The Issue The issues are whether Respondent is guilty of failing to account for and deliver a share of a real estate commission, as required by Section 475.25(1)(d)1., Florida Statutes, and, if, so, what penalty should be imposed.
Findings Of Fact At all material times, Petitioner has been a licensed real estate broker, holding license number 0314643. Petitioner does business under the name, Blue Ribbon Realty. Petitioner employs several real estate salesmen in her brokerage business. Virginia M. Poole is a licensed real estate salesman. During 1988, she was looking for a house to buy. At the time, she was working in a hotel as a cashier. While working at the hotel, Ms. Poole met Mary Asian, who was also working at the hotel. At the same time, Ms. Asian was and remains a real estate salesman working at Blue Ribbon Realty. In a period of several weeks, Ms. Asian showed Ms. Poole several houses and presented at least one offer with a small deposit. One day while driving on her own, Ms. Poole came across a house that appealed to her. At or prior to this time, Ms. Poole had placed her salesman's license with Blue Ribbon Realty. Ms. Poole negotiated a sales contract with the seller. The contract was signed by Ms. Poole and the seller on November 10, 1988. By a separate commission agreement signed the same date, the seller agreed to pay Respondent a commission equal to 3% of the sales price. The closing took place on December 14, 1988. The closing agent duly paid Respondent the sum of $2172, which represents 3% of the purchase price. Respondent cashed the check and received the proceeds thereof. Under the agreement between Ms. Poole and Respondent, Ms. Poole was to be paid one-half of all commissions that she earned for Blue Ribbon Realty. At the closing, Ms. Poole asked about her share of the commission. Refusing to pay anything to Ms. Poole, Respondent told her, "You get it any way you can." Respondent believed that Ms. Asian, not Ms. Poole, was due the salesman's share of the commission, which by agreement was one-half of the sum paid to Blue Ribbon Realty. Ms. Poole, who never listed or sold any properties for the two or three months that her license was placed with Respondent, had placed her license with another broker over ten days in advance of the December 14 closing. Under the agreement between Respondent and her salesmen, no commission was due any salesman who left Blue Ribbon Realty more than ten days prior to a closing. The reason for this policy was that much work had to be done in the ten days preceding a closing, and it was unfair to require others to perform the work while paying the salesman's share of the commission to a departed salesman. After repeated attempts to obtain payment of the $1086 due her, Ms. Poole filed a legal action against Respondent in Orange County Court. The defenses raised by Respondent apparently proved unavailing. On April 12, 1989, Ms. Poole received a final judgment in the total amount of $1197.44, including interest and costs. Although the filing date does not appear from the face of the exhibit, a Notice of Appeal was served on Ms. Poole on June 30, 1989. Subsequent attempts to recover on the judgment were unsuccessful. At this point, Ms. Poole filed a complaint with Petitioner. Respondent never requested the Florida Real Estate Commission to issue an escrow disbursement order determining who was entitled to the disputed half of the commission, never sought an adjudication of the dispute by court through interpleader or other procedure, and never submitted the matter to arbitration with the consent of the parties. The only thing that Respondent has done in this regard is to deposit the contested sum in the trust account of her attorney, apparently pending the resolution of the appeal.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of failing to account or deliver a share of a commission to one of her salesmen, issuing a written reprimand, and imposing an administrative fine in the amount of $1000. ENTERED this 23 day of May, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23 day of May, 1990. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Attorney Raymond O. Bodiford P.O. Box 1748 Orlando, FL 32802 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Respondent is a licensed real estate salesman having been issued license number 0200291. He was licensed as a real estate salesman in the employ of broker John Wesley Bridwell at all times material to these proceedings. In early 1982, Respondent came into possession of bank checks totaling $1,275 belonging to his employing broker John Bridwell and which appeared to carry the signature of Bridwell as payor. Respondent deposited these checks in various bank accounts opened and maintained by Respondent. Respondent knew the checks were stolen at the time be deposited the checks into his bank accounts. On August 11, 1982, Respondent was arrested by the Seminole County Sheriff's Department, Sanford, Florida, on the charge of depositing stolen checks with intent to defraud. Respondent confessed to this charge, and on April 15, 1983, adjudication was withheld in the Circuit Court, Seminoles County, Florida, Case No. 32-1250 CFA. Respondent was sentenced to thirty days confinement followed by ten weekends of confinement in the Seminole County Jail, ordered to make restitution of the $1,275, pay fines exceeding $1,500, and perform 200 hours of community service work.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in the three counts of the Administrative Complaint, and revoking his real estate license. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1984. COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Brian D. Rist 3181 Harbado's Ct. Apopka, Florida 32803 Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are as follows: (a) whether Respondent violated a standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice (USPAP) in violation of Section 475.624(14), Florida Statutes (1995); (b) whether Respondent failed to exercise reasonable diligence in developing an appraisal in violation of Section 475.624(15), Florida Statutes (1995); and (c) whether Respondent is guilty of culpable negligence or breach of trust in a business transaction in violation of Section 475.624(2), Florida Statutes (1995).
