Whitham used comparable sales 4 through 6 to perform a separate analysis of the 17-acre parcel ("subject 2") that was not connected to the riverfront site.
Both subjects 1 and 2 were vacant parcels zoned Planned Development Residential (PDR). Whitham chose six comparable sales that were vacant and physically possible for residential use like the subject parcels at the time of the appraisal in 2006.
When Whitham evaluated subject 1, he found it difficult to find waterfront or water view properties to compare to subject 1. As a result, he made proper adjustments to account for the dissimilarities he encountered under the substitution principle in order for the comparable sales to conform.
Whitham determined comparable sale 1 was legally permissible because the zoning was Planned Development Projects ("PDP"), which provided for development either as residential or commercial. He further determined the property was financially feasible as the rate of growth in the market for residential property was at its peak.
When Whitman used the substitution principle with comparable sale 1, he focused on two primary considerations: utility and desirability. Since the goal was a potential development and investment, not a completed developer product, Whitham compared the two with adjustments. When looking at the attributes, Whitham determined that traffic was an easy drive to
either property and neither was particularly visible from a roadway.
Comparable sale 2 was a small site zoned Planned Development Mixed Use, which allows for blending of residential and commercial uses within the same development. Whitham researched the commercial possibilities of comparable sale 2 in 2006, and the direction of the development had not been established. As a result, he concluded that it was financially feasible for residential.
Comparable sale 3's direction of development also had not been finalized when Whitham did his appraisal and it was zoned for PDP.
After finishing his analysis, Whitham was able to conclude that comparable sales 1 through 3 were financially feasible. Whitham made the determination based on the tenor of the market being good for residential property, which each comparable could become. He then concluded that it was therefore financially feasible for each comparable site to be developed as residential, which would have been both financially feasible and maximally productive.
Whitham evaluated subject 2 against comparable sales without waterfronts, water access, and water views. Comparable sales 4, 5, and 6 were either zoned General Agriculture District or Agricultural, which both allowed for general agricultural-
related, normal activity and co-existence of other uses generally consistent with agricultural activities including rural residential development.
Whitham used comparable sales 4, 5, and 6, since all had proper zoning, which meant residential was allowed like the subject 2 parcel and met the physically possible and legally permissible portion of the tests. Further, each was financially feasible since the strength in the market at the time was residential sites, which would provide for maximal productivity.
Whitham summarized how each of the six comparable sales satisfied the four test criteria for the direct sales comparison approach in his appraisal report land sales summary and grid.5
On or about January 28, 2006, after completing his appraisal analysis, Respondent signed and communicated the appraisal report, for the property commonly known as ±4.76, ±17, and ±0.6 Acre Parcels UAs Vacant, Mill Creek Road, Bradenton Florida 34212.
Whitman's report concluded in the Highest and Best Use section of the appraisal report that "Our assessment of highest and best use for the subject is: As Vacant: Residential development in accordance with the PDR zoning."
In 2009, after a complaint was filed by Ronald Carr, the Department opened an investigation on Whitham regarding the
January 2006 appraisal report. Dennis Black ("Black") was hired as an expert State Certified General Real Estate Appraiser to review Whitham's appraisal report.
As a result of Black's conclusions on or about
October 27, 2009,6 the Department charged Whitham in a four-count Administrative Complaint.
The Charges:
In Count I, Petitioner charges Respondent with having failed to exercise reasonable diligence in developing an appraisal report in violation of section 475.624(15), Florida Statutes.
In Count II, Petitioner charges Respondent with fraud, misrepresentation, concealment, culpable negligence or breach of trust in any business transaction in violation of section 475.624(2).
In Count III, Petitioner charges Respondent with failing to retain, for at least five years, original or true copies of any contracts engaging the appraiser's services, appraisal reports, and supporting data assembled and formulated by the appraiser in preparing appraisal reports in violation of section 475.629.
In Count IV, Petitioner charges Respondent with making misleading, deceptive, or fraudulent representations in or
related to the practice of the licensee's profession in violation of section 455. 227(1)(a).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to sections 120.569 and 120.57(1),(2010).
