The Issue Whether Petitioner is entitled to additional credit for his responses to Questions 23 and 27 of the Contract Administration section of the General Contractor licensure examination administered in July 1996, and, if so, whether the additional credit would give him a passing grade. Whether Petitioner is entitled to additional credit for his responses to Questions 11, 23, and 35 of the Contract Administration section of the General Contractor licensure examination administered in April 1997 and, if so, whether the additional credit would give him a passing grade.
Findings Of Fact Petitioner took the Contract Administration section of the General Contractor’s licensure examination in July 1996 and in April 1997. Between the two exams, Petitioner passed all sections of the examination except the Contract Administration section. Petitioner’s score on the Contract Administration section of the July 1996 examination, as graded by Respondent’s Bureau of Testing, was 65. His score on the Contract Administration section of the April 1997 examination was 67.5. For both examinations, there were 40 questions on the Contract Administration section. A candidate had to achieve a score of 70 to pass that section of the examination. Because each question was equally weighted, a candidate would have to correctly answer 28 questions to earn the passing score. All questions challenged by Petitioner were multiple- choice questions where the candidate was instructed to give the best answer from four possible choices. Prior to the examinations, the candidates were given a list of approved reference materials. The candidates were permitted to refer to those reference materials while taking the examinations. Respondent’s score of 65 on the July 1996 examination was based on the Bureau of Testing’s determination that Petitioner correctly answered 26 of the 40 questions. To earn a passing grade on the Contract Administration section of the July 1996 examination, Petitioner would have to receive credit for correctly answering two additional questions. His score of 67.5 on the April 1997 was based on the determination that he correctly answered 27 of the 40 questions. To earn a passing grade on the Contract Administration section of the April 1997 examination, Petitioner would have to receive credit for correctly answering one additional question. QUESTION 23 OF THE JULY 1996 EXAM The correct answer for Question 23 of the July examination is choice “D.” Of the four possible responses, choice “D” is the best answer to the question. Petitioner’s answer to this question was choice “A.” Petitioner did not receive credit for his response to this question because he did not select the best answer. The answer selected by Petitioner would not be the most accurate and cost-effective because the methodology he selected would not detect errors made by the first person performing the computations. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 23 of the July 1996 exam. QUESTION 27 OF THE JULY 1996 EXAM The correct answer for Question 27 of the July examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “B.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 27 of the July 1996 exam. QUESTION 11 OF THE APRIL 1997 EXAM The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam. QUESTION 23 OF THE APRIL 1997 EXAM The best answer for Question 23 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “A.” While there is some support in the reference material for Petitioner's answer, the greater weight of the evidence established that his choice was not the best answer. Petitioner did not receive credit for his response to this question because he did not select the best answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 23 of the April 1997 exam. QUESTION 35 OF THE APRIL 1997 EXAM The correct answer for Question 11 of the April 1997 examination is choice “C.” This correct answer is supported by reference materials made available to all candidates. Petitioner’s answer to this question was choice “D.” Petitioner did not receive credit for his response to this question because he did not select the correct answer to the question. The challenged question is a question that a candidate for licensure should be able to answer. The challenged question is not beyond the scope of knowledge that a candidate for licensure should have. The challenged question is not ambiguous. Petitioner is not entitled to additional credit for his response to Question 11 of the April 1997 exam.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that dismisses the challenges brought by Petitioner to Questions 23 and 27 on the July 1996 exam and to Questions 11, 23, and 35 of the April 1997 exam. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Kenneth Marshall 624 Southwest 11th Court Fort Lauderdale, Florida 33315 John Preston Seiler, Esquire 2900 East Oakland Park Boulevard, No. 200 Fort Lauderdale, Florida 33306 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact The Respondent entered into a contract with Anthony Cocco and his wife in August of 1977, to construct a single-family residence. By June of 1978, work on the project had virtually ceased, although Respondent caused some landscaping work to be done after that date. In October, 1978, Respondent gave notice to Cocco of a default on the contract. This led to civil litigation on the contract between the parties which was unresolved at the time of the subject hearing. Respondent was licensed as a residential contractor in 1970. See Petitioner's Exhibit #1. The Respondent was also licensed at the time of the hearing. See Petitioner's Exhibit #2. No evidence was received that the Respondent was licensed at any time between the date he entered into the contract with Cocco and the date that Respondent gave notice of default. Regarding the Respondent's licensure between August of 1977, and October, 1978, the only evidence received was the Petitioner's Exhibit #2, which states in pertinent part: ... Said licensee was licensed September 1970 and has been current for all years licensed.
