STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE No. 92-5693

)

DAVID J. ZACHEM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on January 22, 1993, in Tampa, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Professional Regulation Division of Real Estate

400 W. Robinson Street -N308 Post Office Box 1900 Orlando, Florida 32802 1900

For Respondent: William J. Haley, Esquire

BRANNON BROWN HALEY ROBINSON & COLE

Post Office Box 1029

Lake City, Florida 32056 1029 STATEMENT OF THE ISSUES

Whether Respondent's real estate license should be disciplined because he engaged in misrepresentation, concealment, dishonesty and other breaches of trust in a business transaction; operated as a broker without being the holder of a valid and current broker's license; operated as a broker while licensed as a broker/salesperson or operated as a salesperson for a person not registered as his employer and is guilty of collecting money in connection with a real estate transaction in a name other than his employer and without his employer's express consent in violation of Subsections 475.25(1)(a),(b) and (e); 475.42(1)(b) and (d), Florida Statutes

PRELIMINARY STATEMENT

By its Administrative Complaint filed August 21, 1992, Petitioner, Department of Professional Regulation, Division of Real Estate, alleges that

Respondent violated the above referenced statutory provisions and based thereon, Petitioner seeks to discipline Respondent's real estate license.

Respondent has disputed the charges and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

On October 15, 1992, the matter was noticed for hearing for January 22, 1993 and was heard as scheduled. At the outset of the hearing, Petitioner dismissed Count V of the Administrative Complaint.

At the hearing, Petitioner presented the testimony of Henry Mazas and Gary

1. Hall. Petitioner introduced exhibits 1-5 which were received in evidence. Respondent testified on his behalf and presented the testimony of Eugene J. Davidson. Respondent's exhibit 1 was offered and received in evidence. The parties submittted proposed recommended orders which were considered in preparation of this Recommended Order. Proposed findings not incorporated herein are the subject of specific rulings in an Appendix.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules promulgated pursuant thereto.

      
      

   2. Respondent, David J. Zachem, is now, and was at all times material hereto, a licensed real estate broker in Florida, having been issued license number 0194936. The last license issued was as a broker c/o Sunstate Tax Consultants, Inc., 220 East Madison Street #512, Tampa, Florida,

      
      

   3. Respondent, during times material, was licensed as a broker/salesperson with Gary Levone Hall, t/a Gary L. Hall & Associates, 243 Timberland Avenue, Longwood, Florida.

      
      

   4. On or about July 24, 1991, the Resolution Management Associates, Inc. of Atlanta, Georgia, engaged Henry Mazas, the principal of H.R. Mazas & Associates, an accounting firm to perform an appraisal of real property located in Seminole, Florida (called Seminole Landing) which was owned or controlled by the Federal Resolution Trust Corporation, the federally affiliated agency which is selling off failed savings and loan associations financed or mortgaged properties. While Respondent was licensed as a broker/salesperson with Hall, Mazas engaged Respondent to assist in the appraisal of the Seminole Landing property.

      
      

   5. Respondent assisted Mazas by doing what is commonly referred to in the trade as the "leg work" such as visually inspecting the property, reviewing public records, compiling comparables and other raw data which was utilized by Mazas in completing his appraisal.

      
      

   6. Respondent signed on the appraisal letter evidencing his assistance as a consultant who assisted Mazas in completing his appraisal.

      
      

   7. C.W. Marlow, contracts manager of Resolution Management Associates, received a bill from Mazas for the appraisal service in the amount of $4,830.00, which amount was paid to Mazas on or about October 29, 1991. Mazas deposited the check into his account and thereafter paid Respondent $2,321.11 via a check

      dated November 5, 1991. On November 8, 1991, Respondent and his wife, Patricia Zachem, endorsed the check for payment.

      
      

   8. At the time that Respondent assisted Mazas in compiling the raw data to complete his appraisal, Mazas was unaware of Respondent's affiliation with Gary Hall.

      
      

   9. Respondent signed off on the appraisal to fully disclose to everyone concerned that he consulted with Mazas in compiling the raw data for the appraisal.

      
      

   10. Gary L. Hall, is a licensed real estate broker since approximately 1982. Hall has known Respondent since 1988. They are friends who assist and consult with each other primarily about political activities.

       
       

   11. Respondent placed his license with Hall as a matter of convenience and was never active in either buying, leasing or selling real property to the public. Respondent and Hall had no agreement respecting the splitting of fees that Respondent would earn for commissions that he received. According to Hall, Respondent "would have been able to keep the entire commissions that he receive for any work that he performed."

       
       

   12. Hall knew that Respondent was active in preparing appraisals when he became affiliated with his agency.

       
       

   13. Respondent is the holder of a real estate salesman's license since 1978 and a broker since 1979.

       
       

   14. Respondent while licensed as a broker, joined the Pinellas County Property Appraiser's Office. Respondent has been employed in two county property appraiser's offices (Broward and Pinellas counties). Respondent was a senior deputy in Broward County with his employment commencing sometime in 1981. He was so employed until January 1989 when he was employed by Pinellas County. In Pinellas County, Respondent was the chief deputy and the chief appraiser.

