingler called The Summit Men's Hair Barbershop (Summit I) asking for work. He said he was Roffler- and Sebring-trained and that he held barber's licenses both in Alabama and in Florida. Ms. Fletcher relayed this message to respondent Donald C. Allgood. At the time, Mr. Allgood was half-owner of The Summit IV, and respondent Don Pettis owned the other half. Mr. Allgood had no ownership interest in Summit I, which was licensed to Mr. Pettis. Petitioner's Exhibit No. 3. Mr. Allgood acted as a sort of manager at Summit I the two or three days of the week he spent there, even though he was technically an independent contractor, working on commissions. Respondents had worked with each other for some seven years. The parties stipulated that respondent Donald C. Allgood "is a barber having been issued license number BB 0021833" and that respondent Don Pettis "is a barber having been issued license number BB 0011546." One Monday morning Eddie Dingler appeared in person at Summit I and talked to respondent Allgood about employment. Mr. Allgood called respondent Pettis, then took Dingler to respondent Pettis's house, where Ron Pettis was also present. Dingler told this group that he was licensed both in Florida and in Alabama and that he was conversant with the Roffler and Sebring tonsorial techniques. He was specifically asked whether he had a Florida license, and he answered affirmatively. He was not asked to produce the license certificate itself or the wallet-sized card that licensed barbers are issued. Barbers are under no requirement to carry this card on their persons. Respondent Pettis asked respondent Allgood to observe Dingler cutting hair and to hire him if he cut hair satisfactorily. Dingler was engaged as a barber on a commission basis. He proved to be a highly competent hair stylist, and "excellent barber," from a technical standpoint. Posted in is station at Summit I was what appeared to be a valid Florida barber's license with Dingler's name and photograph: he was wearing eye, glasses and a yellow shirt. Aside from the respondents, five witnesses saw this barber's license, which was counterfeit. Petitioner's Exhibit No. 1. Respondent Pettis remembered noticing a number of plaques on the wall at Dingler's station in Summit I, including something that looked like Dingler's license. Mr. Allgood was unable to say that he had specifically seen Dingler's barber's license at any time before Dingler gathered up his things to leave after being discharged from employment. After Dingler had worked at Summit I for about three months respondent Allgood asked him if he would like to work Mondays (when Summit I was closed at Summit IV. Dingler was Interested and reported for work at Summit IV the following Monday. Michael NcNeill let him in the barbershop ,and noticed what appeared to be an official Florida barber's license among Dingler's effects. After Mr. McNeill had left the Summit IV premises, Dingler allegedly sexually assaulted a 17-year-old patron. When respondent Allgood learned of this, he told victim's father that he would fire Dingler and do what he could to see that Dingler's barber's license was revoked. Dingler was discharged the day after the alleged assault. In discussing the matter with a law enforcement officer, respondent Allgood suggested that the Department of Professional Regulation (DPR) be notified so that proceedings to revoke Dingler's barber's license could be instituted. On November 24, 1980, Mr. Allgood voluntarily presented himself for an interview by Charles Deckert, an investigator for DPR. He assumed Mr. Deckert was developing a case so that action against Dingler could be taken. He learned in the interview for the first time that Dingler had never been licensed in Florida as a barber or a registered barber's assistant, according to DPR's records. In preparing the foregoing findings of fact, petitioner's proposed findings of fact and memorandum of law and respondents' proposed order have been considered, and the proposed statement and findings of fact have been adopted in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner refrain from taking action against respondents on account of this technical violation. DONE AND ENTERED this 28th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 June, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Patricia Grinsted, Esquire Post Office Drawer 915 Shalimar, Florida 32579 Myrtle Aase Executive Director Barbars Board 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner applied for licensure by examination to practice cosmetology within Florida after having completed 600 hours of instruction in cosmetology. Petitioner took the examination in Winter Haven, Florida, on August 27, 1981. The examination consists of two parts, written and practical, each of which must be passed to obtain licensure. The passing grade on each portion of the examination is 75. Petitioner received a grade of 85 on the written and 73.5 on the practical examination. The practical examination of August 27, 1981, was graded by Virginia Stolz and Kathryn Clymer, both of whom are licensed cosmetologists who have been employed by the Department of Professional Regulation as examiners for cosmetology examinations during the past six years. The practical examination is an opportunity for examinees to demonstrate their competence by performing several cosmetology services within a given amount of time. The services performed, the given time for each service, and the number of points assigned each service are defined by Board