STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-2885

)

MICHAEL B. LIMANTI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Palatka, Florida, on September 24, 1997, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

For Respondent: Michael B. Limanti, Pro se

807 St. Johns Avenue Palatka, Florida 32177

STATEMENT OF THE ISSUE

The issue is whether the Respondent's Florida Appraisal License should be disciplined upon the charge that the Respondent performed appraisal services in a careless or negligent manner in violation of Uniform Standards of Professional Appraisal Practice, Rule 1-l(c), Florida Administrative Code, and in violation of Subsection 475.624(14), Florida Statutes.

PRELIMINARY STATEMENT

The Petitioner filed an Administrative Complaint on January 27, 1997, alleging that the Respondent violated Subsection 475.624(14), Florida Statutes. The Respondent disputed the allegations in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings on June 12, 1997. The case was noticed for hearing on September 24, 1997, by notice dated July 16, 1997, and was heard as noticed.

At the formal hearing the Petitioner presented the testimony of Carol Scherer, Doug Cutts, and Carla Rogers, an investigator for the Department. The Respondent did not testify and did not present any witnesses in his own behalf. The Petitioner and Respondent stipulated to the admission of eight (8) exhibits, which were received into evidence.

FINDINGS OF FACT

1. The Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to Florida Statutes.

   
   

2. The Respondent, Michael B. Limanti, is now and was at all times material to the Administrative Complaint, a State Certified General Real Estate Appraiser having been issued license number RZ000708, in accordance with Chapter 475, Florida Statutes.

   
   

3. The last license issued to the Petitioner as a State Certified General Real Estate Appraiser listed his address as 807 St. Johns Avenue, Palatka, Florida 32177.

   
   

4. On or about March 26, 1996, the Respondent conducted an appraisal of residential property owned by John and Carol Sherer for a fee of Three Hundred Dollars ($300.00), paid by the Sherers.

   
   

5. The Respondent's residential appraisal report, which was received as Exhibit 1, indicated that the real property being appraised was located at 115 Shoreside Trail, in Crescent City, and estimated the market value of the real property at Fifty-Three Thousand Five Hundred Dollars ($53,500.00).

   
   

6. The appraisal report contained the following factual assertions which were the subject of the controversy concerning the descriptions of the subject property:

   
   

   1. A private road adjoining the property was marked as being public on the appraisal form. There were no notes in the comments about the road. The road was a private road with a public easement. There was no clear evidence of the road's status. The appraisal form

      specifically referenced paragraph six of the form, which is a general disclaimer provision.

      
      

   2. The age of the house was stated as an effective age of twenty (20) years. The house was built in 1979. The appraisal was in 1996. The effective age of the house takes into consideration maintenance and other conditions. Another appraiser appraised the house subsequent to the Respondent's appraisal. The opinion of the Department's expert at hearing is that the age of the house was not inordinately different from the Respondent's opinion, and was not a major factor.

      
      

   3. The Petitioner's appraisal report contained several

      mix-statements regarding the characteristics of the house. The full bathroom was mix-characterized as .75 of a bathroom. The floors of the house were erroneously indicated as being carpeted, when in fact they were vinyl tile at the time of the appraisal. The walls were characterized as sheet rock, when in fact they were wooden paneling. The appraisal also referenced a scuttle hole, which does not exist. The Department's investigator interviewed the Respondent who stated that he had made a mistake in entering data from his notes regarding the property. However, the Respondent felt that the errors were inconsequential and did not affect the value of the property. The Department's expert opined that the aforementioned errors indicated carelessness; however, the Department's expert agreed that they did not impact the ultimate value of the property.

      
      

   4. The photographs, purportedly of the subject property, were identified by the owner and the Department's expert as not being of the lakefront on the subject property.

      
      

   5. The Department's expert opined that the difference in square footage of the Respondent's appraisal and the second appraisal was negligible and within limits.

      
      

7. The principal objection of the Department's expert was to the location of the properties selected as comparables. One of the properties was on a smaller lake, another on a larger lake, and the third on a canal adjoining the St. Johns River. However, in each instance the price of the other properties has been adjusted by Respondent with regard to the site location.

   
   

8. Upon cross-examination, the Department's expert indicated that there were few sales of property due to a depressed market at the time the appraisal was conducted and there were a limited number of "comparables" from which to select.

