STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADEL R. JUNEIDI, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5476

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 29, 1994, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Adel R. Juneidi, pro se

400 Kings Point Drive, Apartment 1522 North Miami Beach, Florida 33160

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General

400 Robinson Street Suite 107 South Tower Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Florida Real Estate Commission (hereinafter referred to as the "Commission") should refuse, on the grounds set forth in its August 17, 1994, order, to certify Petitioner as qualified to practice as a real estate salesperson in the State of Florida?

PRELIMINARY STATEMENT

By order dated August 17, 1994, the Commission announced its intention to refuse to certify Petitioner as qualified to practice as a real estate salesperson in the State of Florida on the basis of Petitioner's conduct during the administration of "the salesperson's real estate examination on July 25, 1994 in Miami, Florida." Petitioner requested a formal hearing on the Commission's proposed action. On October 3, 1994, the matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested.

At the formal hearing held in the instant case on November 29, 1994, the Commission presented the live testimony of four witnesses: Barbara Preuss; Magdalena Bravo; Virginia Bales; and Linda Root. Preuss, Bravo and Bales were

proctors at the real estate salesperson's licensure examination administered on July 25, 1994, in Miami. Root works for the Department of Business and Professional Regulation's Division of Real Estate (hereinafter referred to as the "DRE") as its Education Coordinator. In addition to the testimony of these four witnesses, the Commission offered seven exhibits (Respondent's Exhibits 1 through 7) into evidence. The Hearing Officer admitted all seven exhibits.

Among these seven exhibits was a transcript of the deposition of Jean McDaniel, another proctor at the real estate salesperson's licensure examination administered on July 25, 1994, in Miami. The transcript of McDaniel's deposition was offered in lieu of her live testimony. The only evidence presented by Petitioner was his own testimony.

At the close of the evidentiary portion of the formal hearing on November 29, 1994, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 30 days of the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the transcript of the formal hearing on December 19, 1994. On January 5, 1995, the Commission filed a motion requesting an extension of the deadline for filing post-hearing submittals. By order issued January 6, 1995, the deadline was extended to February 2, 1995.

On February 2, 1995, the Commission timely filed a proposed recommended order containing, what are labelled as, "findings of fact" and "conclusions of law." The Commission's proposed recommended order has been carefully considered by the Hearing Officer. The "findings of fact" set forth in the proposed recommended order are addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. On or about June 20, 1994, Petitioner filed with the DRE an application for licensure as a real estate salesperson.

   
   

2. Petitioner took the real estate salesperson's licensure examination that was administered on July 25, 1994, in Miami, Florida (hereinafter referred to as the "Examination").

   
   

3. The Examination, which consisted of 100 multiple choice questions, began sometime between 8:35 and 8:45 a.m. on the morning of July 25, 1994, after the candidates had been read approximately five pages of written Examination instructions.

   
   

4. Petitioner entered the Examination room late, at approximately 9:45 a.m., at which time he was given an Examination booklet and answer sheet and escorted to his seat.

   
   

5. He was asked if he wanted to be read the written Examination instructions that had been read to the candidates prior to his arrival, but he declined the offer inasmuch as he was anxious to begin the Examination.

   
   

6. Petitioner was seated at a table next to Candidate #362078.

7. Although there were two different "forms" of the Examination, an "odd form" and an "even form," both Petitioner and Candidate #362078 had the same form.

   
   

8. On various occasions during the Examination, Petitioner looked at Candidate #362078's answer sheet to see Candidate #362078's answers. 1/

   
   

9. At least four proctors witnessed such conduct.

   
   

10. In accordance with DRE policy, Petitioner was allowed to finish the examination.

    
    

11. Petitioner answered 85 of the 100 questions on the Examination correctly, one less than Candidate #362078 answered correctly.

    
    

12. Petitioner and Candidate #362078 answered 75 of the same questions correctly.

    
    

13. There were five questions that both Petitioner and Candidate #362078 answered incorrectly. They chose the identical incorrect response on four of these five questions (Questions 24, 46, 59 and 99).

    
    

14. On Question 24, Petitioner and Candidate #362078 both gave "A" as the answer to the question. Only 10.4 percent of the 1049 candidates taking the Examination gave this incorrect response to Question 24.

    
    

15. On Question 59, Petitioner and Candidate #362078 again both gave "A" as the answer to the question. Only 12.4 percent of the 1049 candidates taking the Examination gave this incorrect response to Question 59.