rule and incorporated into the grading score sheet for the practical examination. During the hair shaping portion of the practical examination, the Petitioner informed an unidentified examiner of problems with her model's hair which included gaps in the hair from a recent tint and haircut. The Petitioner was informed by the unidentified examiner that she should skip over the gaps since they could not be shaped into the haircut and corrected. Notwithstanding this, two points were deducted frog Petitioner's score due to gaps in her model's hair. When deficiencies are reported, it is the normal procedure for an examiner to make notations in writing; however,. the examiner's notes pertaining to the examination of August 27, 1981 have been destroyed. If an examiner is informed of deficiencies in a model's hair prior to the start of the examination, points for the deficiency are not deducted when the problem is noted by the examiner. In Petitioner's case, however, the timer had already started before she was given the opportunity to point out the gap problem with the model's hair and no notes exist to confirm that the examiner did not deduct points for the preexisting problem. It is possible to lose time by reporting deficiencies because they are reported after the timer is started. The amount of time normally lost in such a situation is 2-3 minutes out of the 30 minutes allocated for hair shaping. Following the 30 minutes allocated for hair shaping, the Petitioner was to clean the station where she performed the haircut. The clean up time was in addition to the 30 minutes given for the shaping procedure and had no maximum time set for the procedure to be completed. When she finished the hair shaping procedure, the Petitioner waited for a broom and dust pan to clean her station. Since she was fartherest away from available cleaning materials, Petitioner was among the last examinees to get access to the cleaning tools. Due to her concern that points would be deducted if she stayed in the station area too long waiting for cleaning tools, Petitioner did not clean her station and instead went to the area where other examinees were sent. When the examiners realized that Petitioner had joined the other examinees and not cleaned her station, she was sent back to her station to sweep her model's hair. However, points were deducted from her test score for failing to clean her station despite no time limit being attached to the cleaning portion of the examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner be given a passing grade on the practical portion of the August 27, 1981 cosmetology examination based on deductions which were erroneously made on the hair shaping and station cleaning portion of her practical examination. DONE and ORDERED this 26th day of April, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of April, 1982. COPIES FURNISHED: George Waas, Esquire SLEPIN SLEPIN LAMBERT & WAAS 1114 East Park Avenue Tallahassee, Florida 32301 Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601 - The Capitol Tallahassee, Florida 32301 Myrtle Aase, Executive Director Florida Board of Cosmetology Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent was issued barber license number BB-0012083 on June 26, 1959, and has been continuously licensed as a barber since that time. No previous disciplinary action has been initiated or taken against Respondent's license. Barber shop license number BS-0008388 was issued to Respondent on October 10, 1984, but expired on October 1, 1986. A late renewal was issued for Respondent's barber shop license on February 1, 1988, and he currently has a valid barber shop license. Respondent does not dispute that he operated his barber shop at 1010 Grace Street, Tampa, Florida, between October 1, 1986 and February 1, 1988 while shop license BS-0008388 was expired. He was specifically observed by Petitioner's investigator to be operating said shop without a current valid license on January 23, 1988. It is the position of Respondent that he sent the renewal fee for his license, but it was either lost in the mail or incorrectly applied to someone else's license. However, no proof was offered by Respondent to support his claim. He testified that he sent his renewal fee by October, 1986, but the check stub he introduced shows a date of June 11, 1987. Additionally, he offered no explanation of the discrepancy in his testimony that he never received any notice to renew from Petitioner prior to October, 1986, and his contention that he mailed the renewal fee in a timely manner. Based upon a review of the evidence, including the witnesses' demeanor, it is found that Respondent failed to apply for renewal of his barber shop license and operated his barber shop without a current valid license from October, 1986 to February, 1988.
Recommendation Based upon the foregoing, it is recommended that Petitioner impose a $50.00 administrative fine against Respondent for operating a barber shop without a current valid license. DONE AND ENTERED this 7th day of July, 1988, in Tallahassee, Florida. DONALD D. CONN 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 7th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1795 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. COPIES FURNISHED: Ronald Jones, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Willie Mitchell, Jr. 1010 Grace Street Tampa, Florida 33607 Myrtle Aace, Executive Director Barbers Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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
