STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 05-1651PL

)

OMARI MURRAY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on July 14, 2005, in West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alpheus C. Parsons, Esquire

Senior Attorney Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street, Suite N-801 Orlando, Florida 32801

For Respondent: Omari Murray, pro se

201 Southwest Eleventh Avenue Boynton Beach, Florida 33435

STATEMENT OF THE ISSUE

Whether the Respondent, Omari Murray, committed the

violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 21, 2004, the Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department or Petitioner), filed an Administrative Complaint against the Respondent, Omari Murray (Respondent). The Complaint alleged that the Respondent had violated six provisions of the real estate license laws in connection with an appraisal report for an individual named Cesar. More specifically, the Complaint alleged that the Respondent was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, culpable negligence, or breach of trust in any business transaction in violation of Section 475.624(2), Florida Statutes (2004); that the Respondent had violated the standards for the development or communication of a real estate appraisal (the ethics rules) in violation of Section 475.624(14), Florida Statutes (2004); that the Respondent had obstructed or hindered the enforcement of Chapter 475, Florida Statutes, by failing to respond to an authorized representative of the Petitioner in violation of Section 475.626(1)(f), Florida Statutes (2004); that the Respondent had received payment directly from the recipient of an appraisal report in violation of Section 475.6221(3),

Florida Statutes (2004); that the Respondent had failed to communicate an appraisal without good cause in violation of Section 475.624(16), Florida Statutes (2004); and that the Respondent had failed to comply with the disclosure and display requirements in violation of Section 475.624(4)(e), Florida Statutes (2004). The Respondent filed an Election of Rights disputing the allegations.

The case was referred to the Division of Administrative Hearings for formal proceedings on May 9, 2005, and was promptly scheduled for hearing. A Notice of Hearing was entered on May 19, 2005, and was mailed to the Respondent at his address of record. The hearing was scheduled for West Palm Beach, Florida.

In addition to the Notice of Hearing, an Order of Pre- Hearing Instructions was provided to the parties. Such order contemplated that the parties would confer prior to the hearing to discuss the case, explore settlement possibilities, and disclose witnesses and exhibits to be offered at trial.

The Petitioner filed a Response to Order of Pre-hearing Instructions on June 27, 2005. The Respondent filed a letter on July 13, 2005, seeking a continuance in order to retain an attorney. That motion was denied.

At the hearing, the Respondent renewed his motion for a continuance and alleged that he needed additional time to

retain an attorney to represent him in the matter. The Respondent alleged that he had spoken with an attorney (unnamed in the record) but was unable to reach an agreement regarding representation because he was “not a hundred percent comfortable with the attorney.” Prior to the taking of evidence, the Respondent was afforded a second opportunity (in addition to the procedures granted in the Order of Pre-hearing Instructions) to review the evidence to be presented in the matter. The Respondent was advised that the burden of proof in the case was with the Petitioner and that he would be entitled to cross-examine any and all witnesses called by the Department. A recess was provided to give the Respondent sufficient time to review the documents the Petitioner intended to offer into evidence.

Despite the foregoing, the Respondent continued to maintain he required a continuance and could not proceed without counsel. The Respondent was advised that his objection to the proceedings and renewed Motion for Continuance were denied. After the Respondent was advised that his request was denied he announced he would not participate in the proceedings. In fact, the Respondent refused to participate without counsel. The Respondent was advised that proceedings would continue with or without his participation and he was encouraged to participate. When

questions were posed to the Respondent, he stated, “I’m not answering any questions or participating in the hearing. I’m just listening. I’ll seek counsel after the hearing is over and I’ll see if I can appeal.” Thereafter, if the Respondent answered by shaking his head (an inaudible response) his response

was noted for the record. Eventually, the Respondent left the hearing room and did not return.

The Petitioner called the following witnesses: Michael Slade, a real estate appraiser and consultant with the firm of Callaway & Price; Harvel Gray, a real estate appraiser; Kenneth Drummond, a real estate appraiser; Mona Cesar, the owner of a vacant lot located at 4229 Southwest Jarmer Road, in Port St. Lucie, Florida; and Jonathan Platt, an investigator employed by the Petitioner. The Petitioner’s Exhibits numbered 1-11 were admitted into evidence.

The transcript of the proceeding was filed with the Division of Administrative Hearings on July 29, 2005.

Thereafter, the Petitioner filed a Proposed Recommended Order that has been considered in the preparation of this order. A letter addressed to the Petitioner’s counsel filed by Timothy

1. Smith (an attorney retained to represent the Respondent subsequent to the hearing) has not been considered a request for relief of any type. Thus the Objection to Motion to

   Extend Time filed by the Petitioner has been deemed premature.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material to the allegations of this case, the Petitioner was the state agency charged with the responsibility to administer and enforce the real estate licensing laws found in Chapter 475, Florida Statutes (2004).

