97-005395 Nina Odom vs. Barber`s Board Status: Closed Recommended Order on Wednesday, May 27, 1998.

Summary: Applicant required to pay full examination fee and retake both parts of exam even if one part of exam was successfully completed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NINA D. ODOM, )

)

Petitioner, )

)

vs. ) Case No. 97-5395

)

BARBERS' BOARD, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 27, 1998, in Jacksonville, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Nina D. Odom, pro se

1230 East 7th Avenue, Apartment 9

Jacksonville, Florida 32206

For Respondent: R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should have

received a passing grade on the written part of her barber

examination.

PRELIMINARY STATEMENT

This case began on June 30, 1997, when Petitioner, Nina D.

Odom, filed a letter with the Bureau of Testing, Department of

Business and Professional Regulation, requesting a hearing to

contest her failure of the written portion of the April 1997

barber examination. Among other things, Petitioner questioned

whether she had actually failed the questions pertaining to

"implements." She also contended that she should not be required

to pay the full examination fee if she were taking only one part

of the examination. Finally, she requested that she not be

required to take both the practical and written portions of the

examination if she only failed one part. The matter was referred

by the agency to the Division of Administrative Hearings on

November 18, 1997, with a request that an Administrative Law

Judge be assigned to conduct a hearing.

By notice of hearing dated January 30, 1998, a final hearing

was scheduled on March 2, 1998, in Jacksonville, Florida. At the

request of Respondent, Barbers' Board, the case was rescheduled

to April 27, 1998, at the same location. On April 23, 1998, the

case was transferred from Administrative Law Judge P. Michael

Ruff to the undersigned.

At final hearing, Petitioner testified on her own behalf.

Respondent presented the testimony of Edwin Stewart, Jr., a

licensed barber. Also, it offered Respondent's Exhibits 1-4.

All exhibits were received in evidence.

The transcript of hearing was filed on May 7, 1998.

Proposed findings of fact and conclusions of law were due no

later than May 21, 1998. None were filed by either party.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. 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).

2. 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.

3. 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.

4. 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.

5. In this case, Petitioner has contended that she should

have been given credit for her answers to questions 2, 58, and

63. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

12. As the party seeking licensure as a barber, Petitioner

must prove by the preponderance of the evidence that she is

entitled to the requested relief. See , e . g ., Fla. Dep't of

Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA

1981).

13. The more persuasive evidence shows that Petitioner gave

incorrect responses to questions 2 and 63 and that she should not

receive a passing grade on the April 1997 practical portion of

the barber examination.

14. As to Petitioner's remaining contentions, while sincere

and well-intended, they must also be denied on the ground

existing agency rules validate the Bureau's present testing

procedures. More specifically, 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, Petitioner is required to pay the $150.00

fee each time she retakes the examination. Finally, Rule 61G3-

16.002(2), Florida Administrative Code, provides that while "[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," the applicant "must pass both portions of the examination

within a one year period in order to qualify for licensure."

Therefore, under the terms of the rule, unless Petitioner has

passed the practical portion of the examination within the prior

twelve months, the Bureau may properly require Petitioner 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Divi sion 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

fifteen days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

Barbers' Board.