   
   

9. The Department's expert was most concerned about the Respondent's choice of comparable sales which the expert felt were inappropriate.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. This Order is entered pursuant to Section 120.57(1), Florida Statutes.

    
    

11. Florida Real Estate Appraisal Board may reprimand, fine, revoke, or suspend a license if it finds that the licensee has violated Subsection 475.624(14), Florida Statutes.

    
    

12. The burden of proof is upon the Petitioner to prove the allegations of the Administrative Complaint. See Milano v. Department of Health and Rehabilitative Services, 348 So. 2d 349(Fla. 15 DCA 1977).

    
    

13. Where the disciplined proposed does not involve the loss of licensure, the appraiser's guilt need be established only by preponderance of the evidence. See Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Flat ad DCA 1990).

    
    

14. Evidence in this case shows the Respondent prepared an appraisal report on behalf of the Sherers. The Administrative Complaint alleges that the report is in error and is inaccurate, and the Respondent violated Section 475.624(14), Florida Statutes, by being negligent. Each of the Department's allegations will be discussed.

    
    

15. The allegation that the Petitioner mix-characterized the adjoining road is not proven because the road is of a public nature. There is an easement for public use on the road. The provisions of paragraph six, conditions that the appraiser provide that the report does not reveal and consider information not obvious, or information which would not be discovered in a normal investigation of information surrounding the property. There is no carelessness regarding the allegation.

    
    

16. The Respondent's characterization of the effective age of the house as twenty (20) years, is not substantially different from the age assigned by the second appraiser. This allegation is not proven.

    
    

17. The series of errors regarding the bath, the floor covering, the nature of the walls, the scuttle hole, and the pictures of the lakefront were errors. These errors were characterized by the Respondent as data entry errors. In fact, they appear to be the erroneous entry of data relating to another property being appraised. Although the nature of these errors did not significantly impact the evaluation of the property in the opinion of the Petitioner and the

    Department's expert, they were nonetheless errors and could have had a profound impact.

    
    

18. Regarding the comparables selected by the Respondent, testimony of the Department's expert centered on the poor selection of the comparables by the Respondent. However, the selection of comparables appears to be a matter of art, not science, and the Respondent clearly made adjustments to the evaluations of the comparables in comparing them with the subject property. The evaluation reached by the second appraiser was approximately Sixty- Seven Hundred Dollars ($6,700.00) more than the Respondent's appraisal. The comparables used by the second appraiser, Mr. Probst, used two (2) properties which had two (2) baths and two (2) bedrooms or more. The Respondent used properties, two (2) of which had one

    (1) bath and two (2) bedrooms, and the third which had two (2) baths and two (2) bedrooms. Both appraisers used comparables that were situated on waterfront lots. Both appraisers made appropriate adjustments for the relative size and waterfront footage of the lots. In sum, selection of comparables is a matter of opinion and cannot clearly be said to be an error.

    
    

19. Because the appraisal by the Respondent contains clear errors regarding characteristics of the house to which the Respondent admitted, it is concluded that he violated the standards for appraisal as alleged.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Petitioner enter its Final Order finding Respondent in violation of Section 475.624(14), Florida Statutes, and fine him

$1,000 and place him on probation for one(1) year.

DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 13th day of November, 1997.

ENDNOTE

1/ (b) The general disclaimer provision provides as follows: 6. The appraiser has noted in the appraisal report any adverse conditions (such as, needed repairs, depreciation, the presence of hazardous wastes, toxic substances, etcetera) observed during the inspection of the subject property, or that he or she became aware of during the normal research involved in performing the appraisal. Unless otherwise stated in the appraisal report, the appraiser has no knowledge of any hidden or unapparent condition to the property or adverse environmental conditions (including the presence if hazardous wastes, toxic substances, etcetera) that would make the property more or less valuable, and has assumed that there are no such conditions and makes no guarantees or warranters, expressed or implied, regarding the condition of the property. The appraiser will not be responsible for any such conditions that do exist or for any engineering or testing that might be required to discovery whether such conditions exist. Because the appraiser is not an expert in the field of environmental hazards, the appraisal report must not be considered as an environmental assessment of the property.

COPIES FURNISHED:

Stephen W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Michael B. Limanti, pro se 807 St. Johns Avenue Palatka, Florida 32177

Henry Solares Division Director

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Lynda L. Goodgame, Esquire 1940 North Monroe Street

Tallahassee, Florida 32301

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: 97-002885

Orders for Case No: 97-002885