   2. At all times material to the allegations of this case, the Respondent was a registered trainee appraiser who was subject to the provisions of Chapter 475, Florida Statutes (2004). As an appraiser trainee, the Respondent was required to perform appraisal services through a fully registered real estate appraiser licensed pursuant to Florida law.

   3. On or about December 21, 2002, Ms. Cesar paid the Respondent $550.00 to perform an appraisal for her vacant lot located at 4229 Southwest Jarmer Road, Port St. Lucie, Florida. Ms. Cesar paid the Respondent by check drawn on her personal bank account. The check was payable to the Respondent individually. The check was negotiated and the account was debited in the full amount of the check. At the time she tendered the check to the Respondent Ms. Cesar was under the impression that the Respondent was an appraiser who could lawfully perform the appraisal sought.

   4. The Respondent did not advise Ms. Cesar that he was only a trainee appraiser and that his supervisor would have to

      sign any appraisal report generated in connection with the Cesar property.

   5. Additionally, at that time, the Respondent’s supervising appraiser, Harvel Gray, was not aware of the appraisal assignment from Ms. Cesar, did not authorize the Respondent to accept the job, and did not authorize the Respondent to accept payment for the appraisal in his individual name. The funds for the Cesar appraisal were not forwarded to Mr. Gray.

   6. When Ms. Cesar asked the Respondent for the appraisal she had paid for, the Respondent told her it was illegal for him to give her a copy of the appraisal. She did not understand why she had paid $550.00 and was not provided with a copy of the appraisal.

   7. Ms. Cesar had planned to build a house on the vacant lot. She believed the Respondent could facilitate that project as he represented to her that he could get plans drawn, perform the appraisal, and help her through the entire process. In total Ms. Cesar paid the Respondent over $2000.00 to further the construction of the house.

   8. On or about July 7, 2003, an authorized representative of the Department, Jonathan Platt, contacted the Respondent and requested that the Respondent provide a copy of the appraisal performed for Ms. Cesar.

   9. On or about August 11, 2003, the Respondent produced a “comparative market analysis” report (the report) dated December 27, 2002, for the subject property (Ms. Cesar’s vacant lot).

   10. The report was on a Uniform Residential Appraisal Report form and identified the Respondent as the appraiser. Additionally, the form noted the Respondent’s license number as 0005168. The report did not indicate that the report had been reviewed or approved by a licensed appraiser.

   11. The report claimed the analysis was both “as is” and subject to the completion of work as specified in plans and specifications. There were no plans or specifications attached or included with the report.

   12. The report was not signed by a licensed real estate appraiser.

   13. After review of the report, Mr. Platt asked the Respondent for the work file that supported the appraisal report. Requests for the work file were made on August 12, 2003, September 30, 2003, and October 1, 2003. As of the time of hearing the Respondent had not made such file available to the Department.

   14. Harvel Gray is a licensed real estate appraiser.

       
       

       Mr. Gray appraises real estate and equipment and knows the Respondent. Mr. Gray met the Respondent when he applied to

       become a trainee appraiser about five years ago. For approximately three or four months Mr. Gray was technically the Respondent’s supervisor but performed no appraisals with the Respondent. In fact, Mr. Gray terminated his relationship with the Respondent before any appraisals could be performed. Mr. Gray did not know anything about the appraisal that was to be performed for Ms. Cesar.

   15. Ken Drummond is also a licensed real estate appraiser. Mr. Drummond knows the Respondent from a Gold Coast continuing education class. Mr. Drummond has never been the Respondent’s

       supervising appraiser. Mr. Drummond has not performed appraisals with the Respondent.

   16. According to licensing records, the only supervising appraiser with whom the Respondent was listed during the pertinent period of time as an appraiser trainee was Mr. Gray.

   17. Neither Gray nor Drummond authorized the Respondent to perform an appraisal or complete the report for Ms. Cesar.

   18. Neither Gray nor Drummond authorized the Respondent to accept payment from Ms. Cesar for any work.

   19. Jonathan Platt, the investigator assigned to this case, spoke with the Respondent and exchanged written information with him. The Respondent did not provide information requested by Mr. Platt and did not explain how the

       report was generated. According to Mr. Platt the Respondent maintained that Mr. Drummond was his supervising appraiser during the time the Cesar report was performed.

