STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-1713

) ROBERT T. SHARKEY AND APPRAISAL ) ASSOCIATES & CONSULTANTS, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on September 17, 1986, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

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

For Respondent: James G. Kincaid, Esquire

4331 North Federal Highway Fort Lauderdale, Florida 33308

PRELIMINARY STATEMENT

By a nine count administrative complaint Petitioner, Department of Professional Regulation, Division of Real Estate (Department), charged Respondents, Robert T. Sharkey and Appraisal Associates & Consultants, Inc., with violating the provisions of Section 475.25, Florida Statutes. At final hearing Petitioner voluntarily dismissed counts 3, 4, 5, and 6. The remaining counts charge that Respondents induced Elizabeth Townsend and Robert Newman to pay for a real estate appraisal course with false promises of employment, and that Respondents misrepresented the qualifications of Respondent, Robert T. Sharkey, in the conduct of their business.

At final hearing the Department called Daniel L. Amato, Robert Newman, Elizabeth Townsend, Walter A. Maier, Jack Stephens, and James A. Burns, as witnesses. Department exhibit 1, the advertisement appearing at the top of page C of exhibit 2, together with exhibits 3-6, 8, and 10, were received into

evidence. Respondents called no witnesses. Respondents' exhibit 3, consisting of a certified copy of a notice of voluntary dismissal with prejudice and the docket sheet in Case No. 86-353, County Court of Dade County, Florida, was received into evidence.

The transcript of hearing was filed October 24, 1986, and the parties were granted leave through November 3, 1986, within which to file proposed findings of fact and conclusions of law. Respondent elected to file proposed findings of fact, and they have been addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Robert T. Sharkey (Sharkey), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0079702. Sharkey was the qualifying broker of Respondent, Appraisal Associates & Consultants, Inc. (Appraisal Associates), a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0238854.

   
   

   The Real Estate Seminar

   
   

2. In 1985 Respondents placed numerous advertisements in the help wanted section of local newspapers seeking to employ real estate appraisers, experienced or inexperienced, and offering to train the inexperienced. Elizabeth Townsend (Townsend) and Robert Newman (Newman) responded to such advertisements.

   
   

3. The experiences of Ms. Townsend and Mr. Newman, both licensed real estate salespersons, were similar. Upon responding to the advertisement they were advised that a meeting would be held at Appraisal Associates, and the program would be explained. At the meeting, Ms. Townsend and Mr. Newman were advised that Appraisal Associates was conducting a seminar in residential property appraising and that a fee, $150.00 in the case of Ms. Townsend and

   $200.00 in the case of Mr. Newman, would be charged. Each paid their fee and executed a "Seminar Reservation and Employment Conditions" agreement which provided:

   
   

   SATISFACTORY COMPLETION OF THE PRESCRIBED COURSE OF STUDY THE TRAINEE WILL HAVE

   THE OPTION TO PLACE THEIR CURRENT REAL

   ESTATE LICENSE, UPON ACCEPTANCE BY THE MANAGEMENT, WITH APPRAISAL ASSOCIATES ....

   
   

   FOR THE APPRAISER TRAINEE TO OBTAIN EMPLOY- MENT WITH APPRAISAL ASSOCIATES OR ANOTHER ASSIGNED BROKER IN THE FIRM THEY MUST:

   
   

   SATISFACTORILY COMPLETE THE PRESCRIBED SEMINAR AND/OR COMPLETE A WRITTEN EXAM ADMINISTERED BY APPRAISAL ASSOCIATES AND CONSULTANTS, INC.

   
   

   2 COMPLETE SATISFACTORILY AT LEAST FIVE SINGLE FAMILY RESIDENTIAL DEMONSTRATION REPORTS.

   1. HAVE A CURRENT FLORIDA REAL ESTATE LICENSE.

      
      

   2. COMPLETE AN APPLICATION FOR MEMBERSHIP OR DESIGNATION TO ANY APPRAISAL ORGANIZATION

      FOR CANDIDACY OR ASSOCIATE MEMBERSHIP ....

      
      

4. The seminars attended by Ms. Townsend and Mr. Newman were similar.

   Each consisted of 16 hours of class work dedicated to filling out a standardized Fanny Mae form for single family residences, a drive by appraisal of a residential home, and an on site inspection and appraisal of a residential home. While Mr. Newman felt that not enough time was devoted to actual appraising, and Ms. Townsend felt the seminar was terminated prematurely, there was no proof offered that the seminars were not adequate to instruct the participants in the basics of real estate appraisal, or that they were otherwise a sham.

   
   

5. Mr. Newman did not take the final examination, did not complete the five single family residential demonstration reports, and never requested employment with Respondents. Ms. Townsend conceded she was familiar with the requirements for employment and that, while she received a "Certificate of Seminar Completion", she never applied for membership in any appraisal organization and never requested employment with Respondents.

   
   

   Sharkey's Qualifications

   
   

6. At hearing the Department introduced into evidence a document, titled "Qualifications of R. T. Sharkey, MRA, CRA", which its investigator had secured from Respondent Sharkey. (Exhibit 6) Pertinent to this case' the document provided:

   
   

   AFFILIATES

   * * *

   AMERICAN RIGHT OF WAY ASSOCIATION

   * * *

   LICENSED REAL ESTATE APPRAISER EXPERIENCE

   * * *

   APPRAISER RIGHT OF WAY CONDEMNATION

   FLORIDA DEPARTMENT OF TRANSPORTATION 1972-1975

   
   

7. The foregoing qualifications attributed to Sharkey are inaccurate, misleading or false. The organization known as the American Right of Way Association has not been known by that name for 3-4 years; the State of Florida does not license real estate appraisers; and Sharkey was never employed by the Florida Department of Transportation as an appraiser for right-of-way condemnation.

   
   

8. While the document included qualifications attributed to Sharkey that were inaccurate, misleading, or false, there was no proof that the document was ever presented to any person in the conduct of Respondents' business, or that any person placed any reliance on such document.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

10. The allegations in this case are that Respondents' conduct violated the provisions of Section 475.25(1)(b), Florida Statutes. Pertinent to this proceeding, that section permits the Department to discipline a licensee who:

    
    

    Has been guilty of fraud, misrepresenta- tion, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation or territory.

    
    

11. The Department failed to establish that Respondents engaged in any conduct which would constitute a violation Section 475.25(1)(b), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That Counts 1, 2, 7, 8, and 9 of the Administrative Complaint be DISMISSED with prejudice.

DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida.

WILLIAM J. KENDRICK

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 10th day of November, 1986.

APPENDIX

Respondents proposed findings of Fact Consisted of 8 unnumbered paragraphs. These paragraphs have been designated paragraphs 1-8, and addressed as follows:

1. Addressed in paragraphs 2-3.

2. Addressed in paragraphs 4.

3. Addressed in paragraphs 4-5.

4. Addressed in paragraphs 4-5.

5. Addressed in paragraphs 4-5.

6. Addressed in paragraphs 3-5.

7. Addressed in paragraphs 6-8.

8. Addressed in paragraphs 6-8.

COPIES FURNISHED:

James H. Gillis, Esquire

Department of Professional Regulation

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

James G. Kincaid, Esquire 4331 North Federal Highway

Fort Lauderdale, Florida 33308

Harold Huff, Executive Director Division of Real Estate/DPR

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

Docket for Case No: 86-001713

Orders for Case No: 86-001713