Findings Of Fact Petitioner is the agency charged with the duty of licensing and regulating real estate appraisers in the State of Florida. Respondent is and was at all times material hereto a state-certified general real estate appraiser, having been issued License RZ0001233 in accordance with Chapter 475, Part II of the Florida Statutes. Respondent has been appraising real property in the State of Florida since 1985 and has conducted over 5,000 appraisals. During that period of time, Respondent has not been charged with any disciplinary action or proceeding as an appraiser other than with respect to this particular case. Respondent is the sole shareholder of McCall Realty and Investment, Inc. (McCall Realty). Eighty percent of McCall Realty’s business is appraisals, while 20 percent is attributable to real estate sales, rentals and property management. Respondent is the sole appraiser in his office, but does have two trainees. Imposition of a fine or suspension of Respondent’s license would cause a great degree of financial hardship in that the Respondent and McCall Realty would have to file bankruptcy. On or about March 10, 1996, Respondent developed and communicated an appraisal report (Report) for property identified on the cover page as 5600 Bubba Lane, Milton, Florida 32570 (Subject Property) to Ward Brewer. In his Report, Respondent estimated the market value of the subject property as of February 20, 1996, as $1,095,000.00. The Report contained three separate appraisal form reports as follows: (a) an appraisal of parcel 1, an alleged 160-acre vacant land site valued at $800,000 (Appraisal 1); (b) an appraisal of parcel 2, an alleged 7-acre site with a 1,508 square-foot residence valued at $95,000 (Appraisal 2); and an appraisal of parcel 3, an alleged 25-acre vacant land site valued at $200,000 (Appraisal 3) (the Park Property). Each of the form reports indicated that Respondent was appraising a fee simple interest. On November 28, 1995, Ward Brewer called Respondent’s secretary and indicated that he needed Respondent to do an appraisal. Mr. Brewer indicated that the Subject Property was between 159 and 200 acres and owned by J. W. Hawkins. According to Mr. Brewer, there also was an alleged 25-acre park that was owned by J. W. Hawkins but leased to the State of Florida. Shortly after receiving this message from his secretary, Respondent returned Ward Brewer’s call and confirmed that Mr. Brewer wanted Respondent to appraise the property owned by J. W. Hawkins totaling between 159 to 200 acres, as well as an adjacent park owned by J. W. Hawkins and leased to the State of Florida. Also in that conversation, Mr. Brewer indicated he needed this property to be worth $1 million. In making his investigation for the appraisal, Respondent determined that the Park Property was actually owned by the State of Florida. Respondent then called Mr. Brewer and informed him that Mr. Hawkins did not own the Park Property. Mr. Brewer indicated that the owner, Mr. Hawkins, had donated the Park Property to the State, but that Mr. Hawkins was going to get it back through a reversionary interest because he was having problems with the State of Florida. Mr. Brewer then instructed Respondent to appraise the Park Property as if Mr. Hawkins owned the property in fee simple. Respondent also contacted the property owner, Mr. Hawkins, to determine Mr. Hawkins’ understanding of the reversionary interest. Mr. Hawkins confirmed that he was expecting to get the property back from the State through the reversionary interest. Respondent also inquired of the owner, Mr. Hawkins, as to the size of the property, and Mr. Hawkins indicated that it was somewhere between 150 and 200 acres. Respondent walked the Subject Property on two separate occasions. During his physical inspection of the Subject Property, Respondent walked all over the property except for the island portion. He only viewed the island from the shoreline. He then used an aerial photograph to confirm his understanding of the island. Respondent asked Mr. Brewer if he had a survey of the Subject Property. Mr. Brewer indicated that he did not have a survey. Respondent was not aware that Mr. Brewer was in the process of obtaining a survey. In fact, Appraisal 2 in the Report states that no survey was available. Additionally, the Report contains a disclaimer, which states as follows: This appraiser is not qualified to, nor does the appraisal warrant, the following: * * * 6. The actual location of its designated flood hazard or designated area without a current survey. . . . * * * It is recommended that these items and areas be checked by professionals who specialize in these various fields. It is also recommended that any and all reports prepared by others be made available to this appraiser for consideration in the appraisal process. This appraiser reserves a right of review and/or revision subject to any outside reports submitted on the property appraised. Respondent then began the process of compiling comparable sales. After receiving the Report from the Respondent, Mr. Brewer and others obtained title to a portion of the Subject Property. The purchase price for this phase of the purchase was $300,000. Mr. Brewer and his counsel had the Report and a survey before closing on the Subject Property. Neither Mr. Brewer nor his counsel provided the Respondent with a copy of the survey. Thereafter, Mr. Brewer and the other owners decided to finance the purchase of the remaining portion of the Subject Property. The bank requested Mr. R. Shawn Brantley, to prepare an appraisal of a portion of the Subject Property. Mr. Brantley valued a portion of the Subject Property as of May 2, 1997, at $380,000. Thereafter, Mr. Brantley prepared two additional appraisals of the balance of the Subject Property for $69,000 and $70,000, respectively. Accordingly, Mr. Brantley’s appraised value of the