STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION )

OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3588

)

PATRICIA ANN WILCOX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on October 11, 1990, in Fort Myers, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Steven W. Johnson

Senior Attorney

Department of Professional Regulation Division of Real Estate

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

For Respondent: Suzanne D. Lanier

GILLETTE, PILON, RICHMAN AND KOWALSKI, P.A.

5801 Pelican Bay Boulevard, Suite 405

Naples, Florida 33963-2740 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent, Patricia Ann Wilcox, is guilty of the violation alleged in the administrative complaint dated May 17, 1990; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on May 17, 1990, when the Department of Professional Regulation, Division of Real Estate (Department) filed an administrative complaint against the Respondent and alleged that she had violated Section 475.25(1)(b), Florida Statutes, and was guilty of misrepresentation, concealment, culpable negligence or breach of trust in a business transaction. The Respondent disputed the allegations of fact and filed an election of rights which requested a formal hearing pursuant to Section 120.57(1), Florida

Statutes. The case was forwarded to the Division of Administrative Hearings for formal proceedings on June 8, 1990.

At the hearing, the Department presented the testimony of Clyde H. Ward, a homeowner who sought a refinanced, fixed rate loan from Goldome Realty Credit Corp.; and John Harris, an investigator employed by the Department. The Department's exhibits marked for identification as Petitioner's 1 through 6 were admitted into evidence. The Respondent testified in her own behalf and presented the testimony of Georgianna Rose, a loan officer employed by Goldome; Keith Taylor, a general contractor familiar with the homes constructed in Lee County; and Chester McKay, the chief appraiser associated with Horizon Appraisal Services, Inc. The deposition testimony of Jane Selph, operations manager for Goldome, and Frank A. Krohe, vice president with Goldome were received at the hearing. The Respondent's exhibits 1 and 2 were admitted into evidence.

After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix. A transcript of the proceedings has not been filed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency authorized to pursue disciplinary actions against real estate licensees.

   
   

2. At all times material to the allegations of this case, the Respondent is and has been licensed as a real estate salesman having been issued license number 0439005.

   
   

3. At all times material to the allegations of this case, the Respondent was employed by Horizon Appraisal Services, Inc. in Fort Myers, Florida, and her primary responsibilities were preparing appraisals for various lending companies that utilized that company's services.

   
   

4. On or about October 5, 1989, Clyde and Marie Ward received a commitment letter from Goldome Realty Credit Corp. which informed the Wards that their application for a mortgage loan had been approved subject to several specific conditions. Among those conditions was the submission of a satisfactory appraisal. This loan was to be at a fixed rate in the principal amount of

   $40,000.00. The purpose of the loan was to allow the Wards to refinance an existing loan on their home which had become due.

   
   

5. Subsequently, Goldome contacted Horizon Appraisal, the Respondent's employer, and the Respondent was requested to perform the appraisal on the Wards' property. In connection with that appraisal, the Respondent went to the Wards' home, made a series of measurements regarding its size and dimensions, photographed the property, and searched records for comparable sales in the vicinity. Upon completion of her efforts, Respondent drafted a uniform residential appraisal report which was delivered to Goldome.

   
   

6. On the front sheet of the appraisal report prepared by Respondent were three typographical errors. Under the heading "Exterior Description" Respondent had mistakenly typed in the blank next to "Manufactured House" the word "Yes." Additionally, under the heading "Foundation" Respondent had typed "no" in the

   blank next to "Slab" and "Yes" in the blank next to "Crawl Space." Based upon the pictures submitted with the appraisal report and the other comments submitted by Respondent, this information was clearly erroneous.

   
   

7. Ultimately, Goldome rejected the Wards' request for the fixed rate loan. That rejection was not due to the errors described in paragraph 6 above. The Wards' property was denied due to the predominate values and uses in its area, the zoning, and the lender's ability to transfer the loan in the secondary market.

