STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE APPRAISAL ) BOARD, )

)

Petitioner, )

) CASE NO. 95-1303

vs. )

)

MARK D. GENUA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 5, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and Professional Regulation

Division of Real Estate

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

For Respondent: Mark D. Genua, pro se

2437 Navarez Avenue

Safety Harbor, Florida 34695 STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Respondent's license as a real estate appraiser in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint filed December 13, 1994, the Department of Business and Professional Regulation, (Department), on behalf of the Florida Real Estate Appraisal Board, (Board), seeks to discipline Respondent's license as a real estate appraiser in Florida asserting that he violated the standards for the development of a real estate appraisal, and was guilty of misrepresentation, culpable negligence or breach of trust, all in violation of Section 475.624(2), and (14), Florida Statutes. Respondent requested formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of William Podolsky, a certified residential real estate appraiser; Penelope Dewell, a sales associate with a local real estate brokerage; and G.A. Coleman, an investigator with the Florida Real Estate Commission. Petitioner also introduced Petitioner's Exhibits 1 through 7. Respondent testified in his own behalf and presented the testimony of Vilma Levy, an employee of Barnett Bank; and Michael Brown, a sales executive with Strategic Mortgage Services, Inc., (SMS), where Respondent worked as lead appraiser. Respondent also introduced Respondent's Exhibit A.

No transcript was furnished. Subsequent to the hearing, only counsel for Petitioner submitted Proposed Findings of Fact which, except as contradicted in the Findings of Fact herein, are accepted and substantially adopted in this Recommended Order. Respondent did not submit Proposed Findings of Fact. He did, however, file a letter with the Hearing Officer commenting on the evidence, a copy of which letter was also furnished to counsel for Petitioner, and which was considered in the preparation of this Recommended Order though specific rulings thereon are not made.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Florida Real Estate Appraisal Board was and is the state agency responsible for the licensing of real estate appraisers in Florida and for the regulation of the real estate appraisal profession in this state. Respondent was a state certified residential real estate appraiser under license number RI 0000912, who was and still is in practice as a residential appraiser in Safety Harbor, Florida.

   
   

2. On or about April 13, 1994, William Podolsky, Jr., a state certified appraiser employed by SMS, conducted an appraisal on property located at 4934 Bayway Drive, Hillsborough County, incident to a sale of the property. As a part of the addendum to his appraisal report, Mr. Podolsky recommended an inspection of the roof on the property be made to determine its estimated remaining life, but he was unable to do it.

   
   

3. Sometime later, Ms. Levy, an employee of the Barnett Bank, which was i nvolved in the closing on the property, contacted SMS and left a message requesting the property be reappraised to include the roof because Mr. Podolsky, who had done the original appraisal, had not had time to get back and amend the appraisal to include the roof. Ms. Levy's message was given to Respondent when he got to the office about 1:00 PM that day.

   
   

4. Consistent with Ms. Levy's request, Respondent, who was the lead appraiser at SMS, pulled the file on the property and found that Mr. Podolsky had done the original appraisal. Respondent claims he then contacted Mr. Podolsky through his beeper and told him the bank wanted a roof inspection. Mr. Podolsky wanted to know why and asked that Respondent call the bank and clarify the request. When Respondent called the bank he spoke with Ms. Levy who indicated it was because Mr. Podolsky had originally recommended such an inspection.

   
   

5. Respondent asserts he again contacted Mr. Podolsky to report what he had learned. At that time, Podolsky reputedly said he could not do it at that time because he had to take his son to the doctor that afternoon. Respondent claims Podolsky asked him to do it for him. Podolsky claims he merely suggested Respondent get another inspection made. The fact is that Respondent, along with someone else from his office, went out to the property, looked at the roof, and, seeing new shingles, concluded the needed roof repairs had been done. He

   thereupon went back to the office and notified the Barnett Bank representative that the job had been done. He then notified Mr. Podolsky.

   
   

6. Before checking the roof himself, Respondent advised Ms. Levy at Barnett Bank that Mr. Podolsky could not do the reappraisal as quickly as the bank needed it. He asked if the bank had any objection to him doing it and was advised there was none. Ms. Levy, at hearing, confirmed this, indicating she was satisfied that Respondent did the reappraisal and the work he had done was what the bank needed and was satisfactory, and the transaction went successfully to closing. There is no indication any defect was found in the title or the property and no financial loss was incurred by any party because of Respondent's action in issue.