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

   21. The Petitioner bears the burden of proof in this matter. The Petitioner must establish by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   22. Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696 So. 2d 744 (Fla. 1997). In this case, the witnesses presented testimony that was precise, explicit, and unclouded. The evidence is of such weight that the findings reached herein have been established without hesitancy or uncertainty. Accordingly, it is concluded the Petitioner has met the burden of proof required to establish the allegations against this Respondent. See In re Davey, 645 So. 2d 398 (Fla. 1994). Additionally, it is concluded the allegations are fully supported by the record in this case.

   23. Section 475.624, Florida Statutes (2004), provides, in pertinent part:

       The board may deny an application for registration, licensure, or certification; may investigate the actions of any appraiser registered, licensed, or certified under this part; may reprimand or impose an administrative fine not to exceed

       $5,000 for each count or separate offense against any such appraiser; and may revoke or suspend, for a period not to exceed 10 years, the registration, license, or certification of any such appraiser, or place any such appraiser on probation, if it finds that the registered trainee, licensee, or certificateholder:

       
       

       * * *

       
       

       (2) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, 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 her or him by law or by the terms of a contract, whether written, oral, express, or implied, in an appraisal assignment; has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design, or scheme to engage in such misconduct and committed an overt act in furtherance of such intent, design, or scheme. It is immaterial to the guilt of the registered trainee, licensee, or certificateholder that the victim or intended victim of the misconduct has sustained no damage or loss; that the damage or loss has been settled and paid after discovery of the misconduct; or that such victim or intended victim was a customer or a person in confidential relation with the registered trainee, licensee, or certificateholder, or was an

       identified member of the general public.

       
       

       * * *

       
       

       (4) Has violated any of the provisions of this section or any lawful order or rule issued under the provisions of this section or chapter 455.

       
       

       * * *

       
       

       (14) Has violated any standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice.

       
       

       * * *

       
       

       (16) Has failed to communicate an appraisal without good cause.

       
       

   24. Section 475.626, Florida Statutes (2004), provides, in part:

       1. VIOLATIONS.--

          (a) No person shall operate or attempt to operate as a registered trainee appraiser or licensed or certified appraiser without being the holder of a valid and current registration, license, or certification.

          * * *

          (c) No person shall commit any conduct or practice set forth in s. 475.624.

          * * *

          1. No person shall obstruct or hinder in any manner the enforcement of this section or the performance of any lawful duty by any person acting under the authority of this section, or interfere with, intimidate, or offer any bribe to any member of the board or any of its employees

             or any person who is, or is expected to be, a witness in any investigation or proceeding relating to a violation of this section.

   25. Section 475.6221, Florida Statutes (2004), provides:

       
       

       1. A registered trainee real estate appraiser must perform appraisal services under the direct supervision of a licensed or certified appraiser who is designated as the primary supervisory appraiser. The primary supervisory appraiser may also designate additional licensed or certified appraisers as secondary supervisory appraisers. A secondary supervisory appraiser must be affiliated with the same firm or business as the primary supervisory appraiser and the primary or secondary supervisory appraiser must have the same business address as the registered trainee real estate appraiser. The primary supervisory appraiser must notify the Division of Real Estate of the name and address of any primary and secondary supervisory appraiser for whom the registered trainee will perform appraisal services, and must also notify the division within 10 days after terminating such relationship. Termination of the relationship with a primary supervisory appraiser automatically terminates the relationship with the secondary supervisory appraiser.

       2. A registered trainee real estate appraiser may only receive compensation through or from the primary supervisory appraiser.

   26. Florida Administrative Code Rule 61J1-8.002 sets forth the disciplinary guidelines applicable to this case. The rule provides, in pertinent part:

       1. Pursuant to Section 455.2273, F.S., the Florida Real Estate Appraisal Board sets forth below a range of disciplinary

          guidelines from which disciplinary penalties will be imposed upon licensees guilty of violating Chapter 455 or Part II, Chapter 475, F.S. (For purposes of this rule, the term licensee shall refer to registrants, license holders or certificate holders.) The purpose of the disciplinary guidelines is to give notice to licensees of the range of penalties which normally will be imposed for each count during a formal or an informal hearing. For purposes of this rule, the order of penalties, ranging from lowest to highest, is: reprimand, fine, probation, suspension, and revocation or denial. Pursuant to Section 475.624, F.S., combinations of these penalties are permissible by law.

          Nothing in this rule shall preclude any

          discipline imposed upon a licensee pursuant to a stipulation or settlement agreement, nor shall the ranges of penalties set forth in this rule preclude the probable cause panel from issuing a letter of guidance upon a finding of probable cause, where appropriate.