Recommendation Therefore, based on the foregoing Findings of Fact and Conclusions of Law, the Respondent's Motion for Directed Verdict is granted, and it is recommended that this cause be dismissed. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1982. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Jane E. Heerema, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 George E. Tragos, Esquire 487 Mandalay Avenue Clearwater Beach, Florida 33515 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division), for the Florida Real Estate Commission, was the state agency responsible for the licensing of real estate professionals and the regulation of the real estate profession in Florida. Respondent was licensed as a real estate salesperson or broker in Florida. During pertinent portions of 1990, Respondent was licensed both as a real estate broker by the Division, and as a contractor by the Construction Industry Licensing Board of the State of Florida. During that period he handled numerous sales of real property for the United States Veterans Administration and received deposits of funds on those sales which he placed in his brokerage trust account with First Commercial Bank of Manatee County. At that time, the bank had a policy on availability of funds of seven business days for out-of- town checks and three business days for local checks. In January 1990, Respondent wrote five checks from his trust account, each in excess of $1,000.00. Three of these were to the VA for sales deposits, and two were to others. All five checks were dishonored for insufficient funds. Thereafter, on August 24, 1990, the Division filed an Administrative Complaint against the Respondent alleging the utterance of dishonored checks as misconduct. Respondent, at an informal hearing, admitted the utterance of the dishonored checks, and as a result, the Florida Real Estate Commission revoked his broker's license on October 16, 1990. Respondent's subsequent appeal of that action to the Second District Court of Appeal resulted in a per curiam denial of his petition for review. Sometime later, in 1991, Respondent appealed to the Commission for reinstatement. At a subsequent hearing before the Commission, an exculpatory letter of explanation from Respondent's accountant resulted in the Commission allowing Respondent to sit for the salesman's examination, as a result of which he was subsequently licensed as a salesman. Respondent was thereafter again licensed as a broker on December 6, 1993. In the interim, however, on June 4, 1992, Respondent's contractor's license was disciplined by the Construction Industry Licensing Board for misconduct involving his failure to properly supervise a construction project and allowing an unlicensed individual to do the work on a project for which he had pulled the permit. An informal hearing was held by the Board as a result of which it imposed an administrative fine of $2,000.00, and to assure the payment thereof, provided for suspension of Respondent's license if the fine was not paid within thirty days. Respondent admits he did not pay the fine. He contends he called the Board office to inquire what would happen were he not to pay the fine and was advised his license would be suspended. Since Respondent intended to cease working as a contractor anyway, he elected not to pay the fine and sent his license in to the Board. Respondent's contractor's license was suspended on July 22, 1992, though he claims he did not receive a copy of either the Board's Final Order or the notice of the suspension going into effect. Respondent had an obligation to pay the fine imposed as punishment for past misconduct. Voluntary relinquishment of his license, which he thought he could do without effect on him since he was getting out of the construction business, did not excuse his non-payment of the fine. On October 21, 1993, after Respondent's salesman's license had been reinstated, he applied for licensure as a broker, In his answer to the first part of question 13 on the application form, Respondent indicated he had had a license suspended. He noted thereon the prior case against his license by the Commission which dealt with the dishonored checks. He did not, however, list the action taken against his contractor's license. He listed the prior real estate case, he contends, upon the advice of someone in the Division