   
   

7. Before leaving, Respondent went to Podolsky's computer terminal and amended the appraisal report which Podolsky had entered into the computer to indicate that the reappraisal had been done. He did not sign his own name to the change and as a result, it appeared as though Podolsky had done the reinspection. This was not so. Respondent did not advise Mr. Podolsky of the computer entry.

   
   

8. Respondent has at no time denied adding the statement regarding the reinspection to Mr. Podolsky's Addendum. He admits he failed to put his own name in the change, utilizing only the term, "appraiser." This was, he claims, an oversight and certainly not an attempt to mislead or confuse anybody.

   
   

9. Nonetheless, when Mr. Podolsky found out that Respondent had made a change to his Addendum and had failed to attribute the change to himself, he reported the matter to his reviewing appraiser and supervisor. Mr. Podolsky was told the complaint would be handled internally and Podolsky was not to discuss it outside the office on pain of discipline. At that point, Mr. Podolsky decided to file a complaint with the Department and did so.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

11. Petitioner has alleged in the Administrative Complaint filed herein that Respondent is guilty of misrepresentation, culpable negligence or breach of trust in a business transaction, in violation of Section 475.624(2), Florida Statutes; and that he violated the standard for the development of or communication of a real estate appraisal and violated the conduct section of the ethics provision of the Uniform Standards of Professional Appraisal Practice, (USPAP), both in violation of 475.624(14), Florida Statutes. Its authority to do so in found in Section 475.624, Florida Statutes which incorporates by reference the standards set out in the USPAP.

    
    

12. The Board seeks in this case to impose discipline which includes only a reprimand and an administrative fine of $500.00. The burden of proof is on the Petitioner to establish the Respondent's guilt of the offenses alleged. Since the proposed discipline does not include either revocation or suspension of Respondent's professional license, Respondent's guilt need be established by only a preponderance of the evidence, not by clear and convincing evidence. Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 2nd DCA 1990).

13. In the instant case, the evidence establishes, and Respondent admits, that Respondent did the supplemental roof evaluation asked for by Barnett Bank, notified the bank that the inspection had been done, and entered that fact into Mr. Podolsky's Addendum without attributing accurately who had done the supplemental appraisal. By merely indicating that the "appraiser" had done it without identifying himself as the individual involved, Respondent did not prepare a clear record of the appraisal/inspection transaction. The appraisal report is of critical importance in real estate transactions and the certified appraiser has a duty to exercise due diligence in the reporting of the appraisal results to concerned parties.

    
    

14. Standards Rule 8-2(n), of the USPAP requires an appraisal report to contain a "signed certification in accordance with Standards Rule 8-2" which guarantees the accuracy and scope of the appraisal. In the instant case Respondent changed an appraisal report written by another appraiser and thereafter neglected to attribute the change to himself

    
    

15. More than one appraiser may sign an appraisal report. It matters not that this was done here without an intent to deceive or mislead. It also matters not that the effect of Respondent's actions resulted in absolutely no harm to the seller, the buyer, the lender or the original appraiser. When Respondent failed to sign his change to another appraiser's appraisal report, even through neglect, it was misleading, and his actions constituted a violation of the USPAP, and, as well, of the statute into which those standards were incorporated by reference.

    
    

16. The penalty proposed by the Board is within the parameters of its rule guidelines and appears appropriate.

RECOMMENDATION

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

RECOMMENDED that Respondent, Mark D. Genua, be found guilty of a culpably negligent violation of the Uniform Standards of Professional Appraisal Practice and, thereby, of Section 475.624, Florida Statutes, and that he be reprimanded and pay an administrative fine of $500.00.

RECOMMENDED this 2nd day of January, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 2nd day of January, 1996.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation Division of Real Estate

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

Mark D. Genua

2437 Navarez Avenue

Safety Harbor, Florida 34695

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Henry M. Solares Division Director Division of Real Estate

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

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-001303

Orders for Case No: 95-001303