FILED Department of Business arid Professional Regulation Deputy Agency Clerk STATE OF FLORIDA ck Og ‘vette Lawson-Proctor DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULAT] pee 7/24/2014 File # FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Petitioner, Vv. Case No. 2013-033389 DAVID J. SMITH, Respondent. ADMINISTRATIVE COMPLAINT Petitioner, Department Of Business and Professional Regulation (Petitioner) files this Administrative Complaint before the Florida Real Estate Appraisal Board (FREAB), against Respondent, David J. Smith (Respondent), and alleges: 1. Petitioner is the state agency charged with regulating the practice of real estate pursuant to Section 20.165, Florida Statutes, and Chapters 120, 455, and 475 of the Florida Statutes. 2. At all times material to this Complaint, Respondent was licensed as a certified general appraiser in the State of Florida, having been issued license number RZ 2883. 3. Respondent’s address of record is PO Box 987, Tarpon Springs, FL 34688. Filed October 8, 2014 1:28 PM Division of Administrative Hearings 4. Respondent developed and communicated an appraisal report (Report) with an effective date of July 11, 2013, for property located at 2705 Grace St., Tampa FL 33607. 5. Under the Appraiser’s Certification section of the Report with the July 11, 2013, effective date, it states: Item 1, “The statements of fact contained in this report are true and correct.” Item 8, “Unless otherwise noted, the appraiser has made a personal inspection of the property that is the subject of this report.” Item 9, “Unless noted below, no one provided significant real property appraisal assistance to the appraiser signing this certification.” 6. There is nothing noted below the just cited sentences or elsewhere in the report regarding the particular matters they pertain to. 7. In the ADDENDUM section of the instant appraisal under SCOPE OF WORK & APPRAISAL PROCESS it states: “This report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice and in accordance with the regulations required by FIRREA.” 8. In the ADDENDUM section of the instant appraisal under SCOPE OF WORK & APPRAISAL PROCESS, it further states: “In accordance with the competency provision in USPAP, the appraiser certifies that his/her education, experience, and knowledge is sufficient to appraise the type of property being appraised and that no appraiser has provided significant professional assistance to the person inspecting the subject property and in completion of the analyses other that the person(s) named in the report of the appraisers employer.” 9. Jolene Moes and Lillie Moes have provided affidavits to the Department stating in substance that they were eyewitnesses to, and were present for, the entirety of the appraisal inspection of 2705 Grace Street, Tampa, Florida on or about July 11, 2013. Both Jolene Moes and Lillian Moes state that the only person who conducted the appraisal inspection was a person who identified himself as Robert Von Brissenden. Both state they can identify Von Brissenden and have never seen or met David J. Smith. 10. Review of the report fails to disclose the name Robert Von Brissenden, nor any disclosure of the assistance he provided in inspecting the subject property and in completion of the analysis for the report. 11. Von Brissenden’s General Appraiser license was Involuntary Inactive at the time of the appraisal of the subject property. 12. Smith was not there at the time the appraisal inspection of 2705 Grace Street was done, nor did he perform an interior inspection or exterior inspection of the subject property as of the July 11, 2013 effective date of the appraisal. COUNT ONE 13. Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through twelve (12). 14, Section 475.624(2), Florida Statutes, subjects a real estate appraiser licensee to discipline for committing “fraud, misrepresentation, concealment ..false pretenses, dishonest conduct .. or breach of trust in any business transaction .. [or] has aided, assisted, or conspired with any other person engaged in such misconduct and in furtherance thereof...” 15. Respondent Smith violated Section 475.624 (2) by signing and communicating an appraisal report without disclosing the role played by Robert Von Brissenden in preparation of the report and then by Smith certifying, inter alia, that statements of fact in the report are true, that he (Smith) made a personal inspection of the subject property, and that no one provided him (Smith) with 16. 17. 18. 19, significant real property appraisal assistance in preparation of the report. Based on the foregoing, Respondent violated Section 475.624(2), Florida Statutes. COUNT TWO Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through twelve (12). Section 475.624(11), Florida Statutes, subjects a real estate appraiser licensee to discipline for having “made or filed a report or record, either written or oral, that the registered trainee appraiser or licensed or certified appraiser knows to be false ..” Respondent Smith violated Section 475.624(11) by developing and communicating an appraisal report without disclosing the role played by Robert Von Brissenden in preparation of the report and then by Smith certifying, inter alia, that statements of fact in the report are true, that he (Smith) made a personal inspection of the subject property, and that no one provided him (Smith) with significant real property appraisal assistance in preparation of the report. 