Subject Property a little more than a year after the Report was $519,000. Mr. Brewer and others completed the purchase of the remaining property by paying an additional $270,000, for a total of $570,000. Thereafter, Mr. Brewer and others filed a civil lawsuit against Respondent and McCall Realty. In a settlement of the lawsuit, Mr. Brewer and the other owners received a $300,000 settlement. According to Mr. Brewer, one-half of the settlement amount paid attorneys' fees and costs. The other half of the settlement amount was to offset their losses. Because of the disparity in the appraised values, Mr. Brantley’s client, SunTrust Bank, insisted on knowing why there was a difference in the values. Mr. Brantley subsequently prepared a Review Appraisal Report. Respondent asserts that he had developed one prior appraisal involving wetlands or property with similar characteristics. Respondent did not produce this prior appraisal as requested by Petitioner's investigator. As a result of this entire experience, the Respondent has limited his appraisal practice to single-family residential. Respondent identified the Subject Property in the Report by tax identification numbers, metes and bounds descriptions, aerial photographs and a depiction of the property on a zoning map. Tax identification numbers are found in the Report on the tax roll assessment information sheet. With regard to parcel 2, the assessor’s parcel number is identified as 35-2N-28-0000-00500-0000 on the form report itself. On parcels 1 and 3, the property is identified on the first page of each form appraisal by metes and bounds in Section 35, Township North, Range 28 West and by reference to the “attached aerial photograph.” On the aerial photograph, the Respondent wrote in 1, 2 and 3 corresponding to the separate parcel numbers that he was appraising. Additionally, the Report includes a zoning map that identifies the Subject Property with 1, 5, or 5.3, corresponding to the respective tax identification numbers for the three parcels being appraised. The tax roll assessment information sheet in the Report provides a tax identification number of 35-2N-28-0000- 00100-0000 for parcel 1. One can then go to the zoning map, which identifies parcel 1 by a no. 1 on the zoning map. Parcel is also identified in the Report as containing assessor’s parcel no. 35-2N-28-0000-00500-0000. Here again, this property can be seen on the zoning map and is depicted with a number 5. Finally, parcel 3, the Park Property, is identified as being zoned P-2 and then further identified as the property on the zoning map where the zoning is indicated as P-2. Respondent's effort to identify and describe the Subject Property is inadequate in at least two important respects. First, the Report described the property as 192 acres when it is in fact much smaller, approximately 99 acres. Correct acreage is a fundamental way to describe and identify a property. Second, the Report fails to reveal the existence of wetlands, which were readily apparent. The Report states that the alleged 160-acre tract is bordered by the Blackwater River to the East but fails to specify the following: (a) the property contains seven ponds; (b) a bayou intersects the property; and (c) over half of the property is an island surrounded by at least 50 feet of water. When reading the Report, the only way to discern these characteristics is by reference to the Report's attachments. At the very least, Respondent should have made some attempt to describe the portion of the property that is dry upland and the portion that is covered with water. Respondent did not physically walk the entire length of the island. Instead, he viewed the island across the river and then used an aerial photograph to become familiar with the island. The use of aerial photographs in some instances may be a valuable resource where an appraiser finds it impossible to penetrate every square yard of the property. In this case Respondent did not make an effort to gain access to the island or to navigate around it by boat. Mr. Brewer specifically requested that Respondent appraise the Park Property as if J. W. Hawkins owned it in fee simple. Respondent and Mr. Hawkins discussed the donation of the Park Property and the alleged reversionary interest under which Mr. Hawkins expected to get the property back. Respondent's report failed to disclose the basis of his appraisal of the Park Property. The Report did not mention that the State of Florida had any kind of interest in the land. The report did not refer to a lease or a warranty deed with a reversionary interest. In complying with Mr. Brewer's request regarding the estimated market value of the Park Property, Respondent should have made these disclosures. Respondent failed to provide an adequate analysis and overvalued the Subject Property in part because he failed to consider the impact that wetlands would have on the value of the Subject Property. Respondent did not have to be an environmental or ecological expert to know that property covered by so much water would contain wetlands. Respondent’s Report contains a statement of limitations regarding adverse conditions "such as, needed repairs, depreciation, the presence of hazardous wastes, toxic substances, etc." This statement does not refer to wetlands. The multi-purpose appraisal addendum for federally regulated transactions contained in the Report, provides as follows: ENVIRONMENTAL DISCLAIMER The value estimated is based on the assumption that the property is not negatively affected by the existence of hazardous substances or detrimental environmental conditions unless otherwise stated in this report. The appraiser is not an expert in the identification of hazardous substances or detrimental environmental conditions. The appraiser’s routine inspection and inquiries about the subject property did not develop any information that indicated any