Judges: WILLIAM R. CAVE
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 29, 1987
Summary: Pet failure to review req'd text for course I does not make question on exam misleading & there was insufficient evidence to show question not reliable.
87-3359STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DORIS L. WILLIAMS, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3359
) FLORIDA REAL ESTATE COMMISSION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before William R. Cave, Hearing Officer, with the Division of Administrative Hearings, on November 16, 1987, in Jacksonville, Florida. The issue for determination is whether Petitioner should be given credit for her answers to questions thirty-two (32) and ninety-four (94) on the examination for licensure as a real estate salesman given by the Florida Real Estate Commission on April 13, 1987.
APPEARANCES
For Petitioner: Doris L. Williams, Pro Se
9239 Carnoustie Lane Baymeadows
Jacksonville, Florida 32216
For Respondent: Chester G. Senf, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
BACKGROUND
Petitioner, an applicant for licensure as a real estate salesman, by examination, took the Florida Real Estate examination April 13, 1987 and failed to achieve a passing grade. Upon being advised of her failure, Petitioner timely requested a review and filed appropriate objections. No relief was granted and Petitioner timely requested a formal hearing in accordance with Section 120.57, Florida Statutes, and this hearing ensued.
In support of her position, Petitioner testified on her own behalf and presented the testimony of Patricia Ricks. Petitioner's exhibits 1 and 2 were received into evidence. Respondent presented the testimony of Raymond G. Hartman. Respondent's exhibits 1 through 3 were received into evidence.
The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
On April 13, 1987, the Petitioner, as an applicant for licensure as a real estate salesman, took the Florida Real Estate examination for licensure as a real estate salesman.
Petitioner received a grade of seventy-four (74) which is below the minimum passing grade of seventy-five (75).
Upon being advised of her failure to achieve a passing grade, Petitioner filed objections to questions thirty- two (32) and ninety-four (94).
Question thirty-four (34) is as follows:
Salesman Smith regularly works out of and reports to her Broker's branch office.
Which of the following statements about Smith's registration is true?
Salesman Smith must be registered from the branch office.
Salesman Smith must be registered from the principal office.
Salesman Smith can be registered from either the principal or the branch office.
As long as her Broker is registered, Salesman Smith need not be registered from either office.
The correct answer is "C".
Petitioner answered "A".
Question ninety-four (94) is as follows:
The Smiths own a beachfront cottage with a replacement value of $200,000.00. The property insurance company requires them to carry sufficient insurance to meet their 80 percent coinsurance clause. The Smiths carry $80,000.00 in coverage. A hurricane causes $60,000.00 in damages. How much will the Smiths recover from the insurance company?
A. $30,000.00
B. $60,000.00
C. $80,000.00
D. Nothing
The correct answer is "A".
Petitioner answered "B".
The educational course prescribed by the Florida Real Estate Commission and designated as Course I must be satisfactorily completed before the applicant for licensure as a real estate salesman by examination is allowed to take the examination.
The Florida Real Estate Commission Handbook, current edition, is a required text for Course I.
Additional texts for Course I are listed in the Florida Real Estate Commission Course I Syllabus and Instructor's Guide, and it is recommended that the instructor assign one or more of these texts for study.
The additional text assigned by Petitioner's instructor was Florida Real Estate Principles, Practices and Law, (7th Edition) by G. Gaines, Jr. and
D.S. Coleman which, in its discussion on registration of salesman, provides the following:
Salespeople who regularly work out of an office other than a broker's principal office should register from that branch office... (e.s.). Rule 21V-10.23, Florida
Administrative Code is referenced in the margin.
The Florida Real Estate Commission Handbook, current edition, at page ninety (90) quotes the text of Rule 21V-10.23, Florida Administrative Code, and in pertinent part provides:
Salesman, at the discretion of the
broker, may be registered from the principal office or from the branch office they regularly work out of or report to. ...
Another additional text listed but not assigned by Petitioner's Instructor is Real Estate, (7th Edition), by M.A. Unger and G. R. Karvel.
The text, Real Estate (7th Edition) by Unger and Karvel, in Chapter 12, page 251, covers the material that is necessary to answer question ninety- four(94).
