STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELENA WEISFELD CHIRICO, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1616

) DEPARTMENT OF BANKING AND ) FINANCE, DIVISION OF FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 10, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Helena Weisfeld Chirico, pro se

2739 Parkview Drive

Hallandale, Florida 33009

For Respondent: John D. O'Neill, Esquire

Assistant General Counsel The Comptroller's Office

111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner achieved a passing grade on the September 28, 1993, mortgage broker examination.

PRELIMINARY STATEMENT

By letter dated December 1, 1993, the Department advised Petitioner that her application for licensure as a mortgage broker was denied, based upon her failure to provide the Department with evidence that she had achieved a passing grade on the mortgage broker examination within the time required. Petitioner requested an administrative hearing to show that she had obtained a passing grade on that examination and was, therefore, entitled to licensure as a mortgage broker. This cause was thereafter transferred to the Division of Administrative Hearings to conduct a formal proceeding, and Petitioner's subsequent request to delay the final hearing was granted.

At the final hearing, Petitioner Helen Weisfeld Chirico testified on her own behalf, and the Department presented the testimony of Dr. Albert Tamburrino

and of Dr. William Tierney. Additionally, Joint Exhibit numbered 1, Petitioner's Exhibit numbered 1, and the Department's Exhibits numbered 1-7 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On September 28, 1993, Petitioner took the mortgage broker examination. To pass the examination, a candidate must receive a minimum score of 75. Petitioner was advised that she had achieved a score of only 74.

   
   

2. Petitioner was afforded an opportunity to review the examination questions and her answers thereto, and she did so on October 15, 1993. She questioned her failure to receive credit for ten of her answers on that examination and provided written explanation for why she believed her answers to those questions were correct.

   
   

3. Petitioner's written challenges and explanations regarding her answers to those ten questions were reviewed by a subject matter expert and by a psychometrician employed by National Assessment Institute, the company responsible for creating and administering the Florida mortgage broker examination. Both experts determined that Petitioner's answers to those ten questions were incorrect and that her explanations therefor were without merit. Petitioner was advised that she was entitled to no extra credit for her answers on that examination, and this proceeding ensued.

   
   

4. At the final hearing in this cause, Petitioner admitted and agreed that the answers which she had chosen for questions numbered 2, 20, and 23 of the examination were incorrect. Petitioner, accordingly, withdrew her challenge to the grading of her answers to those three questions and proceeded forward regarding her answers to seven questions only.

   
   

5. Petitioner chose answer "D" to question numbered one. The correct answer was "A". Petitioner was not able to correctly answer that question because she was unfamiliar with a term used in the question. That term is found in the "Fannie Mae" guidelines. Petitioner's answer is not correct.

   
   

6. Petitioner chose answer "A" to question numbered 19, but the correct answer is "C". Petitioner's suggestion that both answers are correct is not persuasive. Petitioner chose only part of the correct answer, and multiple choice "C" contained all of the information necessary for a correct answer. Partial credit is not given for partial answers on the mortgage broker examination; rather, to receive credit for an answer, a candidate must choose the answer which completely responds to the question. Since Petitioner's chosen answer was an incomplete answer, her answer was not correct.

   
   

7. Petitioner thought that "C" was the correct answer to question numbered 33, but only answer "A" was correct. That basic question regarding title insurance and the correct answer were taken from the Handbook of the Florida Association of Mortgage Brokers, one of the required reference materials.

   
   

8. Petitioner chose answer "D" for question numbered 35, but only answer "C" was correct. As with question numbered 33, Petitioner based her answer on

   her experience as a real estate broker in New York. The question and answer, however, can be found in the "Fannie Mae" guidelines.

   
   

9. As her answer to question numbered 36, Petitioner chose answer "A". However, the only correct answer was answer "C". Petitioner's answer involved a different type of insurance than the kind involved in the question.

   
   

10. Petitioner believed that choice "B" was the correct answer to question numbered 59. However, the correct answer was choice "D". The question tested Petitioner's understanding of the definitions found in Chapter 494, Florida Statutes. Petitioner's choice of a more generic term was incorrect.