       
       

   15. Since 1980, Respondent has principally been a "mass appraiser" while working in Broward and Pinellas counties.

       
       

   16. Respondent is the qualifier for Sunstate Tax Consultants, which he is the president.

       
       

   17. Respondent is a Certified Florida Evaluator (CFE). To be qualified as a CFE, one must have worked in a property appraiser's office in the mass appraisal element for a period in excess of two years and have successfully passed four appraisal courses which are designated courses. Specifically, these courses are income to evaluation, the mechanical application of appraisals, appraisal assessment jurisdiction and vacant land. After successfully completing these courses, the property appraiser for whom the applicant is employed writes a letter of recommendation to the certification committee of the Department of Revenue. That committee reviews the applicant's qualifications and either grant or deny the CFE certificate.

       
       

   18. Respondent primarily placed his real estate license with Hall such that he could qualify as an expert in the numerous petitions filed with the Value Adjustment Board where the evaluation of properties are subject to litigation. Those appraisers who have an active broker license is an indication that they are fully qualified in the appraisal and real estate business.

   19. Respondent, as stated, never engaged in the typical brokerage business of buying, selling, leasing or renting property to the public. Specifically, Respondent's understanding with Hall was that if he engaged in any business that was governed by Petitioner, Hall would be notified.

       
       

   20. Respondent was never engaged to conduct an appraisal or to act as an appraiser for Mazas or the Resolution Management Associates. Respondent would have so advised Hall had he been involved in such a relationship or any activity that was governed by Chapter 475, Florida Statutes.

       
       

   21. Eugene Davidson, an ad valorem tax consultant. was tendered and received as an expert appraiser. Davidson was one of three founders that founded the National Society of Fee Appraisers more than 35 years ago. Davidson holds a senior designation as an ASA member. Davidson is a member of the Institute of Real Estate Management and hold the designation as a certified property manager (CPM). Davidson is certified with Florida as a general real estate appraiser. Davidson was a professor at the University of Miami, the University of Florida and in the Bahamas (Nassau and Freeport). Davidson knows Respondent as a person on high morals and integrity and who is knowledgeable in real e stte and appraisinng. Davidson has known Respondent more than twelve years.

       
       

   22. An appraisal is the act or process of estimating value, or an opinion of value.

       
       

   23. Consulting is the act or process of providing information, analysis of real estate data and recommendations or conclusions on diversified problems in real estate other than estimating value.

       
       

   24. Respondent's engagement, to compile raw data, was as a consultant. He was not engaged, nor did he offer an opinion of value or an estimate of value.

       
       

   25. It is normal industry practice for consultants to sign appraisals when they provide or otherwise furnish significant information to the appraiser and, in doing so, complies with standard 2-3 of Chapter 475, Part II. See Sections 475.611 and 475.624, Florida Statutes.

       
       

       CONCLUSIONS OF LAW

       
       

   26. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Subsection 120.57(1), Florida Statutes.

       
       

   27. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

       
       

   28. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

       
       

   29. Section 475.25(1), Florida Statutes, empowers the Petitioner to revoke, suspend, or otherwise discipline the license of a real estate broker/salesperson if found guilty of those enumerated acts listed in Sections 475.25(1)(a)-(q), Florida Statutes.

       
       

   30. Petitioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence.

   31. Petitioner failed to establish, by clear and convincing evidence, that Respondent intentionally concealed from his employing broker that he was engaged as an appraiser or that he received commissions in his status as a licensed real estate salesperson. What the evidence here shows is that Respondent, a person familiar with licensed and unlicensed activity, gathered raw data that was utilized by Mazas in preparing the appraisal report. Respondent was paid for the gathering of the raw data and other information for the appraisal. The estimation or determination of value was completed solely by the entity engaged,

H.R. Mazas & Associates, Inc.

RECOMMENDATION

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

Petitioner enter a Final Order dismissing Counts I-IV of the Administrative Complaint filed herein. 1/

DONE and ORDERED this 31st day of March, 1993, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 31st day of March, 1993.

ENDNOTE

1/ Count V, which was originally an issue, was dismissed at the outset of the hearing.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

Paragraphs 6 and 8, rejected, contrary to the greater weight of evidence, Paragraphs 5,6,9 and 10, Recommended Order.

Rulings on Respondent's Proposed Findings of Fact: Paragraph 3, rejected, not probative.

Paragraph 5, rejected, irrelevant.

Paragraph 6, adopted as modified, Paragraph 9, Recommended Order. Paragraph 15, rejected as statements of opinion and/or argument.

COPIES FURNISHED:

Steven W. Johnson, Esquire DPR - Division of Real Estate

400 West Robinson Street N308 Orlando, Florida 32802

William J. Haley, Esquire BRANNON BROWN HALEY

& ROBINSON

Post Office Box 1029

Lake City, Florida 32056 1029

Darlene F. Keller, Executive Director Florida Real Estate Commission

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

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

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: 92-005693

Orders for Case No: 92-005693