STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 09-4043PL

)

RAQUEL TORAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH), on October 14, 2009, and November 19, 2009, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Donna Christine Lindamood, Esquire

Senior Attorney

Department of Business and Professional Regulation

400 West Robinson Street, N 802 Orlando, Florida 32801-1900

For Respondent: John O. Sutton, Esquire

Alexander Pastukh, Esquire Jamerson & Sutton LLP

2655 Le Jeune Road, Penthouse II Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about June 10, 2009, Petitioner issued a nine-count Administrative Complaint alleging that, in connection with an appraisal she conducted of property located at 140 Northwest 9th Avenue in Miami, Florida (Subject Property) in April 2007, Respondent violated Section 475.624(15), Florida Statutes2 (Count One); the Conduct Section of the Ethics Rule of the Uniform Standards of Professional Appraisal Practice (2006) and therefore also Section 475.624(14), Florida Statutes (Count Two); the Competency Rule of the Uniform Standards of Professional Appraisal Practice (2006) and therefore also Section 475.624(14), Florida Statutes (Count Three); the Scope of Work Rule of the Uniform Standards of Professional Appraisal Practice (2006) and therefore also Section 475.624(14), Florida Statutes (Count Four); Standards Rule 1-1(a), (b), and (c) of the Uniform Standards of Professional Appraisal Practice (2006) and therefore also Section 475.624(14), Florida Statutes (Count Five); Standards Rule 1-2(e) and (h) of the Uniform Standards of Professional Appraisal Practice (2006) and therefore also Section 475.624(14), Florida Statutes (Count Six); Standards

Rule 1-4(a) of the Uniform Standards of Professional Appraisal Practice (2006) and therefore also Section 475.624(14), Florida Statutes (Count Seven); Standards Rule 2-1(a) and (b) of the Uniform Standards of Professional Appraisal Practice (2006) and therefore also Section 475.624(14), Florida Statutes (Count Eight); and Standards Rule 2-2(b)(iii), (vii), (viii) and (ix) of the Uniform Standards of Professional Appraisal Practice (2006) and therefore also Section 475.624(14), Florida Statutes (Count Nine).

The Administrative Complaint contained the following 13 numbered paragraphs of "Essential Allegations of Material Fact" upon which these charges were based:

1. Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, including Section 20.165 and Chapters 120, 455 and 475 of the Florida Statutes, and the rules promulgated thereunder.

   
   

2. Respondent is currently a Florida state certified residential real estate appraiser having been issued license 4405 in accordance with Chapter 475, Part II of the Florida Statutes.

   
   

3. The last license the State issued to Respondent was as a state certified residential real estate appraiser at 2600 South Douglas Road, Coral Gables, Florida 33134.

   
   

4. On or about April 25, 2007, Respondent developed and communicated an appraisal

   report (Report) on property commonly known as 140 NW 9th Avenue, Miami, Florida 33128 (Subject Property), valuing the Subject Property at $590,000. A copy of the Report is attached hereto and incorporated herein as Administrative Complaint Exhibit 1.

   
   

5. Through contact with the Florida Agency for Healthcare Administration (AHCA), Petitioner's investigator determined that South Florida Home[] Services, Inc., located at the Subject Property's address possesses an assisted living facility (ALF) license number 9352, AHCA 11953555, with a capacity for 14 persons.

   
   

6. Petitioner's investigator obtained verbal confirmation from the City of Miami Planning and Zoning Department that South Florida Home Services, Inc. held a Certificate of Use as a 7 unit ALF at the Subject Property's address since 2002.

   
   

7. Petitioner's investigator obtained printouts dating to August 1998 from the Florida Department of State, Division of Corporations web site showing South Florida Home Services, Inc., as a profit corporation, having a principal place of business and mailing address identical to that of the Subject Property. The corporate president/director in 20[0]7 was Misladay Quintero and the 2006 president/director was Pablo Perez. A copy of the corporation printouts from 1998 through 2008 is attached hereto and incorporated herein as Administrative Complaint Exhibit 2.

   
   

8. The investigator obtained a tax printout from the Dade County, Florida Tax Collector's Office concerning collection of taxes from South Florida Home Services, Inc., operating as an ALF at the Subject Property address, commencing in December 1995. A copy of the public inquiry tax

   printout is attached hereto and incorporated herein as Administrative Complaint Exhibit 3.

9. [Petitioner's] investigator obtained copies of five Florida Department of Health, Dade County Health Department Residential Group Care Inspection Reports, for inspections conducted between April 6, 2007 and November 2, 2007, showing needed repairs to the wall of a 2nd stall in a restroom across from Room #5, the need for a screen in a kitchen restroom, and a mold/mildew problem with a shower in a kitchen restroom, such problems being inconsistent with single family residential use. The inspection reports indicate a capacity of 14 persons, with 14 being present at the April and May 2007 inspections. A copy of the inspection reports is attached hereto and incorporated herein as Administrative Complaint Exhibit 4.

   
   

10. Further, during the conduct of the investigation in December 2008, the investigator interviewed a witness, known only as "Norma" and the owner of record of the Subject Property, Pablo Perez, both of whom confirmed that the Subject Property was being operated as an ALF at the time Respondent developed and communicated the Report.

    
    

11. The appraisal assignment involving an ALF was a commercial assignment, not a single family residence, and required a state certified general appraiser, which Respondent was not.

    
    

12. At a minimum, Respondent, as a state certified residential appraiser should have disclosed to the client before accepting the assignment that she lacked the knowledge and/or experience, taken all steps necessary or appropriate to complete the assignment competently, and described in the Report itself the lack of knowledge and/or

    experience and the steps taken to complete the assignment competently.

    
    

13. Respondent reported the Subject Property as a single family residence and made additional errors or omissions in the Report as follows:

1. Respondent stated incorrect neighborhood boundaries;

   
   

2. Respondent recited a contract date of 4/2007 for a $590,000 sale to borrower Ortega, but the contract maintained in Respondent's work file, a copy of which is attached hereto and incorporated herein as Administrative Complaint Exhibit 5, revealed a date of May 11, 2007 after the effective date of the Report;

   
   

3. Respondent failed to note or explain discrepancies between the Report and available public records and/or occupant accounts regarding zoning, number of bedrooms/bathrooms, one versus two story, and commercial use;

   
   

4. None of Respondent's Comparable Sales were located in the Subject Property's defined market area; and

   
   

5. Respondent's use of single family residence Comparable Sales was inappropriate given the Subject Property's use as a commercial assisted living family.

On or about June 22, 2009, Respondent filed a written request for a Section 120.57(1) hearing before DOAH on the charges against her. On July 29, 2009, the matter was referred to DOAH to conduct the hearing Respondent had requested.

As noted above, the hearing was held on October 14, 2009, and November 19, 2009. Four witnesses testified at the hearing: Arthur Soule, Philip Spool, Diana DeFonzo, and Respondent.

Mr. Spool and Ms. DeFonzo gave expert testimony concerning appraisal development and communication standards--Mr. Spool on behalf of Petitioner, and Ms. DeFonzo on behalf of Respondent.3 Both Mr. Spool and Ms. DeFonzo are Florida-certified general real estate appraisers. Ms. DeFonzo, however, is also an Appraiser Qualifications Board (AQB)-certified Uniform Standards of Professional Appraisal Practice (USPAP) instructor (of which there are only 30 in the State of Florida), whereas Mr. Spool is not. Of the two experts, Ms. DeFonzo was, on the whole, the more persuasive and authoritative expert witness.

In addition to the foregoing testimonial evidence, 11 exhibits (Petitioner's Exhibits 1, 2, 4, 4a, 6, 7, 8, and 9), and Respondent's Exhibits 19, 22, and 23) were offered and received into evidence. Among these exhibits was the transcript of the October 9, 2009, deposition of Manuel Alzugaray, which was received into evidence (as Petitioner's Exhibit 9) in lieu of Mr. Alzugaray's live testimony at hearing.

At the request of the parties, the undersigned set the proposed recommended order filing deadline at 30 days from the date of the filing with DOAH of the complete hearing transcript.