20. 21. 22. 23. 24. Based on the foregoing, Respondent violated Section 475.624(11), Florida Statutes. COUNT THREE Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through twelve (12). Section 455.227 (1) (m), Florida Statutes, subjects a “ real estate appraiser licensee to discipline for “[m]aking deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession.” Respondent Smith violated Section 455.227 (1) (m) in one or more of the following ways: by developing and communicating an appraisal report without disclosing the role played by Robert Von Brissenden in preparation of the report and then by Smith certifying, inter alia, that statements of fact in the report are true, that he (Smith) made a personal inspection of the subject property, and that no one provided him (Smith) with significant real property appraisal assistance in preparation of the report. Based on the foregoing, Respondent violated Section 455.227 (1) (m), Florida Statutes. 25. 26. 27. 28. 29. COUNT FOUR Petitioner re-alleges and incorporates by reference the allegations set forth in paragraphs one (1) through twelve (12). Section 475.624(4), Florida Statutes, subjects a real estate appraiser to discipline for violating any of the provisions of Chapter 475 or any lawful order or rule made or issued under the provisions of Chapters 455 or 475. Florida Administrative Code Rule 61J1-9.001 (2012) provides that all appraisers “shall comply with the 2012- 2013 Uniform Standards of Professional Appraisal Practice (USPAP), effective January 1, 2012 which is incorporated by reference.” The USPAP (2012-2013) Ethics Rule states: “An appraiser must comply with USPAP when obligated by rule or regulation, or by agreement with the client or intended users.” The Ethics Rule further states: “An appraiser: must not use or communicate a report that is known by the appraiser to be misleading or fraudulent.” In developing and communicating the Subject Report, Respondent Smith violated the USPAP (2012-2013) Ethics Rule in one or more of the following ways: 30. 475, . By failing to disclose that the appraisal inspection of the subject property was done by Von Brissenden, who had no active valid appraisal license at the time. . By failing to disclose that he (Smith) did not perform the inspection of the subject property. . By falsely certifying in the report that the statements contained therein are true and correct. . By falsely certifying in the report that he (Smith) made a personal inspection of the property that was subject of the appraisal report. . By falsely certifying in the report that no one provided significant appraisal assistance to Smith who was the signor of the certification. Based on the foregoing, Respondent violated Section 624(4), Florida Statutes, by failing comply with the Uniform Standards of Professional Appraisal Practice (2012). WHEREFORE, Petitioner respectfully requests the Board of Real Esta following Responden Responden administrative fine, issuance of a reprimand, placement of te Appraisal enter an order imposing one or more of the penalties: permanent revocation or suspension of t’s license, restriction of practice, imposition of an t on probation, assessment of costs, corrective action and/or any other relief that the Board deems appropriate. Signed this 9th day of July , 2014. By: PCP Date: July 9°, 2014 PCP Members: Rogers & McKee KEN LAWSON, Secretary Department of Business and Professional Regulation Daniel A. David Assistant General Counsel Florida Bar No. 0650412 Department of Business and Professional Regulation Division of Real Estate 1940 North Monroe Street Tallahassee, FL 32399 (850) 717-1178 Telephone (850) 921-9186 Facsimile NOTICE OF RIGHTS PLEASE BE ADVISED that mediation under Section 120.573, Florida Statutes, is not available for administrative disputes involving this type of agency action. PLEASE BE FURTHER ADVISED that Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses, and to have subpoenas and subpoenas duces tecum issued on his or her behalf if a hearing is requested. Rule 28-106.111, Florida Administrative Code, provides in part that if Respondent fails to request a hearing within twenty-one (21) days of receipt of an agency pleading, Respondent waives the right to request a hearing on the facts alleged. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 455.227(3) (a), Florida Statutes, the Board, or the Department when there is no Board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time, against the Respondent in addition to any other discipline imposed.

Docket for Case No: 14-004668PL