Section 475.624(15), under which Respondent has been charged in Count I, sets forth the acts for which the Petitioner may impose discipline. This statute provides, in pertinent part:
The board may deny an application for registration 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 certificate holder:
* * *
(15) Has failed or refused to exercise reasonable diligence in developing an appraisal or preparing an appraisal report.
Section 475.625(2), under which Respondent has been charged in Count II, sets forth the acts for which the
Petitioner may impose discipline. This statute provides, in pertinent part:
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.
Section 475.629, under which Respondent has been charged in Count III, sets forth the acts for which the Petitioner may impose discipline. This statute provides, in pertinent part:
An appraiser registered, licensed, or certified under this part shall retain, for at least 5 years, original or true copies of any contracts engaging the appraiser's services, appraisal reports, and supporting data assembled and formulated by the appraiser in preparing appraisal reports.
The period for retention of the records applicable to each engagement of the services of the appraiser runs from the date of the submission of the appraisal report to the client. These records must be made available by the appraiser for inspection and copying by the department on reasonable notice to the appraiser. If an appraisal has been the subject of or has served as evidence for litigation, reports and records must be retained for at least 2 years after the trial.
Section 455.227(1)(a), under which Respondent has been charged in Count IV, sets forth the acts for which the Petitioner may impose discipline. This statute provides, in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
Making misleading, deceptive, or fraudulent representations in or related to the practice of the licensee's profession.
A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a professional license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Being penal in nature, each alleged violation "must be construed strictly, in favor of the one against whom the penalty would be imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).
Here, Petitioner seeks to discipline Respondent's license and/or to impose an administrative fine. Accordingly, Petitioner has the burden of proving the allegations charged in the Administrative Complaint against the Respondent by clear and convincing evidence. Dep't of Banking and Fin. Div. of Sec. and Investor Prot. v. Osborne Stern and Co., 670 So. 2d 932, 933-34 (Fla. 1996) (citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., 654 So. 2d 205, 207 (Fla. 1st DCA 1995).
Regarding the standard of proof, in Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:
clear and convincing evidence requires that 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 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. Id.
A licensee is charged with knowing the practice act that governs his/her license. Wallen v. Fla. Dep't of Prof'l
Reg., Div. of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).
In this matter, Petitioner has failed to meet its burden by the clear and convincing evidence standard in that Petitioner relied totally on Black's testimony to prove the allegations in this case. As delineated in Endnote five, the undersigned rejects Black's testimony as credible, which leaves the record void of any sufficient credible evidence to establish the truth of the allegations charged in the Amended Administrative Complaint in this matter.
The Amended Administrative Complaint alleges that Respondent failed to exercise reasonable diligence in developing an appraisal report. However, the record demonstrates that the data alleged to be outdated in the regional overview section of the report was only a historical overview that clearly identifies the time period with each of the categories alleged. Each of the Respondent's references is specific: between 1980 and 1995; through 1996; and in 1997. Identifying years specifically in a sentence during a time period does not mislead the reader. Further, Respondent put Venice as the wrong city for the circus location and improperly worded a sentence, which placed North Port in the wrong county. The undersigned believes that Respondent could have been more careful, but such errors
are not material to the valuation of the property. And, therefore such errors are neither a failure to exercise reasonable diligence in violation of section 475.624(15) nor a misrepresentation in violation of section 475.624(2).
In this case, the Amended Administrative Complaint also alleged that Respondent's analysis of the highest and best use for the subject property and his direct sales comparable analysis were improperly employed. However, having no evidence to the contrary, the record demonstrates that Respondent used correct methodology for the highest and best use analysis as well as the appropriate recognized methods and techniques in his direct sales comparison approach. Further, Respondent properly used adjustments in his direct sales comparison approach to account for dissimilarities he encountered so that the comparables would conform. And in doing his report, Respondent also made accurate characterizations of the subject property's attributes and the comparable sales attributes. Therefore, the record is void of credible sufficient evidence to show any misrepresentation in violation of section 475.624(2) or any misleading actions in violation of section 455.227(1)(a).
As to Count III, there is no dispute. Petitioner asserts in its Proposed Recommended Order that it is no longer addressing the charge nor asking for a finding of guilt.
