STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 85-2056

) LYNDZL GALE GOODWIN AND FLORIDA ) APPRAISAL DEPARTMENT, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final bearing was held in Fort Lauderdale, Florida on October 24. 1985 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings.

For Petitioner: Arthur R Shell, Esquire

400 West Robinson Street 0rlando, Florida 32801

For Respondent: Donald K. Corbin, Esquire

727 North East Third Avenue Suite 30l

Ft. Lauderdale, Florida 33304

The Department of Professional Regulation, Petitioner, has filed an Administrative Complaint charging Lyndel Gale Goodwin and Florida Appraisal Department, Inc., Respondents, with a violation of Section 475.25(1)(b), Florida Statutes, for acts arising out of an appraisal of certain property in Marathon, Florida in March 1984. At the hearing, Petitioner introduced six (6) exhibits and called four (4) witnesses to testify, and Respondents introduced two (2) exhibits and called four (4) witnesses in addition to Lyndel Gale Goodwin testifying on his own behalf. A transcript of the hearing was filed on November 6, 1985 and by agreement of the parties fifteen (15) days were allowed for filing proposed recommended orders. A

ruling on each proposed finding of fact that has been timely filed has been made in this Recommended Order as reflected in the attached Appendix.

At the conclusion of Petitioner's. case in chief, Respondents moved to dismiss the charges, and ruling on the motion we. reserved to allow a review of the evidence presented and to incorporate a ruling thereon in this Recommended order. Respondents' motion is hereby dented for the reasons set forth below.

FINDINGS OF FACT

1. Respondent Lynde1 Gale Goodwin is a licensed real estate broker with license number 0032681 Respondent Florida Appraisal Department, Inc., is a corporation licensed as a broker having been issued license number 0233195. Goodwin's last license was issued as a broker c/o Florida Appraisal Department, Inc., at 2990 North Federal Highway, Ft Lauderdale, Florida 33306 which is the business address of Florida Appraisal Department, Inc.

   
   

2. Respondent Goodwin was operating as a real estate broker and as sole qualifying broker and officer of Florida Appraisal Department, Inc., at all times material hereto.

   
   

3. On or about March 21, l984 an appraisal on certain real property owned by Robert and Martha Silva, located at 633 Lime Lane, Marathon, Florida was completed and submitted to Government Employees Corporation on behalf of Respondents by Charles Stange, an associate of Respondent Goodwin. At the time Stange held a real estate salesman's license, was receiving training from Goodwin on appraising and was also investing in Florida Appraisa1 Department, Inc.

   
   

4. Stange bad been assigned the Silva appraisal by Respondent Goodwin, who accompanied him on a trip to Marathon to inspect the property and to locate comparable properties on which to base the appraisal. When they arrived in Marathon, Stange initially dropped Goodwin off so he could take care of some other business, and Stange proceeded to the Silva property, entered the house, drew a sketch. took picture6 and also attempted to locate three comparables. After completing his business, Goodwin joined Stange and assisted with the measurement of the Silva property.

5. When they returned to their offices at Florida Appraisal Department, Inc , Stange prepared a draft of the appraisal report on the Silva property. When Respondent Goodwin reviewed this draft, he noted a problem with two of the comparables and instructed Stange to get two more comparables since the ones he had chosen were not suitable.

   
   

6. Stange objected to having to locate two more comparables because it meant having to make another trip to Marathon. He did not return to Marathon, but redrafted the appraisal using falsified comparables. The addresses he used included what was, in fact, a trailer park and a non-existent address. He also showed the source of these comparables as "Realtron" which is a computerized multiple listing service that does not even serve Marathon.

   
   

7. The falsified appraisal was submitted to Government Employees Corporation on or about March 21, 1984 over Respondent Goodwin's signature, and based thereon a loan was approved.