The first two volumes of the hearing Transcript were filed with DOAH on November 2, 2009. The remaining two volumes were filed on December 16 and 17, 2009.

Respondent and Petitioner both timely filed their Proposed Recommended Orders on January 15, 2010.

In its Proposed Recommended Order, Petitioner announced that it was amending the Administrative Complaint by "withdr[awing] its allegations that Respondent had violated USPAP Standards Rules 1-2(e) [as alleged in Count Six of the Administrative Complaint] and 2-2(b)(iii) [as alleged in Count Nine of the Administrative Complaint] and thereby Section 475.624(14), Florida Statutes."

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since March 25, 2004, a Florida-certified residential real estate appraiser, holding license number RD 4405. She has not been the subject of any prior disciplinary action.

2. From 1998 until becoming certified as a residential real estate appraiser, Respondent was a Florida-registered trainee appraiser.

3. At all times material to the instant case, the Subject Property was a single-family residential property, owned by

   Pablo Perez, housing the residents of an assisted living facility (ALF) operated by South Florida Home Services, Inc., pursuant to a license issued by the Agency for Health Care Administration (AHCA).

4. At all times material the instant case, the Subject Property was zoned by the City of Miami for residential use.

5. The ALF that operated on the premises of the Subject Property was inspected by Miami-Dade County Health Department Code Inspector Manuel Alzugaray on April 6, 2007.

6. This was the only Miami-Dade County Health Department inspection of the premises conducted in April 2007.

7. The "results" of Mr. Alzugaray's April 6, 2007, inspection were "unsatisfactory."

8. The written "inspection report" that Mr. Alzugaray completed following the inspection contained the following "comments and instructions":

   Repair wall in the 2nd stall of the restroom across from Rm. #5.

   
   

   Repair all holes throughout the facility & floor tiles also.

   
   

   Maintain restrooms & facilities clean. Provide screen for kitchen restroom.

   Evidence of rodents in the kitchen.

   Evidence of termites in restroom across from Rm. 5.

9. Mr. Alzugaray noted, during his inspection, that the doors of the residents' bedrooms had removable numbers displayed on them and that the "restroom across from Rm. #5" had two toilets separated by a "divider."

10. Mr. Alzugaray returned to the Subject Property to conduct a follow-up inspection on May 17, 2007.

11. The "results" of Mr. Alzugaray's May 17, 2007, inspection were "unsatisfactory."

12. The written "inspection report" that Mr. Alzugaray completed following this May 17, 2007, inspection contained the following "comments and instructions":

    Evidence of rodent droppings in the kitchen.

    
    

    Provide screen for window in the kitchen bathroom.

    
    

    Remove mold & mildew from shower in the kitchen restroom.

    
    

    Repair restroom in the 2nd floor (toilet doesn't flush).

    
    

13. During both the April 6, 2007, and May 17, 2007, inspections, there were, by Mr. Alzugaray's count, 14 ALF residents present on the premises. (The facility had a licensed capacity of 14 residents.)

14. Mr. Alzugaray conducted two additional inspections of the ALF in 2007, one on September 12, 2007, and the other on November 2, 2007, with the former yielding "unsatisfactory"

    "results" (due to "drawers in [the] kitchen [not being] clean" and there being "evidence of roach droppings in the kitchen area") and the latter yielding "satisfactory" "results."

15. In April 2007, Respondent was working as a residential real estate appraiser for Atlantic Appraisal Consultants Corporation, when she received an assignment to conduct a residential appraisal of the Subject Property for Affordable Finance Group (Affordable).

16. Affordable was in the business of making residential mortgage loans, and only residential mortgage loans. It did not make commercial mortgage loans.

17. Affordable had received an application from Adolfina Ortega for a residential mortgage loan to purchase the Subject Property from its owner, Mr. Perez. The purpose of the appraisal was to determine whether the market value of this single-family residential property justified Affordable's making the loan.

18. Affordable had telephoned Respondent's secretary on April 10, 2007, to order the appraisal.

19. Respondent's secretary inputted the information she had received from Affordable "in the [office] computer" and generated a printed appraisal order (Order), which she gave to Respondent.

20. The Order indicated that Affordable was requesting an "SFA" (a shorthand reference to a "single family appraisal") of the Subject Property in connection with a mortgage loan sought by Ms. Ortega. This was an appraisal Respondent was competent and qualified to perform by herself as a Florida-certified residential real estate appraiser.

21. The same day the appraisal was requested (April 10, 2007), Respondent telephoned Affordable and discussed the appraisal assignment with an Affordable representative. During this telephone conversation, Respondent was told that the Subject Property was owner-occupied and that its sale was "pending contract." She was also given the name of the owner/seller, Mr. Perez, and his telephone number. Nothing was said to Respondent to suggest that she was expected to perform anything other than the "SFA" indicated on the Order. No mention was made of any business that was part of the sale.

22. Later in the day on April 10, 2007, Respondent telephoned Mr. Perez and made arrangements to visit the Subject Property on the morning of April 12, 2007, as part of the appraisal process.

23. Before her visit, to find out more information about the Subject Property and to obtain possible "comparable sales" properties, Respondent performed internet-based research using generally accepted data sources (MLS, FARES, and RealQuest) that

    Florida-certified residential real estate appraisers typically employ for such purposes.

24. According to the data her research uncovered, the Subject Property was a one-story, single-family residence, with three bedrooms and two bathrooms, that was owned by Mr. Perez and had R-4 zoning. There was nothing in any of the data sources that she used to indicate that an ALF or any other business was operating on the premises of the Subject Property.

25. Respondent visited the Subject Property the morning of April 12, 2007, as scheduled.

26. When she arrived (somewhere between 10:00 and 10:30 a.m.), she was greeted by a "gentleman."4

27. Respondent and this "gentleman" were the only persons present at the Subject Property during the entire time Respondent was there.

28. After measuring the exterior of the structure, Respondent asked for and was granted permission to go inside to do a "very basic" "walk[] through," the purpose of which was to note the number and location of the rooms and the general condition of the residence.

29. Respondent's "walk[] through" took approximately ten minutes, which was an adequate amount of time for her to accomplish what she needed to. As part of the "walk[] through," she "peek[ed] in" the bathrooms.

30. The last thing that Respondent did during her visit was to take photographs outside the residence.5

31. Respondent witnessed nothing during her visit to suggest that the Subject Property was anything other than a single-family residential property. She had no reason to believe, based on the observations she made,6 that the property was being used as an ALF or to conduct any other business activity.

32. She did discover, however, as a result of the observations she made during her visit, that the on-line information she had obtained about the Subject Property was inaccurate to the extent that it indicated that the Subject Property was a one-story structure with three bedrooms, not a two-story structure with five bedrooms. Appropriately, in completing her appraisal, she relied, not on this erroneous information, but on what she had actually observed during her visit.

33. On her way back from the Subject Property, Respondent drove to, and parked on the street outside of, each of the three possible "comparable sales" properties she had selected before setting out that morning (all of which were located within 1.28 miles of the Subject Property). She looked at and took exterior photographs of each property, but did not go inside any of them.

    On the Order, which she had taken with her, she wrote notes recording her observations about each property.

34. Thereafter, Respondent sought to verify the information she had gleaned from her internet-based research about these three "comparable sales" properties (as she was professionally required to do, if she wanted to use them for her appraisal). She did so, appropriately, by contacting individuals who had been involved in these "comparable sales" transactions (realtors, in the case of two of the transactions, and the purchasers, in the case of the other). Where there was a conflict between what her research had revealed and what she was told by these individuals, she, again appropriately, relied on the latter in completing her appraisal.

35. Using a pre-printed Fannie Mae form, Respondent completed a Summary Appraisal Report (Report), dated April 30, 2007, containing her opinion that the market value of the Subject Property as of April 25, 2007 (the date Respondent started preparing the Report) was $590,000.00 (which was price Ms. Ortega had agreed to pay Mr. Perez for the Subject Property). Respondent arrived at her opinion by conducting a sales comparison analysis. (She conducted neither a cost analysis nor an income analysis.)