    
    

    CONCLUSIONS OF LAW

    
    

16. Petitioner is seeking to be licensed as a real estate salesperson.

    
    

17. The Department of Business and Professional (hereinafter referred to as the "Department") is the state agency responsible for licensing real estate salespersons in the State Florida. Section 475.181, Fla. Stat.

    
    

18. Pursuant to Section 475.181, Florida Statutes, the Department must "license any applicant the [Florida Real Estate C]ommission certifies to be qualified to practice as a . . . [real estate] salesperson."

    
    

19. "[T]o be qualified to practice as a . . . [real estate] salesperson" an applicant must be, among other things, "honest, trustworthy, and of good character."

    
    

20. Good character" is

    
    

    not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977). A person demonstrates a lack of "good character" when he engages in "acts and conduct which would cause a reasonable [person] to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation." Florida Board of Bar Examiners Re: G.W.L., 364 So.2d 454, 458 (Fla. 1978). Among the acts and conduct which evidence an applicant's lack of "good character" is cheating or attempting to cheat on a licensure examination.

    
    

21. The Commission, in the instant case, has preliminarily determined that Petitioner is not "qualified to practice as a . . . [real estate] salesperson" because he lacks "good character" as evidenced by his "looking onto the answer sheet of the Candidate seated next to him" during the Examination.

    
    

22. The burden was on the Commission to prove by clear and convincing evidence at hearing that Petitioner engaged in such wrongdoing. See Osborne Stern and Company, Inc. v. Department of Banking and Finance, Division of Securities and Investor Protection, 19 FLW D882 (Fla. 1st DCA April 19, 1994).

    
    

23. The record in the instant case clearly and convincingly establishes that, as alleged by the Commission, at various times during the Examination, Petitioner looked at the answer sheet of the other candidate seated at his table for the purpose of ascertaining his tablemate's answers. Such conduct demonstrates a lack of "good character."

    
    

24. Inasmuch as Petitioner lacks the "good character" required by Section 475.17, Florida Statutes, he is not "qualified to practice as a . . . [real estate] salesperson."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Commission enter a final order refusing to certify Petitioner as qualified to practice as a real estate salesperson in the State of Florida, without prejudice to Petitioner reapplying for licensure at such time as he is able to show that, because of the lapse of time since the Examination and his subsequent good conduct and reputation, or other reason deemed sufficient, he is qualified to practice as a real estate salesperson and therefore the interest of the public and investors will not likely be endangered by the granting of such licensure.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1995.

STUART M. LERNER

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 February, 1995.

ENDNOTE

1/ In making this finding, the Hearing Officer has considered, but rejected as unworthy of belief, Petitioner's testimony that, to the extent that he may have looked in the direction of Candidate #362078's answer sheet during the Examination, he did so inadvertently without the intention of discovering Candidate #362078's answers.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the "findings of fact" proposed by the Commission in its proposed recommended order:

1. First sentence: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

3. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4-5. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of a summary of testimony/evidence adduced at hearing than a finding of fact based upon such testimony/evidence.

2. First and third sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony/evidence adduced at hearing than findings of fact based upon such testimony/evidence; Second and fourth sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. First, fifth, sixth and seventh sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony/evidence adduced at hearing than findings of fact based upon such testimony/evidence; Second and third sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth sentence: Accepted and incorporated in substance.

4. First, second, third, seventh and eighth sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony/evidence adduced at hearing than findings of fact based upon such testimony/evidence; Fourth, fifth and sixth sentences: Accepted and incorporated in substance.

5. First, second and fifth sentences: Accepted and incorporated in substance; Third, fourth, eleventh and fourteenth sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fifth sentence: Accepted and incorporated in substance; Sixth, seventh, eighth, ninth, tenth, twelfth and thirteenth sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony/evidence adduced at hearing than findings of fact based upon such testimony/evidence.

6. First and fourth sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony/evidence adduced at hearing

   than findings of fact based upon such testimony/evidence; Second and third sentences: Accepted and incorporated in substance.

7. Rejected as a finding of fact because it is more in the nature of argument regarding Petitioner's evidentiary presentation than a finding of fact.

COPIES FURNISHED:

Adel R. Juneidi,

400 Kings Point Drive, Apt. 1522 North Miami Beach, Florida 33160

Manuel E. Oliver, Esquire Assistant Attorney General

400 Robinson Street Suite 107 South Tower Orlando, Florida 32801

Darlene F. Keller Division Director Division of Real Estate

400 Robinson Street Post Office Box 1900

Orlando, Florida 32802-1900

Jack McCray, Esquire General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 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 of time 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: 94-005476

Orders for Case No: 94-005476