Neither the Florida Real Estate Commission Handbook, current edition, nor Florida Real Estate Principles, Practices, and Law, (7th Edition) by Gaines and Coleman adequately covers the material that is necessary to answer question ninety-four (94).
Petitioner challenges question thirty two (32) on the basis that the material in Florida Real Estate Principles, Practices, and Law, an approved text, would cause an applicant to answer question thirty-two (32) by selecting "A" rather than "C".
Petitioner challenges question ninety-four (94) on the basis that insurance is an area that is not within the required expertise of the real estate salesman and should not have been on the examination. Additionally, Petitioner challenges question ninety-four (94) on the basis that neither the Florida Real Estate Commission Handbook, current edition, nor the approved text
assigned by her instructor adequately covers the material necessary to correctly answer question ninety-four (94)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
An applicant for licensure has the burden of establishing entitlement to the license by demonstrating the invalidity of the grounds for denial. Rule 28-6.08(3) Florida Administrative Code; See Department of Transportation v. J.W.C., Co., Inc., 396 So.2d 778 (1 DCA Fla. 1981). The Petitioner has failed to sustain her burden of proof.
The answer to question thirty-two (32) is set forth clearly and concisely in the Florida Real Estate Commission Handbook, current edition, the only required text for Course I. Petitioner's failure to review, or Petitioner's instructor's failure to emphasize the review of, the required text does not make question thirty-two (32) misleading or improper, thereby requiring the Florida Real Estate Commission to grant Petitioner credit for that question.
Petitioner's contention that questions concerning insurance should be the subject matter of an insurance examination and not an examination for licensure as a real estate salesman because it is not within the general areas of competency for a real estate salesman must be supported by substantial competent evidence. There was no evidence in the record that would support Petitioner's contention that the material covered by question ninety-four (94) did not reliably measure the general areas of competency specified in Rule 21V- 2.029, Florida Administrative Code or that such material was not covered by Petitioner's instructor in Course I regardless of its absence in all of the approved texts except Real Estate, (7th Edition) by Unger and Karvel.
RECOMMENDATION
Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record and the candor and demeanor of the witnesses, it is
RECOMMENDED that the Florida Real Estate Commission enter a Final Order denying the relief requested by Petitioner in her petition.
Respectfully submitted and entered this 29th day of December, 1987, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
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 29th day of December, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3359
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Petitioner has filed what she refers to as a written summary of the facts. It is more of a mixture of facts, law and interpretations. The summary consists of five (5) unnumbered
paragraphs which for purposes of this Appendix have been numbered
1 through 5.
Paragraph 1 is an introductory paragraph which contains no facts to accept or reject.
Adopted in Findings of Fact 12, 16, and 17, except for the last sentence which is rejected as not being material or relevant.
Rejected as not being a statement of fact but being an argument as to why question ninety-four (94) should not have been a part of the examination.
First sentence adopted in Findings of Fact 12 and 13. The balance of paragraph 4 is rejected as being an argument rather than a statement of fact.
Paragraph 5 is substantially a request for relief and does not contain any statement of facts.
Rulings on Proposed Findings of Fact Submitted by the Respondent
1. Adopted in Findings of Fact 1 and 2.
2-3. Adopted in Findings of Fact 3 and 4 respectively.
Adopted in Findings of Fact 5, 6, 13 and 14.
Rejected as being an argument rather than a statement of fact.
6- 9. The Respondent's Proposed Order, Findings of Fact and Memorandum of Law as submitted did not contain paragraphs 7 and 8, and paragraphs 6 and 9 were incomplete. Therefore, no rulings were made on paragraphs 6 through 9.
10. Rejected as being a statement of testimony and not a statement of fact. However, if stated as a fact it would be rejected as not being material or relevant.
COPIES FURNISHED:
Doris L. Williams, Pro Se 9239 Carnoustie Lane Baymeadows
Jacksonville, Florida 32216
Chester G. Senf, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Darlene F. Keller, Executive Director Division of Real Estate
Department of Professional Regulation Post Office Box 1900
Orlando, Florida
Docket for Case No: 87-003359
Orders for Case No: 87-003359
| Issue Date |
Document |
Summary |
|
Dec. 29, 1987 |
Recommended Order
|
Pet failure to review req'd text for course I does not make question on exam misleading & there was insufficient evidence to show question not reliable.
|