          
          

       2. As provided in Section 475.624, F.S., the Florida Real Estate Appraisal Board may, in addition to other disciplinary penalties, place a licensee on probation. The placement of the licensee on probation shall be for such a period of time and subject to such conditions as the Board may specify. Standard probationary conditions may include, but are not limited to, requiring the licensee: to attend pre- licensure courses; to satisfactorily complete a pre-licensure course; to attend and satisfactorily complete continuing education courses; to submit to reexamination through the state- administered examination, which must be successfully completed; to be subject to periodic inspections and interviews by an investigator of the Department of Business and Professional Regulation.

       3. The penalties are as listed unless aggravating or mitigating circumstances apply pursuant to subsection (4):

          * * * (e) Section 475.624(2), F.S.

          Guilty of fraud, misrepresentation,

          concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust. . . In the case of fraud, misrepresentation and dishonest dealing dishonest dealing, the usual action of the Board shall be to impose a penalty of revocation.

          
          

          In the case of concealment, false promises and false pretenses, the usual action of the Board shall be to impose a penalty of a

          3 to 5 year suspension and an administrative fine of $1000.00.

          
          

          In the case of culpable negligence and breach of trust, the usual action of the Board shall be to impose a penalty from a

          $1000 fine to a 1 year suspension.

          
          

          * * *

          
          

          1. Section 475.624(4), F.S. Violated any of the provisions of this section or any lawful order or rule issued under the provision of this section or Chapter 455,

          F.S. . . . The usual action of the Board shall be to impose a penalty up to revocation and an administrative fine up to

          $5,000.

          
          

          * * *

          
          

          (q) Section 475.624(14), F.S. Has violated any standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice...The usual action of the Board shall be to impose a penalty from a 5 year suspension

          to revocation and an administrative fine of

          $1000.

          
          

   27. It is concluded that the Respondent is not and was not at any time material to this case, a licensed real estate appraiser. At all times material to this case he was a trainee and was only authorized to perform appraisal services in conjunction with his registered supervising appraiser. The Respondent accepted payment for, but did not deliver to, the client, Ms. Cesar, an appraisal for her property. Ms. Cesar paid for the appraisal believing the Respondent to be an appraiser and she expected the Respondent to deliver a valid appraisal for her vacant lot. Not only did the Respondent not deliver the appraisal, he was unable to support the report he prepared when the Petitioner investigated this matter. Moreover, no licensed appraiser (neither the appraiser of record for the Respondent nor the one identified by the Respondent as his supervisor) acknowledged that the report was performed under the authority of their licenses.

   28. It is concluded the Respondent is guilty of

       
       

       misrepresentation. The Respondent misrepresented himself to Ms. Cesar and accepted payment for an appraisal he could not and did not prepare in accordance with applicable laws.

       Further, the Respondent is guilty of violating the standards for the development or communication of a real estate appraisal in that he did not have authority to prepare an

       appraisal and did not comply with real estate standards in preparing the report. Finally, the Respondent failed to cooperate with the investigation of this matter, did not provide information to the Department’s representative, and did not truthfully respond to inquiries made by the Petitioner. For example, Mr. Drummond never supervised the Respondent. The collective activities of the Respondent demonstrate he is not trust worthy to perform real estate appraisals.

   29. Florida Administrative Code Rule 28-106.210 provides:

       
       

       The presiding officer may grant a continuance of a hearing for good cause shown. Except in cases of emergency, requests for continuance must be made at least five days prior to the date noticed for the hearing.

       
       

   30. In this case the Respondent filed an untimely request for a continuance. Respondent maintained he needed additional time to obtain the services of an attorney. It is concluded that the Respondent proffered no credible explanation for why he was unable to obtain an attorney prior to the hearing. The investigation of this case began long before the Administrative Complaint was forwarded to the Division of Administrative Hearings. It is concluded the Respondent had sufficient time to obtain the services of an attorney prior to hearing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a Final Order that finds the Respondent guilty of the violations outlined by the Administrative Complaint and revokes his license as a real estate appraiser trainee.

S

DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August 2005.

COPIES FURNISHED:

Elizabeth Vieira, Director Division of Real Estate

400 West Robinson Street Suite 802 North

Orlando, Florida 32801

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Alpheus C. Parsons, Esquire Department of Business and

Professional Regulation

Hurston Building, North Tower, Suite N801

400 West Robinson Street Orlando, Florida 32801

Omari Murray

201 Southwest 11th Avenue Boynton Beach, Florida 33435

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 05-001651PL

Orders for Case No: 05-001651PL