apparent significant hazardous substances or detrimental environmental conditions which would affect the property negatively unless otherwise stated in this report. It is possible that tests and inspections made by a qualified hazardous substance and environmental expert would reveal the existence of hazardous substances or detrimental environmental conditions on or around the property that would negatively affect its value. Considering the general description of the Subject Property, Respondent was remiss in not directly addressing the existence of wetlands in his Report and in not expressly stating his expertise (or lack thereof) in appraising wetland property in his statement of limitations and/or disclaimers. The Petitioner did not present the testimony of an ecological or environmental expert to establish the existence of wetlands on the Subject Property. Instead, Petitioner relied on the testimony of Mr. Brantley, who is an expert in the appraisal of wetland property. In his own appraisal performed on a portion of the Subject Property, Mr. Brantley expressly stated with respect to jurisdictional wetlands that: This appraisal is based upon the special assumption that the appraiser’s estimates regarding this matter, as set forth herein, are correct. The reader is expressly notified that the appraiser does not hold himself out to be an environmental or ecological consultant, nor a surveyor, and the reader is encouraged to employ such experts for further confirmation of the conclusions and estimates rendered herein, if they should so desire or should consider it practical to do so. Mr. Brantley went on to qualify his own appraisal further with the following language: Certain portions of the subject property consist of jurisdictional wetlands, which are subject to the rights exercised by the various environmental agencies and governments. This appraisal is subject to the special assumption that that appraiser’s estimates of the amount of area subject to environmental scrutiny is accurate. The appraiser has based these estimates upon observation of topography and wetlands species upon the property, as well as review of various soil and aerial maps. While, the appraiser is of the opinion that these estimates are reasonably accurate, he can assume no responsibility for variations that may be identified by an environmental audit and survey of lines established by an ecological expert. The reader is encouraged to consult experts in these fields for professional verification of the appraiser’s assumptions. During the hearing, Mr. Brantley admitted that he does not warrant his conclusions and assumptions regarding jurisdictional wetlands as a qualified ecologist or environmentalist. He acknowledged that the Subject Property possibly was only seasonally wet and could appear dry for as much as six months out of the year. However, Mr. Brantley's persuasive testimony leaves no doubt that Respondent should have recognized the existence of wetlands in his report and calculated their impact on the value of the Subject Property. In all three appraisals, Respondent used the sales comparison approach to determine the value of each of the three parcels. In making the comparisons, Respondent asked his administrative assistant to calculate the acreage of the Subject Property using the scale on the aerial photograph. Respondent failed to adequately calculate the area of certain comparable sales used in the Report. For example, Respondent used the wrong acreage for each of the comparable sales used in Appraisal 1, the alleged 160-acre parcel, and one comparable sale used in Appraisal 3, the Park Property. Comparable 1 for the alleged 160-acre parcel should have been closer to 51 acres instead of the 40 acres reported by the Respondent. With regard to comparable no. 2 on the alleged 160-acre parcel the acreage is closer to 38.5 acres instead of the 15 acres reported by Respondent. As for the acreage on comparable no. 3 on the alleged 160-acre parcel, the actual acreage was 551 acres and not the 303 acres reported by the Respondent. As for the acreage for comparable number 1 on parcel 3 (Park Property), the acreage was 20.4 acres rather than the 6 acres reported by the Respondent. Respondent should not have relied on the owner's assertion that the comparable property contained 6 acres when Respondent knew the tax identification card indicated 12.91 acres. Apparently, Respondent did not attempt to confirm either of these numbers by checking the deed, which indicated 20.4 acres. Respondent relied on inaccurate acreage for each comparable referenced above. The discrepancies increased the cost of comparable price per acre. The final result was a highly inflated value for the Subject Property. Respondent appraised the value of the Subject Property as $1,095,000.00 as of February 20, 1996. Petitioner’s expert, Mr. Brantley, in his own appraisal of the Subject Property, a little over a year later, valued the property at $519,000. Respondent's and Mr. Brantley's opinions of value are different. In response to questioning from the Court as to whether the removal of a levee on the Subject Property between the time the Respondent appraised the Subject Property and the time that Mr. Brantley appraised the Subject Property affected the value of the property, Mr. Brantley acknowledged that it would have decreased the value. Mr. Brantley indicated that the effect would be the approximate cost that it would take to bridge that particular area where the levee was removed. Petitioner never provided any evidence as to the exact amount or approximate cost that it would take to bridge that particular area. Accordingly, there is no evidence from which the Court can determine that there is a drastic difference in the reported value opinions. Even so, the foregoing facts are sufficient to determine that Respondent's report was misleading and inaccurate.
