Judges: DIANE K. KIESLING
Agency: Department of Business and Professional Regulation
Latest Update: Dec. 17, 1987
Summary: Petitioner awarded credit for one answer but still failed to achieve a passing score.
87-4354STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RAY GOLD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-4354
) DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ) ESTATE COMMISSION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this cause on December 1, 1987, in Daytona Beach, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Ray Gold, Pro Se
Daytona Beach Pin Co. Post Office Box 5792
Daytona Beach, Florida 32018
For Respondent: Chester G. Senf, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
At issue in this proceeding is Petitioner's challenge to the scoring of the examination for licensure as a real estate salesman which was administered on February 2, 1987. Specifically, Petitioner asserts that credit should be given for certain answers to seven questions.
Petitioner presented his own testimony and that of Alexandria Stone.
Petitioner's Exhibits 1-4 were admitted in evidence. Respondent presented the testimony on Raymond G Hartman and had four exhibits admitted in evidence.
The parties declined to file a transcript of the proceedings and both parties waived the filing of proposed findings of fact and conclusions of law.
FINDINGS OF FACT
Pursuant to Section 475.021, the Division of Real Estate of the Department of Professional Regulation, Florida Real Estate Commission, is empowered to perform examination services as required by Chapter 475.
On February 2, 1987, an examination was administered for licensure as a real estate salesman. Petitioner, Ray Gold, sat for that examination. Mr. Gold received a score of 72, which was not a passing grade.
Rule 2IV-2.029, Florida Administrative Code, provides as follows: The answers to the Broker, Salesman and
Instructor examination shall be graded on the
basis of 100 points for a perfect examination. An applicant who receives a grade of 75 points or higher shall be deemed to have successfully completed the licensure examination. The salesman's examination shall be based upon a knowledge, understanding and application of real estate principles and practices, real estate law and real estate mathematics as contained in the Commission prescribed prerequisite education course for licensure as a real estate salesman to the extent these subject areas can reasonably be separated, 45 points shall be based on law, 45 points on principles and practices and 10 points on real estate mathematics...
Mr. Gold originally objected to the answers to Questions 29, 31, 37, 52, 56, 64, 75, and 97. In the course of the final hearing, Mr. Gold abandoned his objection to Questions 29, 31, 52, and 75.
Question 37 asks essentially whether the name of the broker or the brokerage firm must appear in all advertising. Mr. Gold believed that the correct answer is the name of the broker. In arriving at this answer Mr. Gold relied upon page 179 of the Florida Real Estate Commission Handbook. However, the edition upon which Mr. Gold relied was outdated. The current edition, FREC Handbook, 1986 edition, sets forth Rule 2IV-10.025. That rule clearly requires that advertising must contain the license name of the brokerage firm. Accordingly, it is determined that Mr. Gold's answer to Question 37 was incorrect and he should not receive credit for his answer.
Question 56 inquires regarding the appraisal technique known as the comparable sales approach to value. In this appraisal technique, Mr. Gold believes answer C -- "market value of the subject property is adjusted to comparables" -- is the correct answer. The answer deemed correct by the Respondent is answer D -- "sales price of comparables are adjusted to the subject property. "Mr. Gold relies upon a copy of a residential appraisal report form, FNMA Form 1004. The Respondent however relies upon a text, Florida Real Estate Principles, Practices, and Law, by G. Gaines, Jr., and D. S. Coleman. This text is one of the designated and approved texts for use in teaching the FREC Course I. All persons must take and pass this course in order to be eligible to sit for the examination. At page 265 of that text, it is clearly stated: "All adjustments necessary to achieve the maximum degree of similarity must be made to each comparable property, not to the subject property." Based upon this authority, it is determined that the answer D is the only correct answer to Question 56. Mr. Gold is not entitled to receive credit for his answer.