36. As she indicated in the Report, Respondent, appropriately, appraised the Subject Property as a single-family

    residential property, as she had been asked to do by Affordable.

    
    

37. The first page of Respondent's Report contained five sections: "Subject," "Contract," "Neighborhood," "Site," and "Improvements."

38. The "Subject" section of the Report read, in pertinent part, as follows:

    Property Address: 140 NW 9 AVENUE City: MIAMI

    State: FL

    Zip Code: 33128 County: MIAMI DADE

    
    

    Borrower: ORTEGA

    Owner of Public Record: PEREZ Neighborhood Name: RIVERVIEW

    * * * Occupant: X Owner _ Tenant _ Vacant

    * * *

    
    

    Property Rights Appraised: X Fee Simple

    _ Leasehold

    _ Other (Describe)

    * * * Assignment Type: X Purchase Transaction

    _ Refinance Transaction

    _ Other (describe)

    
    

    Lender/Client: AFFORDABLE FINANCIAL GROUP

    . . . . .

    
    

    Report data source(s) used, offering price(s), and date(s): PUBLIC RECORDS, MLS TAX ROLLS, REALQUEST

39. The "Contract" section of the Report read, in pertinent part, as follows:

    I _ did X did not analyze the contract for sale for the subject purchase transaction.

    
    

    Explain the results of the analysis of the contract for sale or why the analysis was not performed. SALE PRICE IS $590,000 AND 4/2007 CONTRACT DATE PER SALES CONTRACT.

    
    

    Contract Price: $590,000 Date of Contract: 4/2007

    Is the property seller the owner of public record: X Yes _ No

    Data Sources: PUBLIC RECORDS

    
    

    Is there any financial assistance (loan charges, sale concessions, gift or down payment assistance, etc.) to be paid by any party on behalf of the borrower?

    X Yes _ No

    
    

    If Yes, report the total dollar amount and describe the items to be paid: 20,000 SELLER TO PAY $20,000 TOWARDS BUYER[']S CLOSING COST[s].

    
    

40. Respondent did not "analyze the contract for sale for the subject purchase transaction" because she was not in possession of a written contract at the time she prepared her Report. She had merely been told (by the Affordable representative) of the purported existence of such a contract and of its salient terms. It was not unreasonable, however, for her to have relied on these oral representations and included in the Report the information with she had been provided, as she did.

41. Following the development and communication of the Report, Respondent received a copy of a written contract, dated May 11, 2007, signed by Mr. Perez, as the seller of the Subject Property, and Ms. Ortega, as the buyer. Respondent maintained this written contract in her work file.7

42. The contract was a "standard purchase and sale contract for the sale of a residential home." Consistent with the information contained in the "Contract" section of the Report, the "contract price" was $590,000.00, and provision was made in the contract for a $20,000.00 "seller contribution toward closing costs." The contract made clear that what was being purchased and sold was the Subject Property, "together with all improvements and attached items," as well as "all appliances in working condition[]," and nothing else (including any business enterprise that might have been operating on the premises or any items associated therewith).8

43. In the "Neighborhood" section of the Report, Respondent identified the boundaries of what she considered, in her judgment, to be the "neighborhood" in which the Subject Property was located. She identified these boundaries as follows: "US-1 TO THE SOUTH, I-95 TO THE EAST, SR 836 TO THE NORTH, AND SW 17TH AVENUE TO THE WEST." She then provided the following "Neighborhood Description" and "Market Conditions":

    Neighborhood Description: Subject is

    located in a typical neighborhood. Typical neighborhood amenities such as schools, shopping, parks, houses of worship and transportation are within a reasonable distance of the subject but do not intrude on residential areas. No unfavorable factors affect marketability. Subject is convenient to employment centers and is stable at present time. The predominate price for the area does not appear to [sic].

    
    

    Market Conditions (including support for the above conclusions): Property values are stable along with supply and demand.

    Competitive listings are selling within 3-6 months. Typical sales are at 93-95% of listing price. Sellers need not negotiate financing related concessions as most sales are conventional or FHA/VA financed.

    
    

44. Identifying the precise boundaries of a property's "neighborhood" is largely a subjective exercise.9 While Petitioner's expert, Mr. Spool, may have drawn different, narrower "neighborhood" boundaries had he been the one doing the appraisal (as he testified he would have at hearing), it cannot be clearly said that the boundaries identified by Respondent in her Report were "incorrect," as alleged in numbered paragraph 13A. of the Administrative Complaint's "Essential Allegations of Material Fact." Where the boundaries of the Subject Property's "neighborhood" lie is a matter of judgment about which reasonable people may disagree.

45. The "Site" section of the Report read, in part, as follows:

    * * * View: RESIDENTIAL

    Specific Zoning Classification: R-4 (AS PER TAX ROLL).

    
    

    Zoning Description: MULTI-FAMILY HIGH- DENSITY RESIDENTIAL.

    
    

    Zoning Compliance: X Legal _ Legal Nonconforming (Grandfathered Use)

    _ No Zoning _ Illegal (describe)

    
    

    Is the highest and best use of subject property as improved (or as proposed per plans and specifications) the present use? X Yes _ No If no, describe.

    
    

    * * *

    
    

46. In the "Improvements" section of the Report, Respondent indicated, among other things, that the Subject Property was a one-unit structure built in 1920, with an "effective age" of 30 years. Next to "# of stories," Respondent inadvertently entered, "One," but next to "Design (Style)," she put, "2 Story" (which, as the "Subject Front" photograph appended to the Report plainly showed, was, of these two conflicting entries, the correct one). Other information provided in this section included the following:

    Finished area above grade contains: 8 Rooms, 5 Bedrooms, 2 Bath(s) 1,971 Square Feet of Gross Living Area Above Grade.

    Additional features (special energy efficient items, etc.) THE SUBJECT HAS A COVERED ENTRY, TILE/WOOD FLOORS, CENTRAL AND UNIT A/C, CHAIN LINK FENCE, OPEN PARKING, ALUM. PATIO, AND GRAVEL DRIVEWAY.

    
    

    Describe the condition of the property (including needed repairs, deterioration, renovation, remodeling, etc.). NORMAL PHYSICAL DEPRECIATION FOR AGE. THE SUBJECT APPEARS TO BE IN OVERALL AVERAGE CONDITION.

    
    

    Are there any physical deficiencies or adverse conditions that affect livability, soundness, or structural integrity of the property? _ Yes X No If Yes, describe

    
    

    Does the property generally conform to the neighborhood (functional utility, style, condition, use, construction, etc.)?

    X Yes _ No If No, describe

    
    

47. The second page of Respondent's Report contained two sections: "Sales Comparison Approach" and "Reconciliation."

48. In the "Sales Comparison Approach" section of the Report, Respondent identified the three "comparable sales" properties ("comparables") that she initially examined to estimate (using a sales comparison analysis) the market value of the Subject Property, and she provided information about these "comparables," as well as the Subject Property.

49. The following were the three "comparables" Respondent selected for her sales comparison analysis: Comparable Sale 1, located at 2805 Southwest 4th Avenue in Miami (1.28 miles from the Subject Property); Comparable Sale 2, located at 460 Southwest 18th Terrace in Miami (.92 miles from the Subject

    Property); and Comparable Sale 3, located at 1285 Southwest 16th Street in Miami (1.18 miles from the Subject Property).

50. It is alleged in numbered paragraph 13D. of the Administrative Complaint's "Essential Allegations of Material Fact" that Respondent erred in using these "comparables" because none of them were "located in the Subject Property's defined market area."10 It is not at all clear from a review of the evidentiary record, however, what constituted the "Subject Property's defined market area," as that phrase is used in the Administrative Complaint,"11 and it therefore cannot be said, without hesitation, that any of these "comparables" were located outside of this "market area."