Recommendation Based upon the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order suspending Respondent's license for one year and imposing an administrative fine in the amount of $3,000. DONE AND ENTERED this 17th day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 17th day of March, 2004. COPIES FURNISHED: S. L. Smith, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801 Robert E. Thielman, Jr., Esquire Baker & Hostetler, LLP Post Office Box 112 Orlando, Florida 32801-0112 Jason Steele, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Virginia Weick is a real estate salesperson holding License number SL 033100 issued by the Board of Real Estate. At the time in question, Daniel Oldfather was a real estate broker licensed by the Board of Real Estate holding License number 0117082 and active broker for Sun Rentals and Management, Inc. Weick received $600 from Joseph Marian as a deposit receipt on the lease of a condominium, which she in turn immediately turned over to her broker. The contract provided specific terms regarding the approval of the tenants by a committee of the condominium board and regarding forfeiture. These provisions are as follows: In the event described premises is a condominium unit, Lessee agrees to make a sincere application for condo- minium board approval, if required. Lessee further acknowledges and agrees to abide by all rules and regulations of the condominium and a violation of said rules and regulations is a viola- tion of this Agreement. Screening fees are the responsibility of the Lessee and are non-refundable. Upon execution of this Agreement by all parties, the Agent in this trans- action shall be empowered to disburse all monies paid to it upon behalf of the Lessor less any agreed upon com- missions for services rendered. In addition thereto, the parties hereby acknowledge that upon execution of this Agreement by all parties, the Agent shall be deemed o have earned all commissions, and the parties fur- ther agree to hold the Agent free and harmless of any liability for disburse- ments of said monies in accordance with this Agreement and that Agent is not responsible for dishonored checks in any form. Parties further acknow- ledge and agree that the Agent is not responsible for the enforcement of this Agreement; or the performance of either the Lessor or the Lessee, and the condition of the property is not warranted by the Agent. Weick set up a meeting for Marian with the condominium board on January 21, 1982, at 3:30 p.m. and advised Marian of the date and time of the meeting several days prior to the meeting. Marian did not attend the meeting on January 21, although Weick was present at the meeting place and waited for Marian. She returned to the offices of Sun Rentals and Management, Inc., after the time for the appointment had passed. She advised Martin Katz, an officer of the company, that Marian had not shown. Katz advised Oldfather of the fact that Marian had not shown up for the meeting. Later that same afternoon, Oldfather received a telephone call from a Mr. Pollen, who identified himself as Marian's employer and a real estate broker. Pollen asked Oldfather what would be the result of Marian's failure to attend the meeting. Oldfather told Pollen that a second appointment could be arranged. Pollen indicated that this was not acceptable and asked what were the alternatives. Oldfather advised Pollen that Marian's failure to attend was a breach of the provisions of the contract for the potential lessee to seek the condominium board's approval, and that it could result in forfeiture of Marian's deposit. Pollen told Oldfather that this would result in legal action against Sun Rentals and Management, Inc. Oldfather advised Pollen to have Marian get in touch with him (Oldfather). Marian called Weick and requested a refund of his deposit. Weick indicated Marian would have to talk with Oldfather about a refund. Weick had no further contact with Marian. Weick performed all duties expected of a real estate salesperson as required, delivering the deposit to her broker and forming a conduit for information between Marian and her broker. Marian attempted to contact Oldfather by telephone and left messages for Oldfather, but he was unable to contact Oldfather. Oldfather attempted to call Marian at his home a day or two after the scheduled meeting. Oldfather did not attempt to call Marian as a result of the attempts by Marian to call him. Katz communicated to the owner of the condominium very shortly after January 21, 1982, that Marian had not attended the meeting with the condominium board and apparently (based on the Pollen/Oldfather conversation) did not desire to schedule another meeting with the condominium board. The owner made a demand for the $600 deposit. On January 26, 1982, prior to the next meeting of the condominium board and acting on a joint decision with Oldfather, Katz signed a check for $300 to the owner of the condominium. On February 3, 1982, Katz wrote a check for $90 to Weick and a check for $210 to Sun Rentals and Management, Inc.
