STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTONELLA DIABELLA, )

)

Petitioner, )

)

vs. ) Case No. 03-4603

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on February 10, 2004, by video teleconference with the parties appearing from West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Antonella DiBella, pro se

17216 Newport Club Drive Boca Raton, Florida 33496

For Respondent: Charles F. Tunnicliff, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether the Petitioner, Antonella DiBella, is entitled to credit for the answer provided to Question 68 on the Florida

real estate broker's license examination taken on June 25, 2003. If so, the Petitioner asserts she should have been awarded a passing grade on the licensure test.

PRELIMINARY STATEMENT

On November 9, 2003, the Petitioner requested a post- examination hearing to challenge the results of the Florida real estate broker's license examination taken on June 25, 2003. The Petitioner maintained she should have received a passing grade based on the answers she provided on the examination. The case was forwarded to the Division of Administrative Hearings for formal proceedings on December 8, 2003. Thereafter, the matter was promptly scheduled for hearing in accordance with the Response to Initial Order filed on December 22, 2003.

At the hearing, the Petitioner testified on her own behalf and presented testimony from John Paolino, a licensed real estate broker in New York. The Respondent offered testimony from Fred Passarelli, a licensed real estate broker in Florida, and Dan Combs, a psychometrician employed by the Respondent.

Prior to the hearing the parties were afforded time to review each of the examination questions initially challenged by the Petitioner. Upon further review, the parties announced that only Question 68 remained at issue. The Petitioner

maintained that her answer to Question 68 was correct and that, had she been awarded credit for that question, she would have achieved a passing grade. The Respondent acknowledged that credit for Question 68 would have given the Petitioner a passing grade, but asserted the answer provided should not be favorably considered.

The Respondent requested and official recognition has been taken of the provisions of law identified as Petitioner's Exhibits 1-4. Additionally, Petitioner's Exhibit 14C and page

10 of Petitioner's Exhibit 10 were received in evidence.

The transcript of the proceeding was filed with the Division of Administrative Hearings on March 12, 2004. The parties were granted ten days from that time to file proposed recommended orders. The Respondent timely filed a Proposed Recommended Order that has been fully considered in the preparation of this Recommended Order. The Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. The Petitioner is a candidate for licensure as a Florida real estate broker. At issue in this proceeding are the examination results to the licensure test taken by the Petitioner on June 25, 2003.

2. The Respondent is the state agency charged with the responsibility of administering the licensure examinations and

   for determining whether or not an applicant's test answers should receive credit.

3. In this case the Petitioner believes the answer she provided to examination Question 68 should receive credit.

4. Question 68 is part of a multiple-choice section that gives applicants a statement then lists four options for completion of the statement; only one of the options is awarded points. The Petitioner chose an option that was not awarded points. The selection and scoring of the question is not disputed. That is, the Petitioner acknowledges the selection she made and recognizes that it was not the option awarded points by the Respondent. Thus there was no scoring error alleged.

5. Instead, the Petitioner believes that the answer she provided, "leverage," was the correct completion to the statement. It was not. The statement in Question 68 described a process that is defined as "disintermediation." The correct answer is supported by information found in texts approved by the Florida Real Estate Commission (FREC).

6. Neither the Respondent nor FREC requires real estate broker schools to use any specific textbook. Schools choose textbooks from those approved by the Respondent and prepare students as they may deem appropriate. The Respondent does not require that an approved text contain all the terms that

   may appear on an examination within a glossary. In fact, the textbook used by the Petitioner did not contain "leverage" or "disintermediation" within the glossary.

7. The Petitioner believes that had the terms been within the glossary of her text, the answer to Question 68 would have been clear, but that nevertheless the answer she provided was still within the range of acceptable answers.

8. "Leverage," as defined by the Real Estate Investment Analysis and Business Opportunity Brokerage text, "is the use of borrowed funds to finance the purchase of an asset." See p. 357.

9. The Florida Real Estate Principles, Practices & Law text, at page 278, describes "disintermediation" as follows:

   When the yield from other investments is greater than the yield from the thrift institutions, many depositors withdraw savings and invest directly in the more rewarding investment. When substantial funds are withdrawn from thrift institutions, the process is called disintermediation. The result is a so- called credit crunch and a shortage of mortgage funds. As funds available for mortgages decrease and credit shortages occur, interest rates on mortgage money increase. In turn, as interest rates rise, demand for mortgages declines, and economic activity in the real estate industry falls off. (Emphasis in original)

   
   

10. Based upon a complete review of Question 68, the answer provided by the Petitioner was inconsistent with the answer selected by the Respondent. The two could not be the completion of the statement as they are not remotely similar in definition.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

12. As the applicant, the Petitioner bears the burden of proof in this case to establish that the answer she provided should have received credit. To do so the Petitioner must establish she gave the correct answer and the agency erroneously scored the answer. Alternatively, to set aside the examination results, the Petitioner may show the testing procedure was faulty, arbitrarily or capriciously worded or graded, or that she was denied credit through a grading process that was devoid of logic or reason. She has not met any standard to challenge the test results.

13. The Petitioner did not present any persuasive evidence to support her answer to examination Question 68. To the contrary, the persuasive evidence established that the Petitioner's answer was not related to the statement nor could it reasonably be confused with the correct answer. That neither term was included in the glossary of the Petitioner's text does not mean the Respondent acted arbitrarily or capriciously in the administration of the test, the scoring of the results, or the points awarded to the Petitioner.

14. Based upon the evidence submitted by the Respondent, it is clear that materials approved by the agency support the correct answer. That the answer was not included in the text's glossary does not render the testing process flawed. Sixty-two percent of the persons taking the test who passed

achieved a correct answer on the disputed question. Forty- seven percent of all applicants taking the examination with the Petitioner chose the correct answer. Thus, there is no basis from which it could be concluded that the question was either factually flawed or capricious.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order that affirms the examination results for the Petitioner and dismisses the challenge to the test results.

DONE AND ENTERED this 27th day of April 2004, in Tallahassee, Leon County, Florida.

S

___________________________________

J. D. Parrish Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2004.

COPIES FURNISHED:

Juana C. Watkins Acting Director Division of Real Estate Department of Business and

Professional Regulation Hurston Building North Tower Suite 802 North

400 West Robinson Street Orlando, Florida 32801

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Charles F. Tunnicliff, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Antonella DiBella

17216 Newport Club Drive Boca Raton, Florida 33496

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 03-004603

Orders for Case No: 03-004603