Question 64 asks which types of loss in value are usually incurable. Mr. Gold believes that both answer C -- "Economic obsolescence" -- and answer D
-- "Straight-line depreciation" -- are correct. Mr. Gold gave answer D on his examination. The answer recognized as correct by the Respondent is answer C. At page 269 of the above-cited Gaines and Coleman text, three main types of depreciation are identified and it is clearly indicated that external (economic or locational) obsolescence is incurable. Straight-line depreciation is not indicated to be incurable. Accordingly, it is determined that answer C is the correct answer to Question 64 and that Mr. Gold is not entitled to credit for his incorrect answer.
Question 97 involves calculation of the estimated value of a house and land using the cost approach to value. The question specifically gives separate information for calculation of the value of the house and the value of the land. The question then inquires, "What is the estimated value of the house?" Mr. Gold correctly applied the cost approach method and arrived at the estimated value of the house only which is reflected in answer A -- "$41,600.00." The information given specifies that the lot is worth $15,000.00. Answer B, the correct answer according to the Respondent, is "$56,600.00" -- the value of the house and the lot. Page 267 of the above-cited Gaines and Coleman text describes the steps in estimating value by the cost approach method. There it states that to determine the value of the property, one essentially calculates the value of the house and the value of the land as if it were vacant and then adds the two values together. Because the question only asked the estimated value of the house, and not the estimated value of the property, it is determined that the question was ambiguous and that Mr. Gold's answer A is equally correct. Accordingly, it is determined that Mr. Gold should receive additional credit for this correct answer.
Each question on the examination is worth one point. Based upon the foregoing, Mr. Gold is entitled to receive one additional point added to his score. As recalculated, Mr. Gold is entitled to a score of 73 on the examination. This score is insufficient to pass the exam.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris-diction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The burden of proof is on the Petitioner to demonstrate by a preponderance of the evidence that the Respondent's decision regarding correct answers to Questions 37, 56, 64, and 97 was arbitrary or capricious. See State ex rel. Glaser v. J. M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963); State ex rel. I. H. Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 4th DCA 1958). In Agrico Chemical Co. v. State Department of Environmental Regulation,
365 So.2d 759 (Fla. 1st DCA 1978), the Court defined arbitrary and capricious as follows:
A capricious action is one which is taken without thought or reason or irrationally.
An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon
competent, substantial evidence. Competent, substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.
Here, the proof fails to support the conclusion that the Respondent acted arbitrarily or capriciously in regard to the correct answers for Questions 37, 56, and 64. Taken in its most favorable light, the proof offered by Petitioner merely demonstrates that reasonable men can differ regarding the interpretation to be given to certain questions and the adequacy of the responses thereto. Where, as here, the answers deemed correct are supported by the texts which are recommended for consideration prior to taking the examination, it must be concluded that Respondent has not abused its discretion and has not acted in an arbitrary or capricious manner.
As to Question 97, it is clear that reasonable persons can differ as to the conclusion reached or as to the correct answer. Petitioner's answer does demonstrate an understanding of and ability to apply the cost approach method to evaluation. Accordingly, since the question asked only for the estimated value of the house, it is concluded that Mr. Gold's response was equally correct and that he should receive credit therefor.
However, Mr. Gold's score is still insufficient to pass the examination for licensure as a real estate salesman. Having failed to achieve a sufficient score to pass the examination, it is determined that his challenge must fail.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Florida Real
Estate Commission, enter a Final Order and therein award credit to Ray Gold for a correct answer on Question 97, but deny licensure to Mr. Gold based upon his failure to achieve a passing score on the subject examination.
DONE and ENTERED this 17th day December, 1987 in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987.
COPIES FURNISHED:
Ray Gold
Daytona Beach Pin Co. Post Office Box 5792
Daytona Beach, Florida 32018
Chester G. Senf, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
William O'Neil, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Darlene F. Keller, Acting Director Division of Real Estate
400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Docket for Case No: 87-004354
Orders for Case No: 87-004354
| Issue Date |
Document |
Summary |
|
Dec. 17, 1987 |
Recommended Order
|
Petitioner awarded credit for one answer but still failed to achieve a passing score.
|
