STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIP I. SALERNO, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2442

) DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF )

REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on June 29, 1988 in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Phillip I. Salerno, Pro se

11812 Timbers Way

Boca Raton, Florida 33428

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

BACKGROUND

Petitioner sought to be licensed by Respondent as a real estate broker. A requirement of such licensure is the successful completion of an examination by the applicant. Petitioner took the examination, but failed to muster a passing grade. He sought a formal administrative hearing regarding Respondent's determination that an the answer given by the Petitioner on the examination was incorrect. Had the Respondent determined the answer to be correct, Petitioner would have been entitled to licensure.

At the final hearing, the Petitioner presented testimony of one witness and one evidentiary exhibit. The Respondent presented the testimony of two witnesses and three evidentiary exhibits. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

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

FINDINGS OF FACT

1. In February of 1988, Petitioner took the real estate broker's examination compiled by Respondent, and otherwise complied with all applicable licensure requirements.

   
   

2. The Petitioner received a grade of 74 on the written examination. A grade of 75 or higher is required to pass the test. Had Petitioner answered question number 62 with the answer deemed by Respondent to be correct, Petitioner's score would have been 75 and, as such, would have entitled him to licensure.

   
   

3. Question number 62 reads as follows:

   
   

   The Department of Professional Regulation may withhold notification to a licensee that the licensee is being investigated IF:

   
   

   1. NOTIFICATION COULD BE DETRIMENTAL TO THE INVESTIGATION.

   2. NOTIFICATION COULD BE DETRIMENTAL TO THE LICENSEE.

   3. THE ACT UNDER INVESTIGATION IS A CRIMINAL OFFENSE.

      
      

4. Possible answers to question number 62 were as follows:

   
   

   1. I only.

   2. II only.

   3. I and III only.

   4. I, II and III.

   
   

5. The answer to question number 62 chosen by Petitioner was D. The Respondent determined the correct answer should have been C.

   
   

6. The Respondent's examining board followed a standard procedure for conducting and grading the examination. Statistically, 58 per cent of candidates taking the examination and placing in percentile rankings 50 through 99, answered the question correctly. Of those candidates taking the examination and placing in the lower half (0-50 percentile), 33 per cent answered the question correctly. The results obtained to question number 62 from all applicants taking the examination revealed the question exceeded effective testing standards.

   
   

7. Question number 62 and the appropriate answer to that question are taken directly from section 455.225(1), Florida Statutes. The purpose of the question is to determine if an applicant is knowledgeable of the law governing real estate broker licensees.

   
   

8. The Respondent adopts the position that section 455.225(1), Florida Statutes, mandates that Respondent shall notify a licensee of any investigation of which the licensee is the subject and authorizes withholding notification to that licensee only where such notification would be detrimental to the investigation, or where the act under investigation is a criminal offense.

   
   

9. The Petitioner takes the position that section 455.225(1), Florida Statutes, does not prohibit withholding notification of an investigation from a

   licensee when such notification would be detrimental to the licensee. The Petitioner bases this contention on the broad power provided the Real Estate Commission by section 475.05, Florida Statutes. The Commission has not, however, adopted any rule, regulation or bylaw supportive of Petitioner's position and the statutory mandate is clear. Further, the statute referenced by Petitioner specifically does not support an exercise of this power of the Commission if the result is a conflict with another law of the State of Florida.

   
   

10. Section 455.225(1), Florida Statutes, states Respondent "shall" notify "any person" of an investigation of that person. Under that section, discretionary authority to refrain from such notification is allowed only where there is a potential for harm to the investigation, or the matter under investigation is a criminal act.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

12. The Petitioner has the burden to demonstrate by a preponderance of the evidence that the decision of the Respondent determining Petitioner's answer to question number 62 to be incorrect was arbitrary and capricious. The Petitioner has not met this burden.

    
    

13. Test results should not be disturbed absent a showing that standard testing or grading procedures were violated, or absent a showing that the examination candidate was treated differently than other candidates. Macino v. Department of Professional Regulation, Board of Architecture, 5 FALR 994A (1983).

    
    

14. The proof establishes that section 455.225(1), Florida Statutes, is the basis for question number 62 and that the answer to the question is drawn directly from that statutory section. The statute specifically authorizes Respondent to exercise discretion and withhold otherwise mandatory notification of an investigation "of any person" in only two situations; one, where notification would be detrimental to an investigation and two, where the act under investigation is a criminal offense. Neither of those two choices provides Respondent authority to withhold notification in order to prevent detriment to a licensee.

    
    

15. The Petitioner has not been misled by any exercise of the Commission's power to establish a procedure to withhold notification of an investigation from a licensee due to detriment to the licensee. Notably, the power of the Commission relied upon by Petitioner is not even applicable where an exercise of this power of the Commission would be in conflict with "laws of the United States or of this State..." Section 475.05, Florida Statutes. Therefore, in view of the specificity of section 455.225(1), Florida Statutes, the argument of Respondent is not persuasive.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered confirming the grade of the

Petitioner as previously determined.

DONE AND RECOMMENDED this 20th day of July, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 20th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2442

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings

The Petitioner submitted a document entitled summary of hearing and consisting of seven numbered paragraphs. They are treated as follows:

1. Rejected as unnecessary.

2. Included in findings 5, and 7.

3. Rejected, contrary to the weight of the evidence. 4.- 6. Rejected, contrary to evidence adduced.

7. Rejected as argument.

Respondent's Proposed Findings

The Respondent submitted a three page document entitled "argument" and consisting of eight unnumbered paragraphs. Numbers 1-8 have been applied to those paragraphs. They are treated as follows:

1.-5. Rejected as conclusions of law.

6. Included in findings 8, 9, and 10.

COPIES FURNISHED:

H. Reynolds Sampson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller Acting Director

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Phillip I. Salerno 11812 Timbers Way

Boca Raton, Florida 33428

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-002442

Orders for Case No: 88-002442