   
   

8. Upon being advised that the front page of the appraisal report contained errors, the Respondent submitted a corrected front copy. Those corrections did not alter the appraised value of the Wards' home. Mr. Ward elected to close a variable rate loan with Goldome when the fixed rate option was denied.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 475.25(1)(b), Florida Statutes, provides

    
    

    1. The commission may deny an application licensure, certification, registration, or permit, or renewal thereof; may place a licensee, certified appraiser, registrant, or permittee on probation; may suspend a license, certification, registration, or permit for a period not exceeding 10 years; may revoke a license, certification, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, certified appraiser, registrant, permittee, or applicant:

       * * *

       (b) 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; has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express, or implied, in a real estate transaction; has aided, assisted, or conspired with any other person engaged in such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in any such misconduct and committed an overt act in furtherance of such intent, design, or scheme. . .

11. In this case, the Department has failed to establish that the Respondent committed any misconduct in violation of Section 475.25(1)(b), Florida Statutes. The errors described above and to which Respondent admitted did not result in any damage to the Wards nor the lender. From an examination of the appraisal in its entirety, it is apparent that the Respondent accurately described and evaluated the home within the customary ranges and, therefore, fairly appraised its value. Moreover, the lender verified that the reasons for the Wards' denial were not related to the typographical errors on the front sheet of the appraisal form. While the borrower may have been disappointed that he was unable to obtain the more desirable, fixed rate loan, such failure was not the result of a wrongdoing committed by this Respondent.

RECOMMENDATION

Based on the foregoing, it is recommended that the Florida Real Estate Commission enter a final order dismissing the administrative complaint against the Respondent.

RECOMMENDED this 12th day of December, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3588

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraphs 1 through 4 are accepted.

2. Paragraph 5 is rejected as irrelevant or hearsay not corroborated by direct evidence.

3. With regard to paragraph 6 it is accepted that the Wards' fixed rate loan was denied; otherwise rejected as irrelevant.

4. With regard to paragraph 7 it is accepted that Mr. Ward sought to determine why the fixed rate loan was denied, sought to obtain a copy of the appraisal report, and that the appraisal referred to information which made the property unacceptable to the lender for a fixed rate loan. Otherwise the paragraph is rejected as argumentative or unsupported by the weight of credible evidence.

5. With regard to paragraph 8 it is accepted that the lender offered a variable rate loan to the Wards which they accepted; otherwise rejected as argumentative or unsupported by the weight of credible evidence.

6. Except as to the exact time the appraisal was received by Ward (which is not clearly established by the record), paragraphs 9 and 10 are accepted.

7. Paragraph 11 is rejected as irrelevant; it is accepted that Respondent issued a corrected front page of the appraisal when she was made aware of the errors.

8. Paragraph 12 is accepted but is irrelevant since Respondent has never denied that the typographical errors were committed.

9. Paragraph 13 is rejected as argument, erroneous supposition on Ward's part, or not supported by the weight of credible evidence.

10. Paragraph 14 is rejected as contrary to the weight of the evidence.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1 through 7 are accepted.

2. Paragraph 8 is rejected as irrelevant or argument.

3. Paragraph 9 is accepted.

4. Paragraph 10 is rejected as irrelevant or argument.

5. With regard to paragraph 11 it is accepted that Respondent was employed by Horizon and that the lender contacted Horizon to perform the appraisal for the Wards' property; otherwise rejected as irrelevant, argument, or conclusion of law.

COPIES FURNISHED:

Steven W. Johnson Senior Attorney

Department of Professional Regulation, Division of Real Estate

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

Suzanne D. Lanier GILLETTE, PILON, RICHMAN AND KOWALSKI, P.A.

5801 Pelican Bay Boulevard Suite 405

Naples, Florida 33963-2740

Darlene F. Keller Division Director

Department of Professional Regulation, Division of Real Estate

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

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 90-003588

Orders for Case No: 90-003588