Recommendation Having found that the Respondent, Virginia Weick, did not violate Section 475.25(1)(d), Florida Statutes, it is recommended that no action be taken against her, and that the Administrative Complaint against her be dismissed. Having found that the Respondent, Daniel Oldfather, is guilty of violating Section 475.25(1)(d), Florida Statutes, it is recommended that Oldfather's license be suspended for a period of 60 days. DONE and ORDERED this 4th day of June, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Post Office Box 14723 Fort Lauderdale, Florida 33302 James Curran, Esquire 200 Southeast Sixth Street, Suite 301 Fort Lauderdale, Florida 33301 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent violated Subsections 475.624(14) and 475.624(15), Florida Statutes (2005),1 and if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Ms. Pfeiffer was a certified residential appraiser licensed by the State of Florida, License No. RD3059. She first became licensed in 1998. On June 12, 2006, Ms. Pfeiffer accepted an assignment from Diane Purser to appraise her home located in Gulf Breeze, Florida. Mrs. Purser was in the midst of a divorce proceeding with her husband Mark Purser and wanted to have the appraisal to determine the market value of their home prior to a meeting with her attorney. Mrs. Purser wanted the appraisal to be expedited. Ms. Pfeiffer gave the appraisal assignment to Brian Choron, who, at that time, was a registered trainee real estate appraiser, License No. RI-10526. Ms. Pfeiffer was Mr. Choron’s supervisor. Mr. Choron went to Mrs. Purser’s home and physically inspected the home while Mr. and Mrs. Purser were present. Mr. Choron developed an appraisal report of the Purser property. Mr. Choron extracted data from appraisals of other property in the area in developing the report on the Purser property. This is not an uncommon practice in the appraisal profession. Mr. Choron sent the appraisal report to Ms. Pfeiffer for her review. Ms. Pfeiffer reviewed the report and sent it to Mrs. Purser. Ms. Pfeiffer signed the appraisal on June 15, 2006, as the appraiser. Mr. Choron did not sign the appraisal. By signing the appraisal report as the appraiser, Ms. Pfeiffer certified, among other things, that she had “performed a complete visual inspection of the interior and exterior areas of the subject property.” Additionally, she certified the following: 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 the appraisal report, I have named such individual(s) and disclosed the specific tasks performed in this appraisal report. 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 changes made to this appraisal is unauthorized and I will take no responsibility for it. On page four3 of the appraisal report, Ms. Pfeiffer stated: “Brian Choron RI10526 assisted in the research, inspection, preparation of this appraisal report.” On page 17 of the appraisal report, Ms. Pfeiffer indicated that she had inspected the property. Ms. Pfeiffer admits that she incorrectly signed the appraisal report as the appraiser, that she should have signed as the supervisory appraiser, and that Mr. Choron should have signed the appraisal report as the appraiser. The appraisal report listed the effective date of the appraisal as June 14, 2006. The final estimated value of the Purser property was listed as $275,000.00. Mr. Purser contacted Ms. Pfeiffer and was upset about some discrepancies which he perceived to be in the appraisal report. Ms. Pfeiffer and Mr. Choron developed a revised appraisal report, hereinafter referred to as the “revised appraisal.” The revised appraisal was communicated to Mrs. Purser in October 2006. The final estimated value of the property was listed the same as it was in the original appraisal, $275,000.00. The revised appraisal listed Mr. Choron as the appraiser. On page 8 of the revised appraisal, Mr. Choron signed the revised appraisal as the appraiser with a signature date of June 15, 2006. On the same page of the revised appraisal, Ms. Pfeiffer signed the revised appraisal as the supervisory appraiser with a signature date of June 15, 2006. She also indicated on that page that she had not inspected the property. On page 18 of the revised appraisal, Mr. Choron signed the revised appraisal as the appraiser with a signature date of October 20, 2006. Ms. Pfeiffer signed on the same page as the supervisory appraiser with a signature date of June 15, 2006. Ms. Pfeiffer checked boxes on page 18 of the revised appraisal, indicating that she both did and did not inspect the property. There are no issues with the valuation of the Purser property. None of the experts who testified at the final hearing found fault with the market value placed on the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. Pfeiffer guilty of violating Subsections 475.624(14) and 475.624(15), Florida Statutes, and Rule 2-3 of the USPAP; dismissing Count IX of the Amended Administrative Complaint; placing Ms. Pfeiffer on probation for two years; imposing an administrative fine of $1,000.00; and requiring Ms. Pfeiffer to complete the 15-hour USPAP course. DONE AND ENTERED this 27th day of January, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2009.
