Judges: DANIEL M. KILBRIDE
Agency: Department of Business and Professional Regulation
Latest Update: Sep. 28, 1989
Summary: Whether Petitioner's application for a real estate salesman's license should be approved.Questions not arbitrary on real estate license exam.
89-2402STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
VICTOR KEVIN KOELLNER, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2402
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ESTATE, )
)
Respondent. )
)
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel N. Kilbride, on September 15, 1989 in Rockledge, Florida. The following appearances were entered:
APPEARANCES
FOR PETITIONER: Victor Kevin Koellner, pro se
1385 Taurus Court
Merritt Island, Florida 32953
FOR RESPONDENT: E. Harper Field, Esquire
Deputy General Counsel
Department of Professional Regulation Northwood Centre, Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
STATEMENT OF THE ISSUES
Whether Petitioner's application for a real estate salesman's license should be approved.
PRELIMINARY STATEMENT
This matter began when Petitioner applied for licensure as a real estate salesman. Petitioner was approved to take the salesman's examination but Respondent denied the application based on Petitioner's failure to obtain a passing grade on the exam. A formal administrative proceeding was requested by Petitioner. This hearing followed.
Respondent presented two evidentiary exhibits at hearing and one witness.
Petitioner presented no evidentiary exhibits and testimony of two witnesses, including himself. Proposed findings of fact submitted by Petitioner and Respondent 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
Petitioner is Victor Kevin Koellner. By application, he sought licensure as a real estate salesman.
Petitioner was a unsuccessful candidate for the December 1988 real estate salesman's licensure examination. Petitioner received a score of 74. A score of 75 is required for licensure.
Each correct answer has a grade value of one (1) point. Candidates are instructed to choose the most correct answer from among the multiple choice answers given.
Petitioner challenges the answers selected by the Florida Real Estate Commission as correct as to questions numbered 15 and 52, on the test administered on December 5, 1988.
Question 15 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1.
The commission holds that the correct answer to question 15 is D. (Do any of the above). The Petitioner alleges that the better answer is A. (Request an Escrow disbursement order from the Florida Real Estate Commission). Section 475.25(1)(d), Florida Statutes, supports the Respondent's conclusion.
Seventy-three (73%) percent of the candidates taking the examination on December 5, 1988 answered the question correctly.
Question 52 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1 (page 2).
The commission holds that the correct answer is C. (Pay it at the closing). The Petitioner alleges that the correct answer is D. (Not pay it). The question asked what should the seller do concerning the sales commission at the closing. Based on the facts given in the Florida Real Estate Handbook, 1987 Edition, page 272, the seller would have no option but to pay the commission at closing.
Sixty and 3/10 (60.3%) percent of the candidates taking the examination on December 5, 1988 answered question 52 correctly.
CONCLUSIONS OF LAW
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.
The authority of the Respondent to take a license examination to practice real estate in this state is derived from Chapter 475, Florida Statutes.
The Florida Real Estate Commission may deny an application for licensure if the applicant has failed to pass the real estate salesman's license. Section 475.181, Florida Statutes.
A candidate who unsuccessfully sits for a licensure examination carries a heavy burden in proving that the Department's decision in failing to allow him credit for the challenged questions is arbitrary or capricious. The burden rests upon Petitioner to demonstrate by a preponderance of the evidence that the Department's decision was either arbitrary or capricious. See: State ex rel Glaser vs. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963).
In this case, the Petitioner failed to present competent substantial evidence to support the conclusion that the Department acted arbitrarily or capriciously. Viewed in the light most favorable to the Petitioner, the proof merely demonstrates that reasonable people may differ regarding an interpretation to be given to a certain question and the adequacy of the responses to that question. This is not, however sufficient to support a determination that the Department abused its discretion in this case. State ex rel I.H. Topp vs. Board of Electrical Examiners, 101 So.2d 583 (Fla. 4th DCA 1958). Petitioner's challenge to questions numbered 15 and 52 is without merit.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application
for licensure.
DONE AND ENTERED this 28th day of September, 1989, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
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 28th day of September, 1989.
APPENDIX
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Respondent's Proposed Findings:
1-8. Adopted in substance. Petitioner's Proposed Findings:
Paragraphs 1,2,3,4,5 (in substance), 7, and 10 are accepted. Paragraphs 6,8 and
9 are rejected as not relevant.
COPIES FURNISHED:
Victor Kevin Koellner, pro se 1385 Taurus Court,
Merritt Island, Florida 32953
E. Harper Field, Esquire Deputy General Counsel Department of Professional
Regulation
Northwood Centre, Suite 60 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Darlene F. Keller, Division Director Real Estate Legal Services
400 West Robinson Street Orlando, Florida 32801
Kenneth E. Easley General Counsel
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Docket for Case No: 89-002402
Orders for Case No: 89-002402