    
    

11. As her answer to question numbered 98, Petitioner chose "C", but only "B" was a correct answer. This question used the same term found in question numbered one. Since Petitioner did not understand that term, which is found in the "Fannie Mae" guidelines, she did not know the correct answer to either question numbered one or question numbered 98.

    
    

12. Petitioner is not entitled to extra credit for her answers to any of the questions challenged in this proceeding. Petitioner failed to achieve a passing grade on the September 28, 1993, mortgage broker examination.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

14. Section 494.0033(2)(b), Florida Statutes, requires an applicant for a mortgage broker license to pass a written test designed to determine competency regarding mortgage financing transactions. The Department has promulgated rules regulating the licensure of mortgage brokers, applications for licensure, and the content and minimum passing score for the licensure examination. See, Rule 3D-40.025(6), Florida Administrative Code.

    
    

15. The Department has also promulgated Rule 3D-40.031(2), Florida Administrative Code, which authorizes the Department to request additional information in conjunction with a licensure application, which information may include the applicant providing evidence of a passing score on the mortgage broker examination. That Rule requires that additional information requested must be received by the Department within 90 days. The Department requested of Petitioner evidence that she had received a passing score on the examination, and Petitioner was unable to provide that information within the required time period. Accordingly, Petitioner's application for licensure as a mortgage broker must be denied for failure to fulfill the statutory requirements, specifically, her failure to obtain a passing score on the written examination.

    
    

16. Petitioner's argument that she should be given credit for her answers to questions numbered 1 and 98 because she was not taught a term used in those questions by the school she attended is without merit. The questions came from the "Fannie Mae" guidelines, a required reference source. Similarly, Petitioner's argument that she should be given extra credit because some of the examination questions were harder than others is not persuasive. Petitioner is only required to obtain a score of 75 to pass the examination which is composed of 100 questions.

17. Petitioner's final argument involves the review process. The examination was administered on September 28, 1993. Petitioner was given the opportunity to review the examination questions and answers, including her answers, on October 15, 1993. National Assessment Institute reviewed Petitioner's challenges to certain questions on November 4, 1993. Petitioner reasons that since she was not given the correct answers and the explanation as to why her answers were wrong prior to her taking the next examination, then National Assessment Institute caused her to also fail the October examination, preventing her from providing to the Department evidence of achieving a passing score prior to the deadline for her doing so. Petitioner's argument requires little discussion. It is Petitioner's responsibility to show that she is eligible for licensure and that she meets the requirement that she be competent to act as a mortgage broker. Lastly, Petitioner's request for a waiver because National Assessment Institute was too slow in processing her examination challenge is not supported by the facts in this case or by the law in the State of Florida.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Petitioner failed to

achieve a passing score on the September 28, 1993, mortgage broker examination and denying Petitioner's application for licensure as a mortgage broker.

DONE and ENTERED this 31st day of March, 1995, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-4a have been rejected as not constituting findings of fact but rather as constituting argument.

2. Respondent's proposed findings of fact numbered 9, 11, 16, 17, 20, 23, 26, 29, 32, 35, 38, and 39 have been adopted either verbatim or in substance in this Recommended Order.

3. Respondent's proposed findings of fact numbered 6, 8, 10, 12-15, 18, 19, 21, 22, 24, 25, 27, 28, 30, 31, 33, 34, 36, 37, 40, and 41 have been rejected as being subordinate to the issues herein.

4. Respondent's proposed finding of fact numbered 7 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

COPIES FURNISHED:

Helena Weisfeld Chirico c/o Robert Weisfeld 2739 Parkview Drive

Hallandale, Florida 33009

Helena Weisfeld Chirico Post Office Box 800 Hunter, New York 12442

John D. O'Neill, Esquire Assistant General Counsel The Comptroller's Office

111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401

Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350

Harry Hooper, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 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.

Docket for Case No: 94-001616

Orders for Case No: 94-001616