The Issue The issues in this case are as follow: Did Respondent violate Section 475.25(1)(b), Florida Statutes, by representing to Laverne Hahn that he would rent his house to her if she sold her house, representing to Ms. Hahn that he would deliver certain papers to her attorney, and representing to Ms. Hahn that the closing on her house would not occur until after February 15, 1981? Did Respondent violate Section 475.25(1)(d), Florida Statutes, by failing to deliver survey, abstract and title insurance policy documents to Ms. Hahn or her attorney?
Findings Of Fact At all times relevant hereto, the Respondent, Allan R. Heuton, held real estate salesman license #0313305 Assued by the Board of Real Estate (now Florida Real Estate Commission). At all times relevant hereto, Respondent was registered as a salesman with Hugh Anderson Real Estate, Inc., at 2631 East Oakland Park Boulevard, Fort Lauderdale, Florida 33339. Respondent listed with his employer, Hugh Anderson Real Estate, Inc., Laverne Hahn's offer to sell her residence and advised Ms. Hahn at that time that upon the sale of her residence she could rent his residence for a period of six months at the rate of $300 per month. In reliance on Respondent's statement, Ms. Hahn proceeded to sell her residence and made no other arrangements for a place to live, expecting to move into Respondent's house upon closing as per their agreement. (Petitioner's Exhibit 2, Pages 5 and 8.) Respondent testified to the events surrounding the transaction which gave rise to the Administrative Complaint. The Board presented the deposition of Ms. Hahn taken in Lakeland, Florida. Respondent admitted that he had advised Ms. Hahn it was not unusual to have closings delayed 60 days, and did offer and stood ready to rent his house to Ms. Hahn. Respondent testified that he did not recall picking up any documents from Ms. Hahn, but that had he done so it was his normal business practice to immediately deliver the documents to the attorney handling the closing. Ms. Hahn's deposition reflects that she could not locate the Respondent although she attempted to contact him through his broker's office. This was the reason she could not rent his house. Respondent testified that Ms. Hahn never asked to rent his house. Respondent testified that on January 14, 1981, the day after his birthday, he was suddenly taken ill and had to have emergency surgery in the early morning hours of that day. Respondent's testimony was corroborated by the testimony of Sheilah Kirk, who testified that she visited Respondent in the hospital on January 14 or 15, 1981, and that he was recovering from surgery at that time. Respondent testified that he was hospitalized for more than one week. Respondent testified that he was visited by the manager of the brokerage office for which he worked. It is hardly credible that Ms. Hahn could not find a man who was sick in a hospital for more than one week and whose whereabouts were known to his brokerage office. Wherefore, the Hearing Officer disregards the deponent's testimony and accepts the Respondent's testimony as the more credible concerning the rental of his house Ms. Hahn's deposition reflects that Respondent told her she would not have to move out until February of 1981. Respondent admits he told Ms. Hahn that closings were frequently delayed 60 days or more. The contract for sale originally provided for closing on December 29, 1980, a time which was changed to January 15, 1981, by persons unknown on a date unknown. The contract was signed by Ms. Hahn, who is presumed to have known its terms. Notwithstanding Respondent's statements as to delayed closings, Ms. Hahn had no basis for using such statement as a basis for planning in light of the contract which she signed. Again, Respondent's testimony is deemed to be more credible in light of the closing date provided in the contract for sale. A further conflict exists between Ms. Hahn's deposition and Respondent's testimony regarding the allegation that Respondent picked up certain documents from her but failed to deliver them. Respondent's statement that he had no recollection of the events, but that his regular practice was to deliver such documents immediately, and that since the time in question he has not discovered any such documents in his papers, is deemed credible.
Recommendation Having found that the allegations against the Respondent, Allan R. Heuton, were not proven, it is recommended that the Administrative Complaint against Respondent be dismissed. DONE and ORDERED this 22nd day of July, 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 22nd day of July, 1982. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Allan R. Heuton 6891 Forrest Street Hollywood, Florida 33024 C. B. Stafford, Executive Director Florida Real Estate Commission 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
Findings Of Fact At all times pertinent to the charges, Respondent Shanker S. Agarwal was a real estate broker in the State of Florida, having been issued License No. 0312860. At all times pertinent to the charges, Respondent Agarwal was the owner, president, and sole qualifying broker for Respondent Super Realty, Inc., a corporation registered as a real estate broker, having been issued License No. 0231636. The Respondents were properly and appropriately served with the Administrative Complaint herein and have had sufficient notice of formal proceedings in this cause, commensurate with the applicable statutes and rules governing disciplinary proceedings. On or about March 13, 1985, Jeanette and David Miller tendered an offer to purchase real estate owned by the Veterans Administration (VA). On March 18, 1985, the VA accepted their offer. Upon making the offer to purchase, Mrs. Miller entrusted to the Respondents an escrow deposit of $500. Upon the offer being accepted, and pursuant to the terms of the contract, Mrs. Miller entrusted an additional escrow deposit of $9,500 to the Respondents. The transaction was scheduled for closing on June 26, 1985. The VA prepared a deed for closing which was sent to the Respondents. At the scheduled date and time of closing, Mrs. Miller appeared prepared to pay by certified checks in her possession, the balance she understood would be due so as to effect the transfer of the new property. However, prior to actually signing the closing papers at the scheduled date and time of closing, she discovered that an extra $6,000 had been added to the closing documents. That amount involved a mortgage with a balloon payment to Respondent Agarwal's wife and one or more mortgages or liens placed upon Mrs. Miller's present home. The closing documents which would have been the best evidence of fraud were not offered at hearing but adequate evidence of their unavailability was made and I accept the unrefuted testimony of Mrs. Miller concerning what she read on the closing documents at the time in question. Mrs. Miller questioned these items in the closing package. Then questioned, Respondent Agarwal first stated that Mrs. Miller