iy, STATE OF FLORIDA fe DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION 14 : by FLORIDA DEPARTMENT OF BUSINESS & aati, 1 PROFESSIONAL REGULATION, FLORIDA REAL ESTATE APPRAISAL BOARD Wisin, Sy, DIVISION OF REAL ESTATE, pL UP SY o “yy -|Q Nga, Petitioner, SORE v. CASE NO. 2007058017 ODALYS A. HERNANDEZ, Respondent. / ADMINISTRATIVE COMPLAINT The Florida Department of Business & Professional Regulation, Division of Real Estate ("Petitioner") files this Administrative Complaint against Odalys A. Hernandez(*Respondent"), and alleges: ESSENTIAL ALLEGATIONS OF MATERIAL FACT 1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, including Section 20.165 and Chapters 120, 455 and 475 of the Florida Statutes, and the rules promulgated thereunder. 2. Respondent is currently a Florida state certified residential real estate appraiaser having been issued license 6643 in accordance with Chapter 475 Part II of the Florida Statutes. 3. The last license the State issued to Respondent was as a state certified residential real estate appraiser at 15091 SW 1g" Terrace, Miami, Florida 33185. H:\FREAB\Hemandez.odalys.doc , 1 FDBPR v. Odalys A. Hernandez Case No. 2007058017 Administrative Complaint 4. On or about July 13, 2007, Odalys A. Hernandez (Respondent) developed and communicated an appraisal report (Report) for property commonly known as 1801 Collins Avenue, #2101, Sunny Isles Beach, Florida 33160(Subject Property), and estimated its value at $1,840,000.00. A copy of the Report is attached hereto and incorporated herein as Administrative Complaint Exhibit 1. 5. Respondent made the following errors and omissions in the Report: A) Failure to verify the correct bathroom count for Subject Property when there is a discrepancy betwéen the work file documents; B) Failure to note or explain listing history for Subject Property, when Subject Property was listed for $1,449,000 on November 20, 2006; reduced to $1,399,000 on January 16, 2007; listed again for $1,760,000 on March 21, 2007; reduced to $1,399,000 on March 23, 2007; reduced again on May 7, 2007 to $1,349,000; then being listed for $1,850,000 on June 29, 2007, fourteen (14)days after going into contract; C) Failure to verify the bathroom count for comparable sale 1 when there is a discrepancy between the work file documents; D) Failure to note that comparable sale 1 faces east and has a direct ocean view as opposed to the Subject Property facing west H:\FREAB\Hernandez.odalys.doc 2 FDBPR v. Odalys A. Hernandez Case No. 2007058017 Administrative Complaint with an intracostal/partial ocean view; E) Failure to make an adjustment or provide an explanation for no adjustment with regard to the direct ocean view on comparable 1; F) Failure to verify the bathroom count for comparable sale 2 when there is a discrepancy between the work file documents; G) Failure to note that comparable sale 2 faces east and has a direct ocean view as opposed to the Subject Property facing west with an intracostal/partial ocean view; H) Failure to make an adjustment or provide an explanation for no adjustment with regard to the direct ocean view on comparable 2; I) Failure to note that comparable sale 3 faces east and has a direct ocean view as opposed to the Subject Property facing west with an intracostal/partial ocean view; J) Failure to make an adjustment or provide an explanation for no adjustment with regard to the direct ocean view on comparable 3; K) Failure to note that comparable sale 4 faces east and has a direct ocean view as opposed to the Subject Property facing west with an intracostal/partial ocean view; L) Failure to make an adjustment or provide an explanation for no adjustment with regard to the direct ocean view on HAFREAB\Hernandez.odalys.doc 3 FDBPR v. Odalys A. Hernandez Case No. 2007058017 Administrative Complaint comparable 4; and M) Failure to use more recent comparables and more similar comparables with equivalent intracoastal/partial ocean views. 7. There is no documentation in the work file to support the HOA monthly assessment for comparable sale 1 in the Sales Comparison section of the Report. 