The Issue Whether the respondent committed the acts alleged in the Administrative Complaint dated June 21, 1996, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to chapters 120, 455, and 475, Florida Statutes. The Florida Real Estate Commission operates within the Department and is the entity directly responsible for licensing and disciplining those licensed under chapter 475. Section 475.02, Fla. Stat. The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Fla. Stat. Prudencio Garcia is now and was at all times material to this proceeding a licensed Florida real estate broker, having been issued license numbered 0203682. He is currently licensed as a broker-salesperson with Hamilton Realty, Inc. At all times material to this proceeding, Continental Landmark Realty, Inc., was Mr. Garcia's registered employer. Mr. Garcia has been licensed as either a real estate salesperson or a real estate broker for eighteen years, and he has not previously been the subject of a license disciplinary action. Either on or about November 1, 1994, or on or about December 1, 1994,1 a Residential Lease, an Option to Purchase, and a Contract for Sale and Purchase were executed whereby Sergio Montero and Mayte Rosabal agreed to lease real property owned by Ramon and Gladys Rodriguez for a term of six months and to purchase the property subject to the terms of the Option to Purchase. and the Contract for Sale and Purchase. Mr. Garcia solicited Mr. Montero and Ms. Rosabal for this transaction on behalf of Mr. and Mrs. Rodriguez, who needed to sell their house as soon as possible because they had purchased and moved into another home and were having trouble paying two mortgages. Mr. Garcia was acquainted with Mr. and Mrs. Rodriguez and Mr. Montero and Ms. Rosabal. The lease, option, and contract were signed at the offices of Continental Landmark Realty. Mr. Garcia signed the option and the contract on behalf of Continental Landmark Realty, which was his employer at the time. Both the option and the contract provided that Continental Landmark Realty would receive a $6,000 commission upon the sale of the property. Neither Continental Landmark Realty nor Mr. Garcia were to receive any fee or commission in connection with the lease of the subject property. Mr. and Mrs. Rodriguez expected to receive $4,000 at the time the lease, option, and contract were executed.2 Mr. Montero gave them $700 in cash at the time of execution and $800 in cash the day after the documents were executed. Mr. Montero gave Mr. Garcia the remaining $2,500 owed to Mr. and Mrs. Rodriguez, in cash. Mr. Garcia did not promptly deliver these monies to Continental Landmark Realty for deposit in the company’s escrow account. He did not promptly deliver the $2,500 to Mr. and Mrs. Rodriguez, despite their repeated requests that he do so. Rather, he claimed that he was robbed and the money taken from him.3 After Mr. and Mrs. Rodriguez threatened to take legal action against him, Mr. Garcia gave them $2,425 of the $2,500 he had received on their behalf.4 The broker of record for Continental Landmark Realty was not aware of the transaction between Mr. and Mrs. Rodriguez and Mr. Montero and Ms. Rosabal until Mrs. Rodriguez went to her office and complained about not having received the $2,500 from Mr. Garcia. The evidence is sufficient to establish that Mr. Garcia was acting as an agent of Continental Landmark Realty in connection with the subject real estate transaction, that he received monies in connection with the transaction and failed to deliver them promptly to Continental Landmark Realty, and that he committed a breach of trust by failing to deliver the monies promptly to Mr. and Mrs. Rodriguez, the parties to the real estate transaction entitled to receive them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Prudencio Garcia guilty of violating section 475.25(1)(b), (e), and (k), Florida Statutes (1995), and rule 61J2-14.009, Florida Administrative Code, and Suspending Mr. Garcia’s real estate broker’s license for a period of one (1) month; Following the suspension, placing Mr. Garcia on probation for a period of one (1) year with a condition of probation that he successfully complete a thirty-hour broker management course during the term of probation; and Imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 18th day of March, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1997.
Findings Of Fact The Respondent is a licensed real estate broker and salesman. In proceedings on January 9, 1981, in the Circuit Court, 17th Judicial Circuit in Case No. 80-8846 CF, and in the absence of the Respondent, Respondent's Counsel first indicated to the judge that he was entering a plea of no contest for the Respondent but changed that plea to one of guilty of misdemeanor trespass (Section 810.08) on the basis of the entry of an adjudication withheld. The court noted the Respondent's authorization of his Counsel to enter the plea. The court withheld adjudication and placed the Respondent on probation for six months, and assessed as a special condition of the probation $150 in court costs and restitution in the amount of $100.
Recommendation The Board has not demonstrated a violation of Section 475.25(1)(f), Florida Statutes, by the Respondent. Therefore, the charges should be dismissed, and no disciplinary action should be taken against Respondent based upon the allegations contained in the Administrative Complaint. DONE and ORDERED this day 4th of June, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Post Office Box 14723 Fort Lauderdale, Florida 33302 James Curran, Esquire 200 South East Sixth Street, Suite 301 Fort Lauderdale, Florida 33301 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent had failed to maintain records for at least five years, committed culpable negligence in the preparation of an appraisal report, or failed to exercise reasonable diligence in the preparation of an appraisal report.
