STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN METRO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6752

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 28, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Stephen Metro, pro se

1841 Northwest 22nd Street Pompano Beach, Florida 33609

For Respondent: Frederick H. Wilsen

Chief Staff Attorney Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner achieved a passing grade on the May 20, 1991, certified residential appraiser examination.

PRELIMINARY STATEMENT

Respondent notified Petitioner that he failed to achieve a passing score on the May 20, 1991, certified residential appraiser examination, and Petitioner filed challenges to five questions on that examination. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of a formal proceeding to determine the validity of those five questions.

Petitioner testified on his own behalf and presented the testimony of Daniel Combs and Michael G. Bellehumeur. Respondent presented the testimony of Dr. William C. Weaver. Additionally, Petitioner's Exhibits numbered 1-9 and Respondent's Exhibits numbered 1-5 were admitted in evidence. The transcript of proceedings was filed on February 13, 1992. Both parties waived their right to submit post-hearing proposed findings of fact.

FINDINGS OF FACT

1. Petitioner took the May 20, 1991, certified residential appraiser examination. He was subsequently advised that he had correctly answered 74 out of the 100 questions and had therefore achieved a score of 74. A score of 75 is the passing score on that examination.

   
   

2. In the development of the state certified residential appraiser examination, a job analysis was performed by Educational Testing Service of Princeton, New Jersey, a national psychometric company. From that job analysis, a list of tasks routinely performed by appraisers was developed. From that list of tasks, the uniform examination content outline was developed specifying the areas to be covered by the examination. From that uniform content outline, Educational Testing Service then developed a bank of questions to be utilized in the examinations for licensure or certification. Each item in the bank was validated by Educational Testing Service.

   
   

3. Once Respondent received that bank of validated test items, it sent all of the items to the Appraiser Qualifications Board of the Appraisal Foundation, an entity involved in establishing uniform standards on a national level for real estate appraisers. Respondent's examination bank was also validated by the Appraiser Qualifications Board. In addition, Respondent has its own validation committee which meets prior to the administration of an examination to review the items on that examination to again verify that the test items are valid, are not ambiguous, and are correct and proper for a residential appraiser certification examination.

   
   

4. The five questions challenged by Petitioner are part of the bank that was approved by the Appraiser Qualifications Board. Those five questions have been used on past examinations and have previously been determined to be valid. The five questions challenged by Petitioner ranged from moderately difficult to extremely easy. Subsequent to the filing of Petitioner's examination challenge, Respondent reviewed the questions challenged and performed a statistical item analysis. All of the questions had a positive point biserial correlation. The number of candidates correctly answering each of those questions was approximately the same as the number of candidates correctly answering those questions on previous examinations. For example, 94% of the candidates correctly answered question numbered 4. On previous examinations, 93% to 95% of the candidates had correctly answered that same item.

   
   

5. Sixty-seven per cent of the candidates taking the May 20, 1991, certified residential appraiser examination achieved a passing grade. Their examination was a typical examination in that the usual percentage of candidates achieved a passing score.

   
   

6. Question numbered 4 required the examinee to identify the item which was not a fixture. The correct answer was "D," which answer specified that the personalty was "unattached." Petitioner chose answer "C," which answer specified that the personalty was attached to the structure. Petitioner's answer was not correct.

   
   

7. Question numbered 73 required the examinee to name the cost method defined in the question. The correct answer was "B." Petitioner chose answer "A," which was not a correct answer.

8. Question numbered 32 tested the examinee's understanding of valuing property containing superadequacies and was written in the negative. The correct answer was "C." Petitioner's choice of "D" was not correct since that was one of the approaches that can be used.

   
   

9. Question numbered 76 tested the examinee's understanding of the difference between reproduction costs and replacement costs. The correct answer was "B." Petitioner chose answer "D." Petitioner's answer was wrong. Although the testimony at the final hearing indicated that answer "A" may also have been a correct answer to this question, Petitioner did not choose answer "A."

   
   

10. Question numbered 93 tested the examinee's knowledge of proper appraisal practices. Answer "A" was the correct answer. Petitioner chose answer "C," which was not correct. Although Petitioner questioned the propriety of this question as part of the residential appraiser examination, the expert testimony indicates that the question was appropriate. Further, the question has been validated as being appropriate by the Appraiser Qualifications Board applying national standards.

    
    

11. The parties have stipulated that Petitioner meets all of the requirements for licensure as a certified residential appraiser except for achieving a passing grade on the certification examination.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

13. Petitioner has failed to meet his burden of proof since he has failed to show that any of the five questions challenged by him are vague, ambiguous, or improper. He has also failed to prove that the answers chosen by him were correct answers and the answers chosen by Respondent were incorrect answers or, alternatively, that his answers were as correct as the Respondent's answers. Accordingly, Petitioner has failed to prove that he is entitled to receive a passing score on the May 20, 1991, certified residential appraiser examination.

    
    

14. In a Motion to Dismiss filed November 4, 1991, and denied by Order entered December 13, 1991, Respondent raised the question of which state agency would appropriately take action in this proceeding due to statutory changes. At the time that Petitioner took the examination in question in this cause, his application to be a state certified residential appraiser was pending before the Real Estate Appraisal Subcommittee of the Florida Real Estate Commission within the Division of Real Estate of the Department of Professional Regulation. Effective May 24, 1991, the Subcommittee of the Florida Real Estate Commission was abolished and its functions were transferred to the newly-created Florida Real Estate Appraisal Board within the Division of Real Estate of the Department of Professional Regulation.

    
    

15. Pursuant to Section 475.613(2), Florida Statutes, the Florida Real Estate Appraisal Board has full power to regulate real estate appraisers in the state of Florida. Although that Board was not in existence on May 20, 1991, when Petitioner took the examination under challenge in this cause, that Board now has the authority and responsibility to determine whether Petitioner has met the minimum qualifications for certification by obtaining a passing score on the examination. See, for example, Section 455.217(1)(a), Florida Statutes. Moreover, Section 455.213(4), Florida Statutes, provides as follows:

When any hearing officer conducts a hearing pursuant to the provisions of chapter 120 with respect to the issuance of a license by the department, the hearing officer shall submit his recommended order to the appropriate board, which shall thereupon issue a final order. The applicant for licensure may appeal the final order of the board in accordance with the provisions of chapter 120.

Accordingly, the agency authorized to enter a final order in this cause is the Florida Real Estate Appraisal Board.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Petitioner's

examination question challenges and finding that Petitioner failed to achieve a

passing grade on the May 20, 1991, certified residential appraiser examination. DONE and ENTERED this 16th day of March, 1992, at Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1992.

Copies furnished:

Mr. Stephen Metro

1841 Northwest 22nd Street Pompano Beach, Florida 33069

Fred H. Wilsen, Chief Staff Attorney DPR - Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Darlene F. Keller, Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-006752

Orders for Case No: 91-006752