51. The Report accurately reflected that the "comparables," as well as the Subject Property, were "Residential" properties. Contrary to the assertion made in numbered paragraph 13E. of the Administrative Complaint's "Essential Allegations of Material Fact," "Respondent's use of single family Comparable Sales was [not] inappropriate," given that the Subject Property was a single-family residential property (that, according to the information Respondent had obtained from the client, Affordable, was being sold to an individual seeking a mortgage loan from Affordable to finance the purchase transaction), and Affordable had requested, and Respondent was performing, appropriately, an "SFA" to determine

    the value of this single-family residential property. That an ALF (which was not part of the purchase transaction) was operating on the premises of this single-family residential property did not render "Respondent's use of single family Comparable Sales . . . inappropriate."

52. Comparative information relating to the three "comparables" chosen by Respondent and the Subject Property was set forth in a grid (Sales Comparison Grid) in the "Sales Comparison Approach" section of the Report.

53. On the "Design (Style)" line of the Sales Comparison Grid, Respondent indicated that the Subject Property was a "2 Story" structure.

54. On the "Above Grade Room Count" line of the Sales Comparison Grid, Respondent entered the following with respect to the Subject Property and the three "comparables":

    Subject Property: 8 (Total); 5 (bdrms.);

    1. (Baths).

       
       

       Comparable Sale 1: 6 (Total); 3 (bdrms.);

    2. (Baths).

    
    

    Comparable Sale 2: 6 (Total); 3 (bdrms.);

    1 (Bath).

    
    

    Comparable Sale 3: 7 (Total); 4 (bdrms.);

    3 (Baths).

    
    

55. The following "Adjusted Sale Price[s]" for the three "comparables" were set forth on the last line of the Sales

    Comparison Grid: Comparable Sale 1: $595,800.00; Comparable Sale 2: $571,400.00; and Comparable Sale 3: $628,700.00.

56. At the end of the "Sales Comparison Approach" section (beneath the grid) was the following "Summary of Sales Comparison Approach" and "Indicated Value by Sales Comparison Approach":

    Summary of Sales Comparison Approach: SEE ATTACHED ADDENDUM. THE SUBJECT PROPERTY IS SIMILAR TO ALL THREE COMPARABLE CLOSED SALES WHICH WERE CAREFULLY SELECTED AFTER AN EXTENSIVE SEARCH IN AND OUT OF THE SUBJECT NEIGHBORHOOD. THIS SEARCH CONSISTED OF ANALYZING NUMEROUS CLOSED SALES AND NARROWING THIS LIST DOWN TO THE THREE MOST SIMILAR. AFTER CLOSE EVALUATION OF THE THREE COMPARABLE SALES UTILIZED, ADJUSTMENTS TO ALL COMPARABLES[S] WERE MADE ACCORDINGLY.

    
    

    Indicated Value by Sales Comparison Approach: $590,000.

    
    

57. In the first part of the "Reconciliation" section of the Report, Respondent reiterated that $590,000.00 was the "Indicated Value by [the] Sales Comparison Approach," and she added that she used this approach in valuing the Subject Property because it "best reflect[ed] [the] action of buyers and sellers in the market place."

58. The second and final part of the "Reconciliation" section of the Report read, in part, as follows:

    This appraisal is made x "as is," . . . . .

    
    

    Based on a complete visual inspection of the interior and exterior areas of the subject

    property, defined scope of work, statement of assumptions and limiting conditions, and appraiser's certification, my (our) opinion of the market value, as defined, of the real property that is the subject of this report is $590,000, as of APRIL 25, 2007, which is the date of inspection and the effective date of this appraisal.

    
    

    The "date of inspection" was actually April 12, 2007, not April 25, 2007.

59. On the third page of the Report, Respondent indicated that the "income approach [was] not applied [to determine the Subject Property's value] due to lack of rental data."

60. The fourth page of the Report contained pre-printed boilerplate, including the following:

    This report form is designed to report an appraisal of a one-unit property . . . .

    
    

    The appraisal report is subject to the following scope of work, intended use, definition of market value, statement of assumptions and limiting conditions, and certifications. Modifications, additions, or deletions to the intended use, intended user, definition of market value, or assumptions and limiting conditions are not permitted. The appraiser may expand the scope of work to include any additional research or analysis necessary, based on the complexity of this appraisal assignment.

    Modifications or deletions to the certifications are also not permitted. However additional certifications that do not constitute material alterations to this appraisal report, such as those required by law or those related to the appraiser's continuing education or membership in an appraisal organization, are permitted.

    SCOPE OF WORK: The scope of work for this appraisal is defined by the complexity of this appraisal assignment and the reporting requirements of this appraisal report

    form, including the following definition of market value, statement of assumptions and limiting conditions, and certifications.

    The appraiser must, at a minimum:

    1. perform a complete visual inspection of the interior and exterior areas of the subject property, (2) inspect the neighborhood, (3) inspect each of the comparable sales from at least the street,

       1. research, verify, and analyze data from reliable public and/or privates sources, and

       2. report his or her analysis, opinions, and conclusions in this appraisal report.

       
       

       INTENDED USE: The intended use of this appraisal report is for the lender/client to evaluate the property that is the subject of this appraisal for a mortgage finance transaction.

       
       

       INTENDED USER: The intended user of this appraisal report is the lender/client.

       
       

       DEFINITION OF MARKET VALUE: The most

       probable price a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently, knowledgably and assuming the price is not affected by undue stimulus. Implicit in this definition is the consummation of a sale as of a specified date and the passing of title from seller to buyer under conditions whereby: (1) buyer and seller are typically motivated; (2) both parties are well informed or well advised, and each acting in what he or she considers his or her own best interest; (3) a reasonable time is allowed for exposure in the open market;

       (4) payment is made in terms of cash in

       U. S. dollars or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration

       for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.

       * * * STATEMENT OF ASSUMPTIONS AND LIMITING

       CONDITIONS: The appraiser's certification in this report is subject to the following assumptions and limiting conditions:

       
       

       1. The appraiser will not be responsible for matters of a legal nature that affect either the property being appraised or the title to it, except for information that he or she became aware of during the research involved in performing this appraisal. The appraiser assumes that the title is good and marketable and will not render any opinions about the title.

          
          

       2. The appraiser has provided a sketch in this appraisal report to show the approximate dimensions of the improvements. The sketch is included only to assist the reader in visualizing the property and understanding the appraiser's determination of its size.

       
       

       * * *

       
       

61. The fifth and sixth pages of the Report contained additional pre-printed boilerplate in the form of an "Appraiser's Certification," wherein "the Appraiser [Respondent] certifie[d] and agree[d] that":

    1. I have, at a minimum, developed and reported this appraisal in accordance with the scope of work requirements stated in this appraisal report.

       
       

    2. I performed a complete visual inspection of the interior and exterior areas of the subject property. I reported the condition

       of the improvements in factual, specific terms. I identified and reported the physical deficiencies that could affect the livability, soundness or structural integrity of the property.

       
       

    3. I performed this appraisal in accordance with the requirements of the Uniform Standards of Professional Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal Foundation and that were in place at the time this appraisal report was prepared.

       
       

    4. I developed my opinion of the market value of the real property that is the subject of this report based on the sales comparison approach to value. I have adequate comparable market data to develop a reliable sales comparison approach for this appraisal assignment. I further certify that I considered the cost and income approaches to value but did not develop them, unless otherwise indicated in this report.

       
       

    5. I researched, verified, analyzed, and reported on any current agreement for sale for the subject property, any offering for sale of the subject property in the twelve months prior to the effective date of this appraisal, and the prior sales of the subject property for a minimum of three years prior to the effective date of this appraisal, unless otherwise indicated in this report.

       
       

    6. I researched, verified, analyzed, and reported on the prior sales of the comparable sales for a minimum of one year prior to the date of sale of the comparable sale, unless otherwise indicated in the report.

       
       

    7. I selected and used comparable sales that are locationally, physically, and

       functionally the most similar to the subject property.

       
       

    8. I have not used comparable sales that were the result of combining a land sale with the contract purchase price of a home that has been built or will be built on the land.

       
       

    9. I have reported adjustments to the comparable sales that reflect the market's reaction to the differences between the subject property and the comparable sales.

       
       

    10. I verified, from a disinterested source, all information in this report that was provided by parties who have a financial interest in the sale or financing of the subject property.