office. He did not, at the time of his call to the Division indicate or inquire about the action taken by the Board on his contractor's license. He claims he did not list that action on the application form because the action taken by the Board was not based on fraud or dishonesty but merely a failure to supervise, and because he did not know his license had been suspended. He thought that voluntarily relinquishing his license ended the situation. Respondent claims he did not intend to conceal any misconduct or adverse action as he could not do so. It was a matter of public record, and he believed the information available to one regulatory board was available to all others that were under the Department. At some point thereafter, not further established, a complaint was filed with the Commission which resulted in the matter being referred to Mr. Pence for investigation. Mr. Pence assembled the documents relating to the allegation of concealment and sent a written notice of his inquiry to the Respondent. Upon receipt of that notice, Respondent telephoned Mr. Pence to discuss the matter. During the ensuing conversation, Pence asked Respondent if he was aware of his suspension by the Construction Board and claims Respondent indicated he was. Respondent allegedly indicated he was under the impression he had been fined by the Board and that the suspension was only to insure the fine was paid. Respondent further indicated that because of the depressed economy and because he was not much interested in keeping his contractor's license he had let it go. In evaluating the evidence presented, it must be noted that the interview between Pence and the Respondent took place about a year ago. Pence's investigative notes are no longer available and he testified from memory. It was evident that much of Mr. Pence's testimony was a reconstruction of how Mr. Pence, in retrospect, felt he would have handled the interview and what he feels sure he would have asked. Taken together, the evidence of record establishes that Respondent was disciplined by the Real Estate Commission for dishonored checks and his license revoked. Though, on the basis of his accountant's exculpatory letter, Respondent was allowed to be re-examined for a salesman's license, that evidence did not completely exonerate the Respondent. This is shown by the fact that the revocation of his broker's license was not reversed. He was merely allowed to reapply for licensure as a salesman. In addition, the accountant's letter does not explain or justify all the bad checks. In regard to the Construction Board's discipline, the evidence shows that Respondent pulled a permit and then allowed a non-licensed individual to do most of the work without proper supervision. Respondent contends that complaint was filed by his friend, the owner of the property, after the project in question was determined to be far more extensive than had been anticipated. The complaint, Respondent asserts, was not made because of any dissatisfaction arising out of his performance, but merely to preserve the owner's interest as to a possible insurance claim. That argument is not persuasive. The fact is that Respondent was disciplined because he had committed an act which authorized the imposition of discipline. His approach to the situation was cavalier, and that approach or attitude continues to raise a substantial question as to his fitness to have entrusted to him the money, property, transactions and rights of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Florida Real Estate Commission enter a Final Order finding Respondent, Warren Up. Box, guilty of Misrepresentation and concealment in his application for a license as a real estate broker in Florida, and of having been twice guilty of misconduct which warrants suspension, and revoking his license as a real estate broker in this state. RECOMMENDED this 9th day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional regulation Division of real Estate Post Office Box 1900 400 West Robinson Street, N-308 Orlando, Florida 32802-1900 Terrence Matthews, Esquire 5190 26th Street West Bradenton, Florida 34207 Lynda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32802-1900
The Issue The central issue in this case is Petitioner's challenge to part III of the licensure examination as set forth in his letter dated September 8, 1994.
