STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH A. KOPEC, )

)

Petitioner, )

)

v. ) CASE NO. 85-1343

) DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 8, 1985 in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Joseph A. Kopec, pro se

1107 Live Oak

New Smyrna, Florida 32069

For Respondent: H. Reynolds Sampson, Esquire

130 North Monroe Street Tallahassee, Florida 32301

BACKGROUND

This matter arose when Petitioner, Joseph A. Kopec, received a notice from Respondent, Department of Professional Regulation, Division of Real Estate, on January 22, 1985, stating he had received a failing grade on the real estate salesman examination given on December 17, 1984.

By letter dated April 8, 1985, Petitioner requested a formal hearing to contest his score. Specifically, he contended that three answers to questions on the examination were "complete answers," that if he had been given proper credit for

the three answers his grade would have been raised to 77.7%, or a passing grade, that "no where in the school book does it state One Question One Point," that he was not given citations to the answers for the foregoing three questions, and because of this he was unable to properly assess the answers at a review session conducted with Division representatives in Orlando at a later date. Finally, he contended that he has the necessary qualifications to be licensed, but the same "are not being considered." The matter was forwarded by Respondent to the Division of Administrative Hearings on April 26, 1985, with a request for formal hearing. By notice of hearing dated May 15, 1985, a final hearing was scheduled for June 5, 1985, in Daytona Beach, Florida. At the request of Respondent, the matter was rescheduled to July 8, 1985 at the same location.

At final hearing Petitioner testified on his own behalf.

Respondent presented the testimony of Raymond G. Hartman, a Department of Professional Regulation examination development specialist, and offered Respondent's exhibits 1-4. All were received in evidence.

There is no transcript of hearing. Neither party filed proposed findings of fact and conclusions of law.

The issue herein is whether Petitioner is entitled to a passing grade on the real estate salesman examination given on December 17, 1984.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Joseph A. Kopec, was a candidate on the real estate salesman examination given on December 17, 1984 in Orlando, Florida. The test is administered by Respondent, Department of Professional Regulation, Division of Real Estate (Division), and requires a score of 75 to pass. Petitioner received a score of 73.

   
   

2. The salesman's licensing examination is developed by Respondent and is based on reference books authorized and published by the Division. It contains 100 questions, each having a value of one point. As noted above, seventy five questions must be answered correctly in order to pass the examination.

3. If a candidate wishes to review his examination after his test score is received, he may request a review session with a Division representative in Orlando. Kopec did so, and was given a copy of examination questions and the appropriate answers in order that he might compare the same with the answers which he gave on the test. After reviewing this material, he notified the Division that he wished to challenge questions 58,

   62 and 71, and the grading procedures used on the examination. Thereafter, a validation committee comprised of an attorney, the Division education director, and the Division examination development specialist met and reviewed the three questions, found the Division's answers to be correct, and the grading procedures consistent with Division rules. Petitioner was so notified, thereby triggering this proceeding.

   
   

4. Other than his own testimony, Petitioner offered no evidence to show that his answers to the above questions were the most correct. At hearing he conceded that his answer to question 58 was incorrect leaving only two questions under challenge. Uncontroverted expert testimony clearly established that Petitioner's answers to the two remaining questions were incorrect, that the challenged questions were drawn from the authorized reference books, and were not "unclear" or "ambiguous" in any respect. Moreover, the procedures used to grade the examination were consonant with agency rules and instructions on the test booklet.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

6. When an applicant challenges the grade he receives on a professional licensing examination he must show by a pre- ponderance of evidence that the grade in issue was arbitrarily or capriciously given by the examining agency. State ex rel Glasser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963). Further, if the candidate fails to demonstrate that the examining agency did not follow standard procedures for preparing the examination questions and grading the examination, test results will not be disturbed. In re Corda (Fla. Bd. of Architecture, Final Order entered September 28, 1982).)

   
   

7. Having failed to sustain the foregoing burden of proof, it is concluded that Petitioner's grade on the real estate salesman examination should not be changed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that no change be made to Petitioner's grade on the real estate salesman examination.

DONE and ORDERED this 23rd day of July, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904)488- 9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1985.

COPIES FURNISHED:

Mr. Joseph A. Kopec 1107 Live Oak

New Smyrna Beach, FL 32069

H. Reynolds Sampson, Esq.

130 N. Monroe St. Tallahassee, FL 32301

Docket for Case No: 85-001343

Orders for Case No: 85-001343