        
        

    11. I have knowledge and experience in appraising this type of property in this market area.

        
        

    12. I am aware of, and have access to, the necessary and appropriate public and private data sources, such as multiple listing services, tax assessment records, public land records and other such data sources for the area in which the property is located.

        
        

    13. I obtained the information, estimates, and opinions furnished by other parties and expressed in this appraisal report from reliable sources that I believe to be true and correct.

        
        

    14. I have taken into consideration factors that have an impact on value with respect to the subject neighborhood, subject property, and the proximity of the subject property to adverse influences in the development of my opinion of market value. I have noted in this appraisal report any adverse conditions (such as, but not limited to, needed repairs, deterioration, the presence of hazardous wastes, toxic substances, adverse

        environmental conditions, etc.) observed during the inspection of the subject property or that I became aware of during research involved in performing this appraisal. I have considered these adverse conditions in my analysis of the property value, and have reported on the effect of the conditions on the value and marketability of the subject property.

        
        

    15. I have not knowingly withheld any significant information from this appraisal and, to the best of my knowledge, all statements and information in this appraisal report are true and correct.

        
        

    16. I stated in this appraisal report my own personal, unbiased, and professional analysis, opinions, and conclusions, which are subject only to the assumptions and limiting conditions in this appraisal report.

        
        

    17. I have no present or prospective interest in the property that is the subject of this report, and I have no present or prospective personal interest or bias with respect to the participants in the transaction. I did not base, either partially or completely, my analysis and/or opinion of market value in this appraisal report on the race, color, religion, sex, age, marital status, handicap, familial status, or national origin of either the prospective owners or occupants of the subject property or of the present owner or occupants of the properties in the vicinity of the subject property or on any other basis prohibited by law.

        
        

    18. My employment and/or compensation for performing this appraisal or any future or anticipated appraisals was not conditioned on any agreement or understanding, written or otherwise, that I would report (or present analysis supporting) a predetermined specific value, a predetermined minimum

        value, a range or direction in value, a value that favors the cause of any party, or the attainment of a specific result or occurrence of a specific subsequent event (such as approval of a pending mortgage loan application).

        
        

    19. I personally prepared all conclusions and opinions about the real estate that were set forth in this appraisal report. If I relied on significant real property appraisal assistance from any individual or individuals in the performance of this appraisal or the preparation of this appraisal report, I have named such individual(s) and disclosed the specific tasks performed in this appraisal report.[12] I certify that any individual so named is qualified to perform the tasks. I have not authorized anyone to make a change to any item in this appraisal report; therefore any change made to this appraisal is unauthorized and I will take no responsibility for it.

        
        

    20. I identified the lender/client in this appraisal report who is the individual, organization, or agent for the organization that ordered and will receive this appraisal report.

        
        

    21. The lender/client may disclose or distribute this appraisal to the borrower; another lender at the request of the borrower; the mortgagee or its successors and assigns; mortgage insurers; government sponsored enterprises; other secondary market participants; data collection or reporting services; professional appraisal organizations; any department, agency, or instrumentality of the United States; and any state, the District of Columbia, or other jurisdictions; without having to obtain the appraiser's or supervisory appraiser's (if applicable) consent. Such consent must be obtained before this appraisal report may be disclosed or

        distributed to any other party, including, but not limited to, the public through advertising, public relations, news, sales, or other media.

        
        

    22. I am aware that any disclosure or distribution of this appraisal report by me or the lender/client may be subject to certain laws and regulations. Further, I am also subject to the provisions of the Uniform Standards of Professional Appraisal Practice that pertain to disclosure or distribution by me.

        
        

    23. The borrower, another lender at the request of the borrower, the mortgagee or its successors and assigns, mortgage insurers, government sponsored enterprises, and other secondary market participants may rely on this appraisal report as part of any mortgage finance transaction that involves any one or more of these parties.

        
        

    24. If this appraisal was transmitted as an "electronic record" containing my "electronic signature," as those terms are defined in applicable federal and/or state laws (excluding audio and video recordings), or a facsimile transmission of this appraisal report containing a copy or representation of my signature, the appraisal report shall be as effective, enforceable and valid as if a paper version of this appraisal report were delivered containing my original hand written signature.

        
        

    25. Any intentional or negligent misrepresentation contained in this appraisal report may result in civil liability and/or criminal penalties including, but not limited to, fine or imprisonment or both under the provisions of Title 18, United States Code, Section 1001, et seq., or similar state laws.

62. Directly beneath the foregoing boilerplate was Respondent's signature.

63. Appended to the Report was a "Supplemental Addendum," which read, in pertinent part, as follows:

    ALL SALES WERE CLOSED SALES AND CONSIDERED STRONG MARKET VALUE INDICATORS FOR THE SUBJECT PROPERTY. THEY ARE RELATIVELY SIMILAR TO THE SUBJECT IN TERMS OF LOCATION, QUALITY OF CONSTRUCTION, RELATIVE SIZE, ROOM COUNT AND MARKET APPEAL. THEY ARE LOCATED IN THE SUBJECT'S IMMEDIATE AREA AND ALL SHARE THE SAME IF NOT SIMILAR NEIGHBORHOOD AMENITIES.

    
    

    ADJUSTMENTS WERE REQUIRED FOR SITE CONDITION, BATH, GLA, CARPORT AND POOL. AFTER EXTENSIVE RESEARCH, THE THREE SALES USED WERE DEEMED GOOD INDICATORS OF MARKET VALUE. EQUAL EMPHASIS WAS PLACED ON ALL THREE SALES.

    
    

    * * * SCOPE OF APPRAISAL

    The appraisal is based on the information gathered by the appraiser from public records, other identified sources, inspection of the subject property and neighborhood, and selection of comparable sales within the market area. The original source of the comparables is shown in the Data Source section of the market grid along with the source of confirmation, if available. The original source is presented first. The sources and data are considered reliable. When conflicting information was provided, the source deemed most reliable has been used. Data believed to be unbelievable was not included in this report nor was used as a basis for the value conclusion.

    * * * HIGHEST AND BEST USE

    The Highest and Best Use of a site is that reasonable and probable use that supports the highest present value, as defined, as of the effective date of the appraisal. For improvements to represent[] the highest and best use of a site, they must be legally permitted, be financially feasible, be physically possible and provide[] more profit than any other use of the site would generate.

    
    

    SITE

    
    

    The improvements on the property are legal and conform to current zoning regulations. In the event of a loss by fire [] all improvements could be rebuilt without obtaining a zoning variance.

    
    

    The opinion of zoning compliance requirements expressed in this appraisal is based on the appraiser's inspections of the subject property and comparison to the appropriate zoning ordinance. This opinion does not represent a certification which can only be obtained from the proper jurisdictional authority.

    
    

    * * *

    
    

    ROOM LISTS

    
    

    The number of rooms, bedrooms, baths and lavatories is typical of houses in this neighborhood. Foyers, laundry rooms and all rooms below grade are excluded from the total room count.

    
    

    * * *

    CONDITION OF COMPONENTS

    
    

    Any opinion expressed in this appraisal pertaining to the condition of the appraised property's, or comparable property's components, is based on observation[s] made at the time of inspection. They rely on visual indicators as well as reasonable expectations as to adequacy and dictated by neighborhood standards relative to marketability. These observations do not constitute certification of condition, including roof or termite problems, which may exist. If certification is required, a properly licensed or qualified individual should be consulted.

    
    

    * * * DIRECT SALES COMPARISON APPROACH

    Direct Sales Comparison Approach is based on the comparison of the subject with sales of similar type properties. Adjustments are made to these sales for differences with the subject. [T]his is generally considered the best indicator of value.

    * * * CONDITIONS OF APPRAISAL

    PERSONAL PROPERTY/INTANGIBLE/NON-REALTY ITEMS

    
    

    Items of personal property and other non- realty items have not been included in the appraisal o[f] the subject property. The indicated Market Value for the subject property does not include items o[f] personal property or other non-realty property.

