99-000155 Tana Shiver vs. Barber`s Board Status: Closed Recommended Order on Thursday, April 29, 1999.

Summary: Examiner grading discrepancy warrants allowing Petitioner to retake practical examination without cost.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TANA SHIVER, )

)

Petitioner, )

)

vs. ) Case No. 99-0155

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BARBER'S )

BOARD, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On March 12, 1999, a formal administrative hearing in this

case was held in Tampa, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tana Shiver, pro se

2049 Old Gunn Highway

Oddessa, Florida 33556

For Respondent: R. Beth Atchison, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

STATEMENT OF 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.

PRELIMINARY STATEMENT

By Examination Grade Report mailed September 30, 1998, the

Department of Business and Professional Regulation notified Tana

Shiver that she had not passed the practical portion of the

September 14, 1998, Barber Examination. By letter dated

October 9, 1998, the Department notified Ms. Shiver of her right

to challenge the grading of the examination. Ms. Shiver

requested a formal administrative hearing. The Department

forwarded the request to the Division of Administrative Hearings,

which scheduled the dispute for hearing.

At the hearing, the Department presented two witnesses and

had Exhibits numbered 1-4 admitted into evidence. Ms. Shiver

presented the testimony of one witness, testified on her own

behalf, and had Exhibits numbered 1-5 admitted into evidence.

A transcript of the hearing was filed. Neither party filed

a proposed recommended order. Ms. Shiver filed a post-hearing

letter restating her request for licensure.

FINDINGS OF FACT

1. On September 14, 1998, Tana Shiver took the practical

portion of the examination for licensure as a barber.

2. A passing score for the practical portion of the

examination is a 75. Ms. Shiver scored a 69.

3. A passing score on the written portion of the

examination is a 75. Ms. Shiver scored a 90.

4. 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.

5. 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.

6. Elements of the practical examination include haircut

(45 points), technique (10 points), shampoo (10 points),

sanitation (25 points), and chemical services (10 points).

7. Ms. Shiver received the maximum number of points for

technique, shampoo, and chemical services.

8. Ms. Shiver received an average score of 15.50 points out

of a possible total of 45 on the haircut.

9. Ms. Shiver received a score of 23.50 points out of a

possible total of 25 on sanitation.

10. 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.

11. 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.

12. At the hearing, the examiners testified as to the

training provided to examiners prior to testing sessions.

13. 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.

14. 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.

15. 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.

16. Score sheet items B-1 through B-4 relate to the

sanitation portion of the examination.

17. Item B-1 states "[t]he candidate washed hands before

beginning the haircut." Both examiners gave credit for this

item.

18. 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."

19. 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.

20. According to the training provided to the examiners,

Ms. Shiver should have received credit from both examiners on

item B-2.

21. 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.

22. Item B-4 states "[t]he candidate properly stored clean

and dirty linen during the haircut." Both examiners gave credit

for this item.

23. Score sheet items B-5 through B-7 relate to the

technique portion of the exam.

24. 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.

25. 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.

26. Item B-7 states "[t]he candidate used the freehand

technique when doing the haircut." Both examiners gave credit

for this item.

27. Items B-8 through B-16 are related to the haircut

portion of the examination.

28. 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."

29. 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.

30. 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."

31. 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.

32. 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."

33. 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.

34. 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.

35. 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.

36. 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.

37. 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.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

39. The Respondent is the agency charged with licensure and

regulation of barbers in the State of Florida. Chapter 476,

Florida Statutes.

40. In an administrative challenge to the results of an

examination process, an applicant must establish by a

preponderance of the evidence that the questions are misleading,

that scoring of his exam was erroneous, and that the exam

responses should receive additional consideration. Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). In this case, the burden has not been met,

41. In relevant part, Rule 61G3-16.001, Florida

Administrative Code, Examination for Licensure, provides as

follows:

(7) The practical portion of the examination

for licensure shall have a maximum time limit

of 1 3/4 hours. Effective October 1, 1988,

candidates will be required to perform a

taper haircut to satisfy the practical

portion of the examination. The areas to be

tested and relative weights are as follows:

CATEGORIES POSSIBLE POINTS

Haircut 45

Permanent Wave 10

Shampoo 10

Sanitation 25

Technique:

Razor, Shears, Clippers 10

The grade sheet for the practical examination

will contain spaces for comments by the

grading examiner. The areas of comment should

be drawn from the following criteria:

(a) Haircut:

