93-006792 Marline Lewis vs. Barber`s Board Status: Closed Recommended Order on Wednesday, June 22, 1994.

Summary: Grading on barbers examination not shown to be illogical or unreasonable. Distractions during examination affected all candidates, not just petitioner

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLINE LEWIS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6792

)

THE BARBERS' BOARD, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of

Administrative Hearings by its duly designated Hearing Officer, Donald R.

Alexander, on May 18, 1994, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Leatrice E. Williams, Esquire

604 Hogan Street

Jacksonville, Florida 32202

For Respondent: W. Frederick Whitson, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

Whether petitioner is entitled to a passing grade on the September 1993

barber examination.

PRELIMINARY STATEMENT

This matter arose on September 29, 1993, when respondent, The Barbers'

Board, issued an examination grade report to petitioner, Marline Lewis, advising

her that she had received a failing grade on the September 1993 licensure

examination. Thereafter, petitioner filed a letter on November 18, 1993,

requesting a hearing to contest her score. As grounds, she stated that "she

(had) successfully completed a taper cut in accordance (with the) professional

barber styling handbook" and she was not properly awarded points "for doing the

haircut," she had performed the "sanitation" correctly, and during the

examination she was distracted by conversations of the examiners which caused

her to "second guess" (her)self. The matter was referred by respondent to the

Division of Administrative Hearings on November 23, 1993, with a request that a

Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated December 29, 1993, a final hearing was scheduled

on February 18, 1994, in Jacksonville, Florida. At petitioner's request, the

matter was subsequently rescheduled to May 19, 1994, at the same location. On

May 16, 1994, the case was reassigned from Hearing Officer Charles C. Adams to

the undersigned.

At final hearing, petitioner testified on her own behalf and presented the

testimony of her husband, David Lewis, Jr., and Terry Collier, a barber styling

instructor. Respondent presented the testimony of Pamela J. Ford, a Department

of Business and Professional Regulation psychometrician; Jeri Scott, a barber

stylist; and Roland F. Bordelon, a barber stylist. Also, it offered

respondent's exhibits 1-8. All exhibits were received in evidence.

The transcript of hearing was filed on June 2, 1994. Proposed findings of

fact and conclusions of law were filed by respondent and petitioner on June 14

and 21, 1994, respectively. A ruling on each proposed finding of fact is made

in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are

determined:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida

Statutes.

12. As the petitioner in this case, Lewis bears the burden of proving by a

preponderance of the evidence that she is entitled to a passing grade. See, e.

g., Fla. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778,

789 (Fla. 1st DCA 1981). Further, unless the grading of the examination is

shown to be devoid of logic and reason, the subjective evaluation of

petitioner's examination should not be disturbed. Harac v. Dept. of

Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3rd

DCA 1986).

13. Subsection 476.144(2), Florida Statutes, provides that the Board shall

certify for licensure any applicant "who passes the examination administered by

the department, achieving a passing grade as established by board rule." Among

other things, Rule 61G3-16.001, Florida Administrative Code, establishes the

points necessary to achieve a passing grade. Section (9) thereof provides in

relevant part as follows:

(9) The score necessary to achieve a

passing grade shall be no less than

seventy-five (75) percent out of one

hundred (100) percent (based on the

average of the examiners' scores) on the

practical examination. . .

14. Petitioner has failed to meet her burden of showing that the grade she

received in the haircut category was "devoid of logic and reason." Harac at

1338. This being so, that portion of her examination score should not be

changed. The more persuasive evidence supports a conclusion, however, that on

item B-1 in the sanitation category the "no" rating given by examiner Bordelon

should be changed to a "yes" and that she be given an additional two points. In

all other respects, petitioner's request to change her score should be denied.

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

[phone]

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.

7. Partially accepted in findings of fact 1 and 7.

8. 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

submit written exceptions. Some agencies allow a larger period within which to

submit written exceptions. You should contact the agency that will issue the

Final Order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.