    
    

    * * *

    
    

64. Via the "Supplemental Addendum," Respondent advised the reader of the Report that, where she had "conflicting

    information," she included in the Report only the data that was, in her view, "most reliable." While she did not, anywhere in the Report, specify or describe how this included data differed from the less reliable data she excluded, she was under no professional obligation to do so (contrary to the allegation made in numbered paragraph 13C. of the Administrative Complaint's "Essential Allegations of Material Fact").

65. Appended to the Report, in addition to the "Subject Front" photograph referenced above, were five other photographs: two additional photographs Respondent took when she was at the Subject Property on April 12, 2007 (a "Subject Rear" photograph and a "Subject Street" photograph); and an exterior photograph of each of the three "comparables."

66. Also appended to the Report was a sketch of the Subject Property, showing it to be a two-story, five-bedroom, two-bath structure.

67. Approximately two months after Respondent had developed and communicated the Report, Affordable asked her to examine two "additional comparables to support [the determination of] value" she had made.

68. Respondent complied with this request. The two "additional comparables" she selected were Comparable Sale 4, located at 330 Southwest 29th Road in Miami (1.02 miles from the Subject Property), and Comparable Sale 5, located at 441

    Southwest 29th Road in Miami (1.29 miles from the Subject Property). According to Respondent's calculations, Comparable Sale 4 had an "Adjusted Sale Price" of $603,800.00, and Comparable Sale 5 had an "Adjusted Sale Price" of $599,200.00. She further determined, and on or about June 25, 2007, reported to Affordable, that her analysis of these two additional comparables "support[ed] [her prior determination of] market value."13

    CONCLUSIONS OF LAW

    
    

69. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

70. As a certified residential real estate appraiser, Petitioner is (as she was at the time of the appraisal in this case) "certified by the [D]epartment [of Business and Professional Regulation] as qualified to issue appraisal reports for residential real property of one to four residential units."

    § 475.611(1)(i), Fla. Stat. (Unlike certified residential real estate appraisers, who can appraise only certain "residential real property," certified general real estate appraisers are "qualified to issue appraisal reports for any type of real property," including commercial property. § 475.611(1)(h), Fla. Stat.)

71. At all times material to the instant case, the Florida Real Estate Appraisal Board (Board) has been statutorily empowered to take disciplinary action against certified residential real estate appraisers based upon any of the grounds enumerated in Section 475.624, Florida Statutes.

72. The Board may impose one or more of the following penalties, and no others: license revocation; license suspension (for a period not exceeding ten years); imposition of an administrative fine not to exceed $5,000.00 for each count or separate offense; issuance of a reprimand; and placement of the licensee on probation. § 475.624, Fla. Stat.

73. The Board may take such action only after the licensee has been given reasonable written notice of the charges and an adequate opportunity to request a proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes. See § 120.60(5), Fla. Stat.

74. An evidentiary hearing must be held if requested by the licensee when there are disputed issues of material fact. See Hollis v. Department of Business and Professional Regulation, 982 So. 2d 1237, 1239 (Fla. 5th DCA 2008); § 120.569(1); Fla. Stat.; and § 120.57(1), Fla. Stat.

75. At the hearing, Petitioner bears the burden of proving that the licensee engaged in the conduct, and thereby committed the violations, alleged in the charging instrument. Clear and

    convincing evidence of the licensee's guilt must be presented for Petitioner to meet its burden of proof. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Fox v. Department of Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008); Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998); and § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings ").

76. Clear and convincing evidence is an "intermediate standard," "requir[ing] 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, 753 (Fla. 1997). For proof to be considered "'clear and convincing' . . .

    the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(citing with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983));

    see also In re Adoption of Baby E. A. W., 658 So. 2d 961, 967 (Fla. 1995)("The evidence [in order to be clear and convincing] must be sufficient to convince the trier of fact without hesitancy."). "Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corporation, Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

77. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific allegations of wrongdoing made in the charging instrument. Due process prohibits the Board from taking disciplinary action against a licensee based on conduct not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Aldrete v. Department of Health, Board of Medicine, 879 So. 2d 1244, 1246 (Fla. 1st DCA 2004); Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208,

    210 (Fla. 4th DCA 2002); and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). The charging instrument must contain specific factual allegations describing any misconduct upon which disciplinary action is based. See Trevisani v. Department of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A physician may not be disciplined for an offense not charged in the complaint. In this case, the

    complaint charged Appellant with failing to properly document certain records and failing to create or complete certain documents. The complaint did make reference to [S]ection 458.331(1)(m), Florida Statutes, but it did not contain any specific factual allegations that Appellant failed to retain possession of the medical records. The single reference to the statute without supporting factual allegations was not sufficient to place Appellant on notice of the charges against him.")(citations omitted).

78. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the charging instrument] to have been violated." Delk, 595 So. 2d at 967. In deciding whether "the statute or rule claimed [in the charging instrument] to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the licensee. See Djokic v. Department of Business and Professional Regulation, Division of Real Estate, 875 So. 2d 693, 695 (Fla. 4th DCA 2004); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

    Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

79. In those cases where the proof is sufficient to establish that the licensee committed the violation(s) alleged

    in the charging instrument and that therefore disciplinary action is warranted, it is necessary, in determining what disciplinary action should be taken against the licensee, to consult the Board's "disciplinary guidelines," as they existed at the time of the violation(s). See Parrot Heads, Inc. v.

    Department of Business and Professional Regulation, 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is bound by its own rules . . . creat[ing] guidelines for disciplinary penalties."); and Orasan v. Agency for Health Care Administration, Board of Medicine, 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)("[T]he case was properly decided under the disciplinary guidelines in effect at the time of the alleged violations.").

80. At all times material to the instant case, the Board's "disciplinary guidelines" have been set forth in Florida Administrative Code Rule 61J1-8.002. The version of Florida Administrative Code Rule 61J1-8.002 in effect at the time of the violations alleged in the Administrative Complaint provided, in pertinent part, as follows:

    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. . . .

       
       

    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):

       
       

       * * *

       
       

       1. 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.

          
          

       2. Section 475.624(15), F.S. Has failed or refused to exercise reasonable diligence in developing or preparing an appraisal report- 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.

       
       

       * * *

       
       

       (4)(a) When either the petitioner or respondent is able to demonstrate aggravating or mitigating circumstances to the Board by clear and convincing evidence, the Board shall be entitled to deviate from the above guidelines in imposing discipline upon a licensee. . . .

       
       

       (b) Aggravating or mitigating circumstances may include, but are not limited to, the following:

       
       

       1. The degree of harm to the consumer or public.

          
          

       2. The number of counts in the administrative complaint.

          
          

       3. The disciplinary history of the licensee.

          
          

       4. The status of the licensee at the time the offense was committed.

          
          

       5. The degree of financial hardship incurred by a licensee as a result of the imposition of a fine or suspension of the license.

          
          

       6. Violation of the provision of Part II of Chapter 475, F.S., wherein a letter of

       guidance as provided in Section 455.225(3), F.S., previously has been issued to the licensee.

       
       

81. The Administrative Complaint issued in the instant case, as amended, alleges that, in connection with the development and communication of her appraisal of the Subject Property, Respondent violated: Section 475.624(15), Florida Statutes (Count One); the Conduct Section of the Ethics Rule of USPAP (2006) and therefore also Section 475.624(14), Florida Statutes (Count Two); the Competency Rule of USPAP (2006) and therefore also Section 475.624(14), Florida Statutes (Count Three); the Scope of Work Rule of USPAP (2006) and therefore also Section 475.624(14), Florida Statutes (Count Four); Standards Rule 1-1(a), (b), and (c) of USPAP (2006) and therefore also Section 475.624(14), Florida Statutes (Count Five); Standards Rule 1-2(h) of USPAP (2006) and therefore also Section 475.624(14), Florida Statutes (Count Six); Standards Rule 1-4(a) of USPAP (2006) and therefore also Section 475.624(14), Florida Statutes (Count Seven); Standards Rule 2- 1(a) and (b) of USPAP (2006) and therefore also Section 475.624(14), Florida Statutes (Count Eight); and Standards Rule 2-2(b)(vii), (viii) and (ix) of USPAP (2006) and therefore also Section 475.624(14), Florida Statutes (Count Nine).