1. Top is even and without holes, gaps,

or steps

2. Top (horseshoe) blends with sides

and back

3. Front outline is even

4. Haircut is proportional and sides

are equal in length

5. Sides and back are without holes,

gaps or steps

6. Sides blend with the back

7. Sideburns and outlines are even

8. Sideburns, outline and neckline are

clean shaven

9. Neckline is properly tapered

(b) Permanent Wave:

1. Blocking of the permanent wave is

clean, uniform, and matches rod diameter

and length

2. Hair is wound uniformly across the

rods with the proper amount of tension

3. Rods are parallel to subsection

parting, not more than one-half off base

and are not over-directed

4. Hair is evenly spread in end

paper(s) and does not extend beyond edge

of paper

(c) Shampoo: After the shampoo, the model's

hair and scalp were clean and free of shampoo

(d) Sanitation:

1. The candidate used the proper linen

setup for a shampoo

2. The candidate properly stored clean

and dirty linen during the shampoo

3. The candidate washed hands before

beginning haircut

4. The candidate used the proper linen

setup for haircut

5. During the haircut, the candidate

replaced tools in sanitizer after each

use

6. The candidate properly stored clean

and dirty linen during the haircut

7. The candidate washed hands before

beginning the permanent wave

8. The candidate used the proper

linen/cotton wrap setup for the

permanent wave

9. The candidate kept tools sanitized

during the permanent wave

10. The candidate properly stored clean

and dirty linen during the permanent

wave

(e) Technique:

tools in a safe manner during the

haircut

by clippers or other tools during the

haircut

when doing the haircut

(8) Failure of the examinee to complete the

tested in the practical portion of the

examination, e.g., haircut, shall result in

assigned to that area.

(9) The score necessary to achieve a passing

percent out of one hundred (100) percent

(based on the average of the examiners'

seventy five (75) percent out of one hundred

(100) percent on the written examination. In

point five (.5) or above shall be rounded up

to the next whole number. Percentages less

the next whole number.

42. Ms. Shiver correctly notes that her score of 15.50 on

to the next whole number, giving her a score of 16 on "haircut,"

and 24 on "sanitation," for a total score of 70 points, still shy

43. It should be noted that the haircut scoring items on

the practical examination do not appear to the address the

license and regulate barbers. As set forth at Section 476.024,

Florida Statutes, the purpose of regulating barbers is as

476.024 Purpose. --The Legislature recognizes

that barbering is potentially dangerous to

the public in that barbers work in close

proximity to patrons, thus risking

transmission of disease and vermin, apply

various caustic chemical agents to the hair

and scalp of patrons, and employ instruments

which could harm patrons if improperly used.

Therefore, it is deemed necessary in the

interest of public health, safety, and

welfare to regulate the practice of barbering

in this state. However, restrictions should

be imposed only to the extent necessary to

protect the public from these recognized

dangers and in a manner which will not

unreasonably affect the competitive market .

(Emphasis supplied)

44. In relevant part, Section 476.134, Florida Statutes,

sets forth the specific authority for the Barber Board's

examination rules. Subsection (2) provides as follows:

(2) The board shall adopt rules specifying

the areas of competency to be covered by the

examination. Such rules shall include the

relative weight assigned in grading each

area. All areas tested shall be reasonably

related to the protection of the public and

the applicant's competency to practice

barbering in a manner which will not endanger

the public. (Emphasis supplied.)

45. Score sheet items B-1 through B-4 are directly related

to sanitation and safety issues and address the purpose statement

set forth at Section 476.024, Florida Statutes.

46. Score sheet items B-8 through B-16 clearly relate to

the aesthetic quality of the haircut. Such issues are not within

those addressed by the Legislature in the statement of purpose.

In fact, such considerations appear to be directly prohibited by

the language that states "restrictions should be imposed only to

the extent necessary to protect the public from these recognized

dangers

competitive market." The sole danger against which the public is

being protected by exam items B-8 through B-16 is that of a poor

47. It is reasonable to assume that a barber who gives

aesthetically poor haircuts would be negatively impacted from the

haircut is uneven or poorly proportioned has no relevance to

whether the barber poses a threat related to "transmission of

agents to the hair and scalp of patrons," and improper use of

barbering instruments. These elements are addressed by test

48. Test items B-8 through B-16 appear unrelated to the

purpose for which the Legislature authorized the licensure and

However, absent a successful challenge to the rules under Section

120.56, Florida Statutes, the rule remains in effect.

examiner's differing opinions as to how credit is awarded for

unseen activities during the practical exam, the following

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:

1. Allowing Tana Shiver to retake the practical portion of

the barber examination at no cost, and

2. 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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.