   
   

8. Respondent Goodwin does not remember signing the Silva appraisal and disputes the signature appearing thereon as being his. However, after weighing all the evidence and demeanor of the witnesses, it appears that Stange simply changed the information on two of the Silva comparables to satisfy Goodwin's concerns, and presented the redrafted appraisal to Goodwin who assumed, but did not check, that Stange had return d to Marathon to obtain the corrected comparable data. Goodwin thereupon signed the Silva appraisal and it was submitted to Government Employees Corporation. Stange and Goodwin split a $150 fee for this appraisal.

   
   

9. Respondent Goodwin does not routinely follow up on appraisal he has assigned to others to perform even though some of those appraisals are sent out over his signature. He has no way of knowing if an appraisal is overdue, other than by the person who ordered it calling to ask about the status. Florida Appraisal Department, Inc., does over 1,000 appraisals a year and employs seven licensees and two clericals.

   
   

10. The Silva appraisal report misrepresented that the subject property had been analyzed with reference to single family residential property in the area that had been sold in the last six (6) months. It further misrepresented two of the comparables, one of which was non-existent and the other of which was a trailer park. Finally, the appraisal misrepresented

    the source of the comparables by indicating "Realtron" which in fact does not serve the Marathon area.

    
    

11. Government Employees Corporation required Respondent Goodwin's signature to appear on all appraisals it ordered from Florida Appraisa1 Department, Inc.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. Section 475.25(1)(b), Florida Statues, provides that the Florida Real Estate Commission may discipline a licensee who has been guilty of misrepresentation, culpable negligence or a breach of trust in any business transaction, or who has aided, assisted, or conspired with another person engaged in such misconduct.

    
    

13. The burden of proof in this cave is on Petitioner. Balino v Department of Health and Rehabilitative Services, 348 So 2d 349 (F1a. 1st DCA 1977). Since this action is penal in nature, involving the possible suspension or revocation of Respondents' licenses, Petitioner's burden is to prove the violations charged by clear and convincing evidence. State ex rel. Vining v. Florida Real estate Commission, 281 So. 2d 487 (Fla. 1973); Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). This is a higher burden than a simple preponderance due to the nature of the action and the possible penalty that could be imposed.

    
    

14. Petitioner has met its burden of proof, and has clearly and convincingly established that Respondents' actions involving the Silva appraisal constitute misrepresentation and culpable negligence due to the complete failure to follow up on, review and confirm the accuracy of the work done on their behalf by Stange. This failure also constitutes a breach of trust that Respondents owed to Government Employees Corporation who were approving a loan application based on this appraisal which they ordered from Florida Appraisal Department, Inc. Finally, their failure and negligence aided and assisted Stange to falsify and misrepresent comparable information on the Silva appraisal.

    
    

15. Regarding the penalty to be imposed in this case, there is no evidence that Respondents repeatedly engaged in a course of conduct that would justify the penalty of revocation of their licenses. Pauline v. Borer, 274 so. 2d 1 (Fla. 1973); Kopt v. Florida Real Estate Commission, 379 So. 2d 1327 (Fla. 3d

DCA 1980). Therefore, a reasonable suspension of Respondents' licenses is appropriate in this case.

Based on the foregoing, it is recommended that a Final Order be issued suspending each of Respondents' licenses for a period of thirty (30) days.

DONE AND ENTERED this 6th day of December, 1985 at Tallahassee, Florida.

DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apa1achee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1985.

COPIES FURNISHED:

Arthur R. 8hell, Esquire Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Donald X. Corbin, Esquire 727 North East Third Avenue Suite 301

Pt. Lauderdale, Florida 33304

Harold Buff Executive Director

Division of Real Estate

400 West Robinson Orlando, Florida 32801

Salvatore Carpino General Counsel

Department of Professional Regulation

130 N. Monroe Street

Tallahassee, Florida 32301

Fred Rocbe, Secretary Department of Professional

Regulation

Tallahassee, Florida 32301

Docket for Case No: 85-002056

Orders for Case No: 85-002056