Findings Of Fact Respondent has been a certified residential real estate appraiser since 1998. He holds license RD-3106, and his license has not previously been disciplined. He has worked in the real estate appraisal business since high school and full-time for the past 12 years. In November 2000, Respondent was employed by Southeast Property Appraisers as an independent contractor. Customers of Southeast Property Appraisers would contact the company and request a residential real estate appraisal. With a secretary often making the assignment, Southeast Property Appraisers would then subcontract the work to an independent contractor, such as Respondent. Upon completion of the appraisal report, Southeast Property Appraisers would split the fee with the independent contractor, pursuant to their contractual arrangement. In November 2000, Countryside Mortgage contacted Southeast Property Appraisers and requested a residential appraisal for a residence located in Delray Beach. The secretary assigned the file to Respondent, who undertook the responsibility of preparing the necessary appraisal report. Respondent researched the subject property, but found it a difficult assignment in one respect: the 3407 square-foot, one-story, single-family residence comprises seven bedrooms. Single-family residences with seven bedrooms are not present in great numbers in the vicinity of the subject property. On November 20, 2000, Respondent issued the appraisal report, under his own name. The appraisal report estimates the value of the subject property as $188,000, based primarily on the sales comparison approach. The report states that it did not use the income approach because of insufficient sales/rental data. The appraisal report identifies the name of the borrower and lists the sales price of $188,000, although the report cautions that the appraiser did not receive a copy of the sales contract. The report lists, under a table on the form, 18 rooms by type, including seven bedrooms and three bathrooms. Immediately beneath this table, the report states that the subject property consists of 13 rooms: seven bedrooms and three bathrooms. Both the table and the information beneath the table agree that the total area of the house is 3407 square feet. The appraisal report analyzes three comparables. According to the report, Comparable 1 is eight blocks northwest, Comparable 2 is eight blocks southeast, and Comparable 3 is one mile northeast. Petitioner's problems with the appraisal report concern two matters. First, the report omits any mention that Comparable 1 abuts a canal and is within a gated community. However, Respondent observed the canal, which is a narrow waterway leading into a nearby, small lake. Respondent reasonably determined that the canal did not warrant mention because it did not affect the sales price of the comparable. Respondent underwent a similar process with the gate, which the community association no longer manned or operated, at least during the daylight hours. Therefore, this omission from the report was also reasonable. Second, Comparable 3 is about one mile from the subject property, not more than two miles as alleged. Driving distance is 1.6 miles, and, as the crow flies, the distance is almost exactly one mile. According to Petitioner's expert witness, the proper way to measure the distance between comparables is as the crow flies. Petitioner's witnesses claimed several other deficiencies with the work papers: no copy of the assignment sheet from the customer indicating the scope of the appraisal, no copy of the purchase contract, no notes of conversations with parties to the documents, no copy of the signed, finished appraisal report, and no documentation of the search for comparables. Respondent's work files in fact lacked these documents. Petitioner's remaining issue with Respondent is that he did not retain his work file after he left Southeast Property Appraisal, which was shortly after the completion of the subject appraisal report. However, Respondent contacted Southeast Property Appraisal and cooperated with Petitioner's investigator in obtaining these materials within a reasonable period of time.
Recommendation It is RECOMMENDED that the Florida Real Estate Appraisal Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of August, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 18th day of August, 2005. COPIES FURNISHED: Jay Small, Chairman Florida Real Estate Appraisal Board Department of Business an Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32808-1900 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Alfonso Santana, Senior Attorney Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N801 Orlando, Florida 32802 Donald S. Rose, Attorney 622 Courthouse Tower Building 44 West Flagler Street Miami, Florida 33130
Findings Of Fact On December 6, 1979, Respondent was employed by The Keyes Company as a sales associate in its Cutler Ridge branch office and was so employed until March 12, 1981. Pursuant to a power of attorney, Andrew Kasprik manages property owned by his father and located at 9604 Sterling Drive, Miami, Florida. Kasprik and Respondent met in October, 1980, and entered into an oral agreement whereby Respondent would obtain a tenant for the house on Sterling Drive and Kasprik would pay him one-half a month's rent for his services. On October 6, 1980, Respondent leased Kasprik's property to John and Debbie Protko on a month-to-month basis at a rent of $650 per month, and Kasprik paid Respondent the agreed-upon commission of $325. The Keyes Company has no record of a listing for rental of property at 9604 Sterling Drive during October, 1980, and Respondent did not turn in to Keyes any funds received by him as a commission or fee for the rental of that property. Prior to March, 1981, Kasprik never dealt directly with Keyes and never signed a listing agreement with Keyes for the rental of the Sterling Drive property. By Notice of Hearing dated November 17, 1981, Respondent was given notice of the hearing in this cause as required by the applicable statutes and rules. Respondent's copy of that notice was not returned, and the undersigned has received no communication from Respondent regarding his attendance or nonattendance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Earnest Kelley guilty of the allegations in the Administrative Complaint filed against him and suspending Earnest Kelley's real estate salesman's license for a period of six months. RECOMMENDED this 19th day of February, 1982, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February,1982 COPIES FURNISHED: Theodore J. Silver Esquire 9445 Bird Road Miami, Florida 33165 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Earnest Kelley 8640 S.W. 112th Street Miami, Florida 33156 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