Findings Of Fact Petitioner, Robert E. Rosser, is a candidate for licensure as a general contractor. Petitioner has taken the examination to become a licensed general contractor consecutively over the last four years. As a result of the twelve attempts at the examination, Petitioner has passed parts I and II on two separate test dates. In his attempts to pass the examination Petitioner has enrolled in and studied for the examination with two approved construction schools. Petitioner scored a 68 on part III of the general contractor's examination for the June 16, 1994 test date. Petitioner timely challenged questions related to part III (Project Management) of the general contractor's examination given on June 16, 1994. Petitioner attended a review session and claimed that as to question 2 his scratch sheet from the examination demonstrates he had used formulas properly and that he had inadvertently marked the incorrect response on the answer grid sheet. The minimum score required to pass part III of the examination was 70. For each of the challenged questions in part III (2, 4, 7, 9, 11, 17, 18, and 20) Respondent presented competent evidence to support the correct answer as scored by the Department. The Petitioner did not present credible evidence to dispute the accuracy of the answers which had been deemed correct by the Department. Based upon those answers, the Petitioner's score sheet was tabulated correctly. The questions challenged were clearly and unambiguously worded and contained sufficient factual information to reach a correct answer. The examination was open book and applicants were allowed to use reference materials. All current techniques were considered before the correct answer was chosen. All knowledge needed to reach a correct answer was within a candidate's expected range of expertise. The Department's scoring of part III was not arbitrary, capricious, or devoid of logic. For each of the challenged questions, the correct answer was scored at a higher percentage than the answers marked by Petitioner. In fact, for question 4, for example, 79 percent of the examinees scored the correct answer while only 3 percent marked the same answer as Petitioner.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Business and Professional Regulation, Bureau of Testing enter a final order dismissing Petitioner's challenge to the general contractor's examination. DONE AND RECOMMENDED this 23rd day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 23rd day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5214 Rulings on the Petitioner's proposed findings of fact: Petitioner did not number the paragraphs denoted as "STATEMENT OF FACTS AND FINDINGS". The lettered paragraphs are addressed as listed; but where no letter identified the paragraph, the rulings are as to the paragraphs in the order of presentation. Paragraph [A] is accepted. Paragraph [B] is accepted to the extent it identifies Petitioner as a candidate otherwise rejected as not supported by the weight of the credible evidence. Petitioner's citation to Rule 21E-16.005 is an error. It is accepted that the minimum passing grade for the challenged part is 70 percent out of 100 percent. Paragraph [C] is accepted in substance; however, Petitioner's citation to Rule 21E-16.003 is an error. The next paragraph is rejected as contrary to the weight of the credible evidence. The next paragraph is accepted as a correct statement of procedural review. The next paragraph is rejected regarding question 4 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 7 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 9 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 11 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 17 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected as not a statement of fact. Petitioner's scratch sheets have been received as Petitioner's exhibit 1. The next paragraph is rejected regarding question 18 is rejected as not a statement of fact or contrary to the weight of the credible evidence. The next paragraph is rejected regarding question 20 is rejected as not a statement of fact or contrary to the weight of the credible evidence. Paragraph [D] is accepted as statement of procedural information but is not supported by the evidence. Paragraph [E] is accepted as statement of procedural information but is not supported by the evidence. The next paragraph is merely an address for the Department and is not a statement of fact. Paragraph [F] is accepted as statement of procedural information but is irrelevant. Paragraph [G] is accepted as statement of procedural information but is irrelevant. The next paragraph is merely an address for the Division and is not a statement of fact. Paragraph [H] is accepted as statement of procedural information but is irrelevant. Paragraph [I] is accepted as statement of procedural information but is irrelevant. Paragraph [J] is accepted as statement of procedural information but is irrelevant. Paragraph [K] is rejected as contrary to the record in this case since an order of prehearing instruction was not entered in this case and interrogatories were not served. Paragraph [L] is rejected as irrelevant, not a statement of fact, and contrary to the record. Moreover, Petitioner's scratch sheets have been received as Petitioner's exhibit 1. Paragraph [M] is rejected as argument or contrary to the weight of credible evidence. Paragraph [N] is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph [O] is rejected as contrary to the weight of credible evidence. Paragraph [P] is rejected as contrary to the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 4 through 11 are accepted. Paragraph 1 is accepted as statement of procedural information. Paragraph 2 is accepted as to the substance but is not a statement of relevant fact. Paragraph 3 is accepted as to the substance but is not a statement of relevant fact. COPIES FURNISHED: Robert E. Rosser P.O. Box 560541 Miami, Florida 33256-0541 William M. Woodyard Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0750 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Richard Hickok Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-6310