82. At all times material to the instant case, Section 475.624(15), Florida Statutes (which is referenced in Count One

    of the Administrative Complaint) has authorized the Board to take disciplinary action against a Florida-certified residential real estate appraiser who "[h]as failed or refused to exercise reasonable diligence in developing an appraisal or preparing an appraisal report."

83. "There is no statute, rule, or USPAP standard that defines 'reasonable diligence.'" Department of Business and Professional Regulation, Division of Real Estate v. Guilfoyle, No. 07-0683PL, 2007 Fla. Div. Adm. Hear. LEXIS 469 *13 (Fla. DOAH August 22, 2007)(Recommended Order). It was therefore incumbent upon Petitioner, as part of its burden of proving that Respondent deviated from the required standard of diligence in violation of Section 475.624(15), Florida Statutes, to present "competent evidence . . . from a person with sufficient insight into what constitutes reasonable diligence on the part of a certified [residential] real estate appraiser when developing an appraisal or in preparing an appraisal report" under the circumstances that Respondent faced in the instant case. Department of Business and Professional Regulation, Division of Real Estate v. Harrison, No. 06-3387PL, 2007 Fla. Div. Adm. Hear. LEXIS 315 *24-25 (Fla. DOAH May 30, 2007)(Recommended Order); Department of Business and Professional Regulation, Division of Real Estate v. Catchpole, No. 06-3389PL, 2007 Fla. Div. Adm. Hear. LEXIS 316 *22-23 (Fla. DOAH May 30,

    2007)(Recommended Order); and Department of Business and Professional Regulation, Division of Real Estate v. Price, No. 06-3720PL, 2007 Fla. Div. Adm. Hear. LEXIS 249 *26-27 (Fla. DOAH

    May 3, 2007)(Recommended Order); see also McDonald v. Department

    
    

    of Professional Regulation, 582 So. 2d 660, 670 (Fla. 1st DCA 1991)(Zehmer, J., specially concurring)("[W]here the agency charges negligent violation of general standards of professional conduct, i.e., the negligent failure to exercise the degree of care reasonably expected of a professional, the agency must present expert testimony that proves the required professional conduct as well as the deviation therefrom."); and Purvis v.

    Department of Professional Regulation, Board of Veterinary

    
    

    Medicine, 461 So. 2d 134, 136 (Fla. 1st DCA 1984)("Section 474.214(1)(q), Florida Statutes, sets forth 'negligence, incompetency or misconduct, in the practice of veterinary medicine' as a ground for disciplinary action. The parties to this appeal have treated 'negligence' and 'incompetency' as meaning a failure to comply with the minimum standard of care or treatment required of a veterinarian under the circumstances.

    We accept that construction of this penal statute. Unlike a charge of violating a statute or rule under section 474.214(1)(g), which requires no proof of a standard of care, the charge against Dr. Purvis necessarily required evidentiary proof of some standard of professional conduct as well as

    deviation therefrom. . . . [T]he Board never introduced any evidence at the administrative hearing to show the appropriate standard of care which it contends Dr. Purvis failed to meet. The Board introduced no expert testimony, no statute, no rule, nor any other type of evidence to establish the appropriate standard of care or that Dr. Purvis fell below that standard."). Petitioner presented such evidence in the instant case through the expert testimony of Mr. Spool; however, Respondent's expert witness, Ms. DeFonzo, also testified regarding the matter, and her testimony (which the undersigned has credited) effectively rebutted Mr. Spool's testimony to the contrary.

84. At all times material to the instant case, Section 475.624(14), Florida Statutes (which is referenced in Counts Two through Nine of the Administrative Complaint) has authorized the Board to take disciplinary action against a Florida-certified residential real estate appraiser who "[h]as violated any standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice [USPAP]."

85. The 2006 version of USPAP (USPAP (2006)) was in effect at the time of the violations alleged in Counts Two through Nine of the Administrative Complaint in the instant case.

86. The Conduct Section of the Ethics Rule of USPAP (2006) (which is referenced in Count Two of the Administrative

    Complaint) provided as follows:

    
    

    An appraiser must perform assignments ethically and competently, in accordance with USPAP and any supplemental standards agreed to by the appraiser in accepting the assignment. An appraiser must not engage in criminal conduct. An appraiser must perform assignments with impartiality, objectivity, and independence, and without

    accommodation of personal interests.

    
    

    In appraisal practice, an appraiser must not perform as an advocate for any party or issue.

    
    

    An appraiser must not accept an assignment that includes the reporting of predetermined opinions and conclusions.

    
    

    An appraiser must not communicate assignment results in a misleading or fraudulent manner. An appraiser must not use or communicate a misleading or fraudulent report or knowingly permit an employee or other person to communicate a misleading or fraudulent report.

    
    

    An appraiser must not use or rely on unsupported conclusions relating to characteristics such as race, color, religion, national origin, gender, marital status, familial status, age, receipt of public assistance income, handicap, or an unsupported conclusion that homogeneity of such characteristics is necessary to maximize value.

    
    

87. The Competency Rule of USPAP (2006) (which is referenced in Count Three of the Administrative Complaint) provided as follows:

    Prior to accepting an assignment or entering into an agreement to perform any assignment, an appraiser must properly identify the

    problem to be addressed and have the knowledge and experience to complete the assignment competently; or alternatively, must:

    
    

    1. disclose the lack of knowledge and/or experience to the client before accepting the assignment;

       
       

    2. take all steps necessary or appropriate to complete the assignment competently; and

       
       

    3. describe the lack of knowledge and/or experience and the steps taken to complete the assignment competently in the report.

    
    

88. The Scope of Work Rule of USPAP (2006) (which is referenced in Count Four of the Administrative Complaint) provided as follows:

    For each appraisal, appraisal review, and appraisal consulting assignment, an appraiser must:

    
    

    1. identify the problem to be solved;

       
       

    2. determine and perform the scope of work necessary to develop credible assignment results; and

       
       

    3. disclose the scope of work in the report.

    
    

    An appraiser must properly identify the problem to be solved in order to determine the appropriate scope of work. The appraiser must be prepared to demonstrate that the scope of work is sufficient to produce credible assignment results.

    Problem Identification

    
    

    An appraiser must gather and analyze information about those assignment elements that are necessary to properly identify the appraisal, appraisal review or appraisal consulting problem to be solved.

    Scope of Work Acceptability

    
    

    The scope of work must include the research and analyses that are necessary to develop credible assignment results.

    
    

    An appraiser must not allow assignment conditions to limit the scope of work to such a degree that the assignment results are not credible in the context of the intended use.

    
    

    An appraiser must not allow the intended use of an assignment or a client's objectives to cause the assignment results to be biased.

    
    

    Disclosure Obligations

    
    

    The report must contain sufficient information to allow intended users to understand the scope of work performed.

    
    

89. Standards Rules 1-1(a), (b), and (c), 1-2(h), and 1- 4(a) of USPAP (2006) (which are referenced in Counts Five, Six, and Seven of the Administrative Complaint) provided as follows:

    STANDARD 1: REAL PROPERTY APPRAISAL, DEVELOPMENT

    
    

    In developing a real property appraisal, an appraiser must identify the problem to be solved and the scope of work necessary to solve the problem, and correctly complete research and analyses necessary to produce a credible appraisal.

    Standards Rule 1-1

    
    

    In developing a real property appraisal, an appraiser must:

    
    

    1. be aware of, understand, and correctly employ those recognized methods and techniques that are necessary to produce a credible appraisal;

       
       

    2. not commit a substantial error of omission or commission that significantly affects an appraisal; and

       
       

    3. not render appraisal services in a careless or negligent manner, such as by making a series of errors that, although individually might not significantly affect the results of an appraisal, in the aggregate affects the credibility of those results.[14]

    
    

    * * * Standards Rule 1-2

    In developing a real property appraisal, an appraiser must:

    
    

    * * *

    
    

    (h) determine the scope of work necessary to produce credible assignment results in accordance with the SCOPE OF WORK RULE.

    
    

    * * * Standards Rule 1-4

    In developing a real property appraisal, an appraiser must collect, verify, and analyze all information necessary for credible assignment results.