8. There is no documentation in the work file to support the HOA monthly assessment for comparable sale 2 in the Sales Comparison section of the Report. 9. There is no documentation in the work file to support the HOA monthly assessment for comparable sale 4 in the Sales Comparison section of the Report 10. There is no documentation in the work file to support the $40/square foot adjustment made to comparable sale 3 and comparable sale 4 in the Sales Comparison section of the Report. 11. There is no documentation in the work file to support the $5,000 “room count” adjustment made to comparable sale 3 and comparable sale 4 in the Sales Comparison section of the Report. 12. There is no documentation in the work file to support the $60,000 Floor Location adjustment made to comparable sale 1 in the Sales Comparison section of the Report. 13. There is no documentation in the work file to support the $20,000 Floor Location adjustment made to comparable sale 2 in the H:\FREAB\Hernandez.odalys.doc 4 FDBPR v. - Odalys A. Hernandez : Case No. 2007058017 Administrative Complaint Sales Comparison section of the Report. 14. There is no documentation in the work file to support the $40,000 Floor Location adjustment made to comparable sale 3 in the Sales Comparison section of the Report. 15. There is no documentation in the work file to support the $60,000 Floor Location adjustment made to comparable sale 4 in the Sales Comparison section of the Report. 16. There is no documentation in the work file to support the comparable sales offered for sale data in the Sales Comparison section of the Report. 17. There is no documentation in the work file to support the sales in the Subject neighborhood for the past twelve months data in the Sales Comparison section of the Report. A copy of the Work File is attached hereto and incorporated herein as Administrative Complaint Exhibit 1. COUNT ONE Based upon the foregoing, Respondent is guilty of having failed to exercise reasonable diligence in developing an appraisal report in violation of Section 475.624(15), Florida Statutes. COUNT TWO Based upon the foregoing, Respondent is guilty of failure to retain records for at least five years of any contracts engaging the appraiser’s services, appraisal reports, and supporting data H:AFREAB\Hernandez.odalys.doc 5 FDBPR v. Odalys A. Hernandez Case No. 2007058017 Administrative Complaint assembled and formulated by the appraiser in preparing appraisal reports in violation of Section 475.629, Florida Statutes, and, therefore, in violation of Section 475.624(4), Florida Statutes. COUNT THREE Based upon the foregoing, Respondent is guilty of misrepresentation, culpable negligence, or breach of trust in any business transaction in violation of Section 475.624(2), Florida Statutes. COUNT FOUR Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal, specifically the Conduct Section of the Ethics Rule, or other provision of the Uniform Standards of Professional Appraisal Practice (2006) in violation of Section 475.624(14), Florida Statutes. COUNT FIVE Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal, specifically Standards Rule 1-1(a), (b), and (c), or other provision of the Uniform Standards of Professional Appraisal Practice (2006) in violation of Section 475.624(14), Florida Statutes. H:\FREAB\Hernandez.odatys.doc 6 FDBPR v. Odalys A. Hernandez Case No. 2007058017 Administrative Complaint COUNT SIX Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal, specifically Standard Rule 1-4(a), or other provision of the Uniform Standards of Professional Appraisal Practice (2006) in violation of Section 475.624(14), Florida Statutes. COUNT SEVEN Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal, specifically Standard Rule 2-1(a) and (b), or other provision of the Uniform Standards of Professional Appraisal Practice (2006) in violation of Section 475.624(14), Florida Statutes. COUNT EIGHT Based upon the foregoing, Respondent has violated a standard for the development or communication of a real estate appraisal, specifically Standards Rule 2-2(b) (viii), or other provision of the Uniform Standards of Professional Appraisal Practice (2006) in violation of Section 475.624(14), Florida