STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NASRIN YAZDANI NIKNAM, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5132

) DEPARTMENT OF BANKING AND FINANCE, ) DIVISION OF FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on February 20, 1996, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Nasrin Yazdani Niknam, pro se

53 Castle Harbour Isle Drive Fort Lauderdale, Florida 33308

For Respondent: Deborah Guller, Esquire

Office of the Comptroller

201 West Broward Boulevard, Suite 302 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

Whether Petitioner's responses to the mortgage brokers examination administered in April 1995 were properly graded and, if not, whether Petitioner passed the examination?

Whether Petitioner's responses to the mortgage brokers examination administered in May 1995 were properly graded and, if not, whether Petitioner passed the examination?

PRELIMINARY STATEMENT

Petitioner applied for licensure as a mortgage broker and, in connection with that application, sat for the mortgage brokers examination in April 1995 and again in May 1995. A score of 75 is necessary to pass the examination.

Respondent received a score of 64 on the April examination. She thereafter sat for the May examination and received a score of 74. Respondent challenged the scoring of her answers to fourteen questions on the April examination.

Respondent asserts that she was given the wrong examination book at her review of the May examination. Respondent challenged the May examination on general grounds of fraud.

At the formal hearing, Respondent presented its case first to expedite the proceeding. Respondent presented the testimony of Cathryn Ferrelli and of the Petitioner. Respondent offered six exhibits, each of which was admitted into evidence. Included as an exhibit for the Respondent was the deposition of Debbie Cerrone. Ms. Ferrelli and Ms. Cerrone were, at the times pertinent to this proceeding, employed by National Assessment Institute, the company employed by Respondent to administer the two examinations at issue. Petitioner testified on her own behalf, but offered no exhibit.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is the agency of the State of Florida responsible for the licensure of mortgage brokers pursuant to Part II of Chapter 494, Florida Statutes. Pursuant to Section 494.0033(2)(b), Florida Statutes, individuals who apply for licensure as a mortgage broker are required to pass a licensure examination. To pass the examination, a candidate must receive a minimum score of 75.

   
   

2. National Assessment Institute is the company employed by Respondent to administer the licensure examination.

   
   

3. Petitioner applied for licensure as a mortgage broker. On April 25, 1995, Petitioner took the mortgage broker examination. Petitioner was advised that she had achieved a score of only 64.

   
   

4. Petitioner was afforded an opportunity to review the examination questions and her answers thereto, and she did so on May 12, 1995. She questioned her failure to receive credit for fourteen of her answers on that examination and provided written explanations why she believed her answers to those questions were correct.

   
   

5. Petitioner's written challenges and explanations regarding her answers to those fourteen questions were reviewed by staff of National Assessment Institute. The individual who reviewed Petitioner's responses did not testify in this proceeding. This individual determined that Petitioner's answers to those fourteen questions were incorrect and that her explanations were without merit. Petitioner was advised that she was not entitled to additional credit for her answers on the April 1995 examination.

   
   

6. At the final hearing in this cause, Petitioner failed to present any evidence that her April 1995 examination was improperly graded or that she was otherwise entitled to additional credit for her responses to the challenged questions on the examination.

   
   

7. Petitioner also sat for the licensure examination administered May 23, 1995. Petitioner received a score of 74 on this examination.

8. On June 9, 1995, Petitioner reviewed the grading of answers to the May 1995 examination. Petitioner asserts that the reviewer gave her the wrong question book so that the answer key would make her answers appear incorrect.

   
   

9. For her review on June 9, 1995, Petitioner was provided a correct copy of her examination book, a photo copy of her answer sheet, her original scratch paper, and two challenge sheets. The information provided Petitioner reflected the response to each question the Respondent considered to be the correct response.

   
   

10. At the final hearing in this cause, Petitioner failed to present any evidence that her May 1995 examination was improperly graded or that she was otherwise entitled to additional credit for her response to any question on the examination.

    
    

11. Petitioner failed to establish that the April or May examination was improperly administered. She likewise failed to establish that the opportunity to review the scoring of these two examinations was compromised by fraud or mistake.

    
    

12. The Respondent has promulgated Rule 3D-40.031(2), Florida Administrative Code, which authorizes it to request additional information in conjunction with a licensure application, which information may include the applicant providing evidence of a passing score on the mortgage broker examination. That Rule requires that additional information requested must be received by the Respondent within 90 days. The Respondent requested that Petitioner provide evidence that she had received a passing score on the examination. Petitioner has been unable to provide that information.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to the relief he seeks. Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

    
    

15. Section 494.0033(2)(b), Florida Statutes, requires an applicant for a mortgage broker license to pass a written test designed to determine competency regarding mortgage financing transactions. The Respondent has promulgated rules regulating the licensure of mortgage brokers, applications for licensure, and the content and minimum passing score for the licensure examination. See, Rule 3D-40.025(6), Florida Administrative Code. Petitioner failed to achieve a passing score on the April or May 1995 examinations. Accordingly, Petitioner's application for licensure as a mortgage broker must be denied for failure to fulfill the statutory requirements, specifically, her failure to obtain a passing score on the written examination.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is FURTHER RECOMMENDED that Petitioner's challenges to the scoring of the April and May 1995 licensure examinations be dismissed and, consequently, that Petitioner's application for licensure as a mortgage broker be denied.

DONE AND ENTERED this 16th day of May, 1996 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON, 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 16th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5132

The proposed findings of fact submitted by Petitioner are rejected as they are not supported by the record. While Petitioner purports to explain her answers to certain questions on the April 1995 examination, this evidence was not presented at the formal hearing.

The following rulings are made as to the proposed findings of fact submitted by Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, and 5 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 6 are adopted in part by the Recommended Order. The fact that Petitioner challenged ten question as a result of her review on June 9, 1995, was not established.

3. Since there was no dispute that the request for formal hearing was timely and this is a de novo proceeding, the proposed findings of fact in paragraph 7 are unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraphs 8, 9,10, 11, 13, and 14 are subordinate to the findings made.

5. The proposed findings of fact in paragraphs 12 and 15 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Ms. Nasrin Y. Niknam

53 Castle Harbour Isle Drive Fort Lauderdale, Florida 33308

Deborah Guller, Esquire Office of the Comptroller

Department of Banking and Finance

201 West Broward Boulevard, Suite 302 Fort Lauderdale, Florida 33301

Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350

Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350

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 ten 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: 95-005132

Orders for Case No: 95-005132