STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULES LIPP, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0346

)

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 February 20, 1985, in Miami, Florida.

APPEARANCES

For Petitioner: Jules Lipp, pro se

5300 Northwest 77th Court Miami, Florida 33166

For Respondent: Drucilla E. Bell, Esquire

130 North Monroe Street Tallahassee, Florida 32301

BACKGROUND

This matter arose after petitioner, Jules Lipp, received a notice from respondent, Department of Professional Regulation, Division of Real Estate, that he had received a failing grade on the real estate broker's examination given on September 24, 1984.

By letter filed on January 21, 1985, petitioner requested a formal hearing to contest his score.

Specifically, he contended that eleven questions on the

examination were ambiguous and "unclear," and that "many" of his rejected answers were correct. The matter was forwarded by respondent to the Division of Administrative Hearings on January 30, 1985, with a request that a bearing officer be assigned to conduct a formal bearing. By notice of hearing dated February 6, 1985, a final hearing was scheduled for February 20, 1985, in Miami, Florida.

At the final hearing petitioner testified on his own behalf. Respondent presented the testimony of Raymond Hartman, a Department of Professional Regulation examination development specialist who was accepted as an expert in the area of real estate examinations, and offered respondent's exhibits 1 and 2; both were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent on March 8, 1985. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial as unnecessary.

The issue herein is whether petitioner is entitled to a passing grade on the real estate broker's examination given on September 24, 1984.

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

FINDINGS OF FACT

1. Petitioner, Jules Lipp, was a candidate on the real estate broker's examination given on September 24, 1984, in Miami, Florida. The test is administered by respondent, Department of Professional Regulation, Division of Real Estate (Division), and requires a score of 75 to pass.

   
   

2. The broker's licensing examination is developed by respondent and based on reference books authorized and published by the Division, although individual real estate schools may publish their own materials. However, the Division is not responsible for any materials published by real estate schools which may deviate from or differ with the authorized reference books from which the questions are

   drawn. The instructions on the examination require the candidates to choose the most correct answer. Whenever questions include a negative word, that word is underlined to emphasize and highlight the negative response desired.

   
   

3. The questions on the examination are reviewed prior to the administration of the examination by a validation committee consisting of an attorney, a Real Estate Commission member, the Division education director, and the Division examination development specialist.

   
   

4. On an undisclosed date petitioner received notice that he had failed the examination. After receiving no satisfaction at a review session with Division personnel in Orlando, he requested a formal hearing to challenge questions 4, 5, 12, 16, 18, 22, 50, 55, 59, 71, and 74 on the examination. During the course of the hearing, he limited his challenge to questions 5, 16, 18, 50, 71, and 74.

   
   

5. Other than his own testimony, petitioner offered no evidence to show that his answer to the above questions were the most correct. Indeed, uncontroverted expert testimony clearly established that petitioner's answers were incorrect, that the challenged questions were drawn from the authorized reference books, and were not "unclear" and "ambiguous" as petitioner contended.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. When an applicant challenges the grade he received on a professional licensing examination he must show by a preponderance 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).

8. Having failed to sustain the foregoing burden of proof, it is concluded that petitioner's grade on the real estate broker's 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 broker's examination.

DONE and ORDERED this 12th day of March, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1985.

COPIES FURNISHED:

Mr. Jules Lipp

5300 N.W. 77th Court Miami, Florida 33166

Drucilla E. Bell, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-000346

Orders for Case No: 85-000346