Statutes. WHEREFORE, Petitioner respectfully requests the Florida Real - Estate Appraisal Board, or the Department of Business and Professional Regulation, as may be appropriate, to issue a Final Order as final agency action finding the Respondent(s) guilty as charged. The penalties which may be imposed for violation (s) of H:AFREAB\Herandez.odalys.doc 7 FDBPR v. Odalys A. Hernandez Case No. 2007058017 Administrative Complaint Chapter 475 of the Florida Statutes, depending upon the severity of the offense(s}), include: revocation of the license, registration, or certificate; suspension of the license, registration or certificate for a period not to exceed ten (10) years; imposition of an administrative fine of up to $5,000 for each count or offense; imposition of investigative costs; issuance of a reprimand; imposition of probation subject to terms including, but not limited to, requiring the licensee, registrant, or certificate holder to complete and pass additional appraisal education courses; publication, or any combination of the foregoing which may apply. See Section 475.624, Florida Statutes and Rule 61J1-8.002, Florida Administrative Code. The penalties which may be imposed for violation(s) of Chapter 455 of the Florida Statutes, depending upon the severity of the offense(s), include: revocation of the license, registration, or certificate; suspension of the license, registration, or certificate for a period not to exceed ten (10) years; imposition of an administrative fine of up to $5,000 for each count or offense; imposition of investigative costs; issuance of a reprimand; imposition of probation subject to terms including, but not limited to, requiring the licensee, registrant, or certificate holder to complete and pass additional appraisal education courses; publication; restriction of practice; injunctive HAFREAB\Hemandez.odalys.doc 8 FDBPR v. Odalys A. Hernandez Case No. 2007058017 Administrative Complaint or mandamus relief; imposition of a cease and desist order; or any combination of the foregoing which may apply. See Section 455.227, Fla. Statutes and Florida Administrative Code Rule 61J1-8.002. SIGNED this \ day of , 2008. Florida Department of Bu s and Professional Regulation Thomas O’Bryant, Jr., Director, Division of Real Estate “0 oe ca “ eeeeerent of Professional - Division of Real Esta (er Robert Minarcin Senior Attorney Fla. Bar No. 163147 Division of Real Estate Legal Section 400 W. Robinson Street, N801 Orlando, Florida 32801-1757 (407) 481-5632 (407) 317-7260 - FAX PCP: MR/CK 8/08 NOTICE TO RESPONDENTS PLEASE BE ADVISED that mediation under Section 120.573 of the Florida Statutes, is not available for administrative disputes involving this type of agency action. H:AFREAB\Hernandez.odalys.doc. 9 FDBPR v. Odalys A. Hernandez Case No. 2007058017 Administrative Complaint PLEASE BE FURTHER ADVISED that pursuant to this Administrative Complaint you may request, within the time allowed by law, a hearing to be conducted in this matter in accordance with Sections 120.569 and 120.57 of the Florida Statutes; that you have the right, at your option and expense, to be represented by counsel or other qualified representative in this matter; and that you have the right, at your option and expense, to take testimony, to call and cross-examine witnesses, and to have subpoena and subpoena duces tecum issued on your behalf if a formal hearing is requested. PLEASE BE FURTHER ADVISED that if you do not file an Election of Rights form or some other responsive pleading with the Petitioner within twenty-one (21) days of receipt of this Administrative Complaint, the Petitioner will file with the Florida Real Estate Appraisal Board a motion requesting an informal hearing and entry of an appropriate Final Order which may result in the suspension or revocation of your real estate license or registration. Please see the enclosed Explanation of Rights and Election of Rights form. H:\FREAB\Hernandez.odalys.doc 10 APPRAISAL OF REAL PROPERTY LOCATED AT: 18101 Collins Ave Sunny Isles Beach, FL. 33160-3468 Trump Palace Condo Unit Spa 201 Undiv 0.4283% Int In Common Elements FOR: Washington Mutual Bank AS OF: 07/17/2007 BY: Odalys AHemandex St. Cart. Res. Appr RD 6843 (es Form GAZ LT — “WinTOTAL’ appraisal software by ala mode, inc. — 1-800-ALAMODE AUMINISTRATIVE COMPLAINT. EXHIBIT # / PAGE ! OF | / / 4) PAGE 12/28" RCVD AT 8/2/2007 2:54:44 PH [Pacific Dayfight Time] * SVR:CB-OCRFAXO 6 * DNIS:572? * CSID:#4087331008 * DURATION (mim-ss):16:50 Odalys A. Hernandez INVOICE exceliine Agpretsats Garp, 18097 SW 718th Terrace, Mam Pl 37165 Phare: (305) 862-4907 Fax: (305) 402-0697 @-mail codatyehdaxsppriibaileouth.nat REFERENCE OH008-0707 intemal Order #: ‘Lender Case a Cllent Fite #: Main Fle # on fore: OH008-0707 Other File # on form: Federal Tax D: Employer 10: 26-0435280 Fex Number: E-lait: mmpastor@baltsouth.net Telephone Number: (788) 280 8010 Altemete Number: Lender. Washington Mutual Bank Purchaser /Borrower: Jorge |_Ojeda Property Address: 18101 Collins Ave City: Sunny Isles Beach County: Miami- Dade State: FL Legal Description: Trump Patace Condo Unit Spa 201 Undiv 0.4293% Int In Common Elements. Client: Washington Mutual Bank Zip: 33160-3469 Description: Date: Description: Date: Deacription: Prozse Retira The Portion wtin Your Paymont FROM: AMOUNT DUE: AMOUNT ENCLOSED: s Washington Mutual Bank { OH008-0707 2 Lo DATE: Telephone Number: (786) 290 8010 Fax Number: TINT7A2007 ‘Afternate Number: Etat! mmpastor@betlgouth.net Internal Order #: OHG06-0707 To: | Lender ase #: Excetience Appraisals Corp. Client File # 15091 SW 18th Terrace Main File # on form: = OHO08-0707 Miami, FL 33185 Other Fle # on form: Ph: (305) 962-4907 Fax (306) 462-0491 " e-mat : odalyshdezappr@betlsouth.net Fecal TexiD: © 26-0435290 | Employer (0: PAGE 13/29 *RCVD AT 81212007 2:54:14 PM [Pacific Daylight Tne *S¥R:C8-OCRFALOY6*NS:5727° CSD ARMRSN GRE DURATION ns): Fo Form Nive — “WinTOTAL~ appralsal software by 2 1a mad, Inc. Pw Ley Ee exHipiT #_| nd Odalys A. Hernandez is. Na. O008-17071 Pane #2) Individual Condominium Unit Appraisal Report Fle # OHO08-0707 The purpose of this summary appraisal report ts to provide tha lender/clant with an accurate, and Supported, apinjon of the marke value of the subj Property Address 418101 Collins Ave Unt # 2101 Cily Sunny Isles Beach Stata FL ZipCode 33160-3469 Borrower Jorge t.Ojeda Owner of Public Record OG 1701 LLC County Miami-Dade tion_Trump Palace Condo Unit Spa 201 Undiv 0.4293% int in Common Elamants Assossor's Parca # 31-2211-073-0170 Tax Year_ 2008 RE Taves $ NIA Project Name__Trump Palace Condo Phase # 1 Map Reference T-52R-42S-11_Cansus Tract 0001.15. Occupant) Owner [] Tenant £_) Vacant Special Assessmarts $ N/A HOAS 1,535.0 ¢_ Dd) per month Property Rights Appraised Dx] Fee Simole { } Leasehold (77 Other (describe) Ass Typs DX] Purchase Transaction [ } Refinance Transaction [] Other (describe) LendevCliet Wastin Mutual Bank Address {5 the subject property currently offered for sale ar has & been alfered far sale in the twelve months prlor to the effective date of this a, eal? Yes No. data source(s) used, offering price(s), and date(s). MLXChange, Appratsat Request & Residential Sales & Purchase Contract’ Offering price: $1,850 000 § GQ aid (2) oid not analyze tha contract for sale for the subjact purchase transaction. Explain the results af the analysis af the contract for sala or why the analysis was nat performed. After reviewing the contract, the purchase appears ta be an arm's length transaction. The subject property Is under contract _for $1,850,000 4 Conbact Price § 1,850,000 Date of Contract 06/15/2007 _ ts tho praporty salir the owner of pubic rocad? Gives {_]No Data Souce(s) 1SC Net’ Tax Roll EA |s thare any financial assistance (loan changes, sale concessions, gift of downpayment assistance, ett.) to be pald by any party on behall of the horrawer? CI ves Gg x0 J if Yes, report the total doltar amount and describe the toms to be paid, None Known As per Contract, there is not any financial assistance to be paid by any party on behalf of the bomower. Note: Race and the rectal compoattion of the neighbarhocd are not. eal factors. “Neighborhood Characteriatiog ~_ Condominkan Unit Housing Trends Condominkam Presont Land Use % Locatton [XJ Urban [7] Suburban [] Rural Property Values [J incrpasing [