    
    

    (a) When a sales comparison approach is necessary for credible assignment results, an appraiser must analyze such comparable

    sales data as are available to indicate a value conclusion.

    
    

    * * *

    
    

90. Standards Rules 2-1(a) and (b) and 2-2(b)(vii), (viii), and (ix) of USPAP (2006) (which are referenced in Counts Eight and Nine of the Administrative Complaint) provided as follows:

    STANDARD 2: REAL PROPERTY APPRAISAL, REPORTING

    
    

    In reporting the results of a real property appraisal, an appraiser must communicate each analysis, opinion, and conclusion in a manner that is not misleading.

    
    

    Standards Rule 2-1

    
    

    Each written or oral real property appraisal report must:

    
    

    1. clearly and accurately set forth the appraisal in a manner that will not be misleading;

       
       

    2. contain sufficient information to enable the intended users of the appraisal to understand the report properly; and

    
    

    * * * Standards Rule 2-2

    Each written real property appraisal report must be prepared under one of the following three options and prominently state which option is used: Self-Contained Appraisal Report, Summary Appraisal Report, and Restricted Use Appraisal Report.

    
    

    * * *

    (b) The content of a Summary Appraisal Report must be consistent with the intended use of the appraisal and, at a minimum:

    
    

    * * *

    1. summarize the scope of work used to develop the appraisal;

       
       

    2. summarize the information analyzed, the appraisal methods and techniques employed, and the reasoning that supports the analyses, opinions and conclusions; exclusion of the sales comparison approach, cost approach, or income approach must be explained;

       
       

    3. state the use of the real estate existing as of the date of value and the use of the real estate reflected in the appraisal; and, when an opinion of highest and best use was developed by the appraiser, summarize the support and rationale for that opinion;

    
    

    * * *

    
    

91. Petitioner failed to present clear and convincing evidence establishing that Respondent committed any of the statutory and USPAP (2006) violations alleged in Counts One through Nine of Administrative Complaint, as amended, in any of the ways described in the Administrative Complaint's "Essential Allegations of Material Fact," to wit: by undertaking a "commercial [appraisal] assignment" she was not qualified to perform, without disclosing to Affordable her lack of qualification (as alleged in numbered paragraphs 11 and 12); by "report[ing] the Subject Property as a single family residence" (as alleged in numbered paragraph 13); by "stat[ing] incorrect

    neighborhood boundaries" in the Report (as alleged in numbered paragraph 13A.); by "recit[ing] [in the Report] a contract date of 4/2007 for a $590,000 sale [of the Subject Property] to borrower Ortega," when "the contract maintained in Respondent's work file . . . revealed a date of May 11, 2007, after the effective date of the Report" (as alleged in numbered paragraph 13B.); by "fail[ing] to note or explain discrepancies between the Report and available public records and/or occupant accounts regarding zoning, number of bedrooms/bathrooms, one versus two story, and commercial use" (as alleged in numbered paragraph 13C.); or by using "single family residence Comparable Sales," "[n]one of [which] were located in the Subject Property's defined market area" (as alleged in numbered paragraphs 13D. and 13E).15

92. Petitioner's having failed to meet its burden of presenting such evidence, the Administrative Complaint must be dismissed in its entirety.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board issue a Final Order finding the record evidence insufficient to support a finding of Respondent's guilt of any of the counts of the Administrative

Complaint and, based upon such finding, dismissing the Administrative Complaint in its entirety.

DONE AND ENTERED this 28th day of January, 2010, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 28th day of January, 2010.

ENDNOTES

1 All references in this Recommended Order to statutory provisions found in Chapter 120, Florida Statutes, are to the 2009 version of these provisions.

2 All references in this Recommended Order to statutory provisions found in Chapter 475, Florida Statutes, are to the 2006 version of these provisions.

3 Petitioner paid Mr. Spool a fee for giving his expert testimony. Ms. DeFonzo, on the other hand, voluntarily testified for Respondent pro bono. She credibly explained, during her testimony that she was doing so to "giv[e] back to the industry that's been very good to [her]."

4 It is unclear from the evidentiary record whether this "gentleman" was Mr. Perez, the owner of the Subject Property.

5 Respondent did not take any photographs of the interior of the residence (nor was she under any professional obligation to do so).

6 At no time during her visit did Respondent see room numbers posted on doors, nor did she see a bathroom with more than one toilet in it.

7 Respondent's work file contains no other written contract for the purchase and sale of the Subject Property.

8 Whether there was an earlier version of this written contract that was in effect at the time of the issuance of the Report, the evidentiary record does not reveal.

9 See, e.g., Connally v. General Construction Co., 269 U.S. 385,

395 (1926)("The word 'neighborhood' is quite as susceptible of variation as the word 'locality.' Both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles. The case last cited held that a grant of common to the inhabitants of a certain neighborhood was void because the term 'neighborhood' was not sufficiently certain to identify the grantees.")(citations omitted); Keech v. Joplin, 157 Cal. 1, 11-12 (Cal. 1909)("The term 'neighborhood' describes a territory of indefinite size and without fixed limits. What one person would consider a single community or neighborhood, another might believe to embrace two or more communities or neighborhoods."); and Williams v. Liquor Control Commission, 175 Conn. 409, 412 (Conn. 1978)("Neighborhood . . . is a . . . . flexible and imprecise concept.").

10 The Administrative Complaint did not contain any specific allegation regarding the "superior[ity]" of the "comparables'" location, but Mr. Spool addressed this matter in his testimony. He testified that "these comparable sales [were] in a superior area." There was no objective market data presented to support this view, however, and Mr. Spool conceded that this was "just [his] opinion."

11 "The term[] 'market area' . . . [is] vague." Glower v. Orthalliance, Inc., 337 F. Supp. 2d 1322, 1337 (N.D. Ga. 2004).

12 No such individuals were named in the Report.

13 The Administrative Complaint contains no allegations of post- Report wrongdoing on Respondent's part (including any

allegations related to the additional analysis conducted by Respondent, at Affordable's request, two months after the development and communication of the Report).

14 In the "comment" to Standards Rule 1-1(b), it is noted that "[p]erfection is impossible to attain, and competence does not require perfection."

15 The Board may take disciplinary action against Respondent in the instant case based only on these factual grounds pled in the Administrative Complaint, and no others. See Trevisani, 908 So. 2d at 1109; Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)("To the extent the final order finds appellant guilty of violating sections 627.4085(1) and 627.8405, Florida Statutes (1993), however, it must be reversed. While evidence came in which might well support the recommended order's findings that appellant acted in violation of sections 627.4085(1) and 627.8405, Florida Statutes (1993), the Department never pleaded facts that constituted violations of section 627.4085(1) or 627.8405, Florida Statutes (1993). Even though the administrative complaint contained references to these statutory provisions, it did not allege any act or omission in violation of either provision. As to these putative violations, the administrative complaint did not afford "reasonable notice to the licensee of facts or conduct which warrant' disciplinary action, as required by . . . [S]ection 12.60(5), Florida Statutes, . . . . Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint"); and Holt v. Department of Children and Family Services, No. 06-1978, 2006 Fla. Div. Adm. Hear. LEXIS 604 *13 (Fla. DOAH December 26, 2006)(Recommended Order)("The scope of this proceeding is limited to the factual grounds and violations alleged in the notice of denial. Petitioner cannot find Respondent guilty of a charged violation based on evidence of grounds not specifically alleged in the notice of denial.").

COPIES FURNISHED:

Donna Christine Lindamood, Esquire Senior Attorney

Department of Business and Professional Regulation

400 West Robinson Street, N#802 Orlando, Florida 32801-1900

John O. Sutton, Esquire Alexander Pastukh, Esquire Jamerson & Sutton LLP

2655 Le Jeune Road, Penthouse II Coral Gables, Florida 33134

Joni Herndon, Chair

Real Estate Appraisal Board Department of Business and

Professional Regulation

400 West Robinson Street, N#801 Orlando, Florida 32801

Reginald Dixon, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 09-004043PL

Orders for Case No: 09-004043PL