should sign and he would explain when they got back to his office. When she persisted, Agarwal flew into a rage. He berated and cursed Mrs. Miller in the presence of several third parties gathered for the closing. When he called her a "bitch," Mrs. Miller was reduced to tears. Mr. Agarwal then stormed out of the room in which the closing was to be conducted. The closing was never consummated. Although still anxious to purchase the house in question, the Millers, through an attorney, demanded from Respondent Agarwal the return of their $10,000, which they understood had been placed in escrow. They sought the help of an attorney because they were unable to get any response from Agarwal despite numerous telephone calls. However, they did not ever demand the deed from Respondents. On August 5, 1986, during the investigation of this matter by the Petitioner, Investigator Anthony Nicola served upon Respondent Agarwal's wife, Pushpa Agarwal, who was present at the offices of Respondent Super Realty, Inc., a subpoena intended for and addressed to "Mr. Shanker Agarwal, c/o Super Realty, Inc." This subpoena was a Department of Professional Regulation subpoena duces tecum number A-004804 issued in Department of Professional Regulation Case No. 0153241 requesting production of "Escrow Account records relative to $500.00 deposit received from Jeanette & David Miller on March 13, 1985." It required production of these papers at another address on August 6, 1986, at 9:00 a.m. The Respondents did not respond to the subpoena. On or about October 17, 1985, the VA, upon learning of the aborted transaction, directed the Respondents to send $500 to the VA, along with a return of the deed. The VA further instructed the Respondents to return the balance of $9,500 to the Millers. The $500 demanded by the VA was in the nature of a penalty or forfeiture for having tied up the property for the intervening months since the closing had been scheduled. Respondent Agarwal notified the VA on November 16, 1985 that because there were conflicting demands on the money, he could not turn over the money or deed to the VA until the Circuit Court resolved the demands. However, neither the VA nor the Millers are aware of any legal action instigated by Respondent. Mrs. Miller, however, had instituted suit against the Respondents to recover her $10,000. No notification of doubt or conflicting demands on deposit in escrow was received by the Florida Real Estate Commission from the Respondents pursuant to Section 475.25(1)(d), Florida Statutes. To the date of formal hearing, the Respondents had never accounted for or delivered to either the VA or the Millers any part of the $10,000 nor the deed. Further, the Respondents never advised the Millers that the VA had directed them how to disburse the funds. The Millers testified they had become aware of the disbursement recommended by the VA through calls placed to the VA by them and their lawyer, that such a disbursement would have been acceptable to them, and that such a disbursement by Respondents would have resolved any dispute they had with Respondents had that disbursement been made by Respondents. Mrs. Miller testified that her lawsuit has been protracted and is yet to be resolved because Respondent Agarwal's outbursts of temper and assorted motions have resulted in rotation of three judges and in Mrs. Miller having to obtain new legal counsel, however he is aware that the VA and the Millers agree to the disbursement proposed by the VA. Respondent Agarwal also threatened to turn Mrs. Miller over to the Internal Revenue Service. Mrs. Miller does not know what this threat was intended to mean or what it was supposed to accomplish. Petitioner elected to put on no evidence in support of Counts IX and X of the Administrative Complaint.
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 Respondents guilty only on Counts I through TV of the Administrative Complaint, exacting a penalty of revocation of both licenses therefore, and dismissing Counts V through X of the Administrative Complaint. DONE AND RECOMMENDED this 28th day of July, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. COPIES FURNISHED: James R. Mitchell, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Shanker S. Agarwal c/o Super Realty, Inc. 6147 Washington Street Hollywood, Florida 33023 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Respondent, Antonio Prieto, committed the violations alleged in the Administrative Complaint involving the standard for the development of or the communication of a real estate appraisal and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, the Petitioner is the state agency charged with the responsibility of regulating persons holding real estate appraisers' licenses in Florida. At all times material to the allegations of this matter the Respondent has been a State-certified residential real estate appraiser holding license number RD0000591. On or about July 6, 1995, the Respondent prepared an appraisal report for property located at 2821 Coacoochee Street, Miami, Florida. The appraisal report completed for this property did not contain a certification page. When the Department requested Respondent's entire appraisal file for the Coacoochee property, the Respondent failed to produce a certification page in connection with the work performed for this appraisal. The Respondent acknowledged that an appraisal report without the certification page is considered incomplete. The Respondent provided no credible explanation for the failure to maintain the certification page for the Coacoochee appraisal report file. On or about September 8, 1998, the Respondent was responsible for a second appraisal report for real property located at 12695 Southwest 92nd Avenue, Miami, Florida. As of the date of the second report, the estimated value of the subject property was noted to be $395,000. In the development of the second report the Respondent acted as a supervisory appraiser to Rita Rindone, a State-registered assistant real estate appraiser. In the Respondent's presence, Ms. Rindone provided the Department with a copy of the entire work file for the second property's appraisal report. Inconsistent and incomplete information in the work file for the second property revealed errors in following USPAP standards. For example, the alleged existence of an unrecorded quit claim deed and the disparity between the subject property's listed price ($268,000) and the appraised value should have been "red flags" to the Respondent. In fact the listing was not even disclosed in the appraisal report (an error the Respondent acknowledged). As the supervisor to Ms. Rindone, the Respondent was responsible to ensure that the standards of USPAP were followed. Based upon the testimony of the expert, DeFonzo, it is determined that the Respondent's failures in connection with the second appraisal report constitute negligence, gross negligence, incompetence, or fraud. The USPAP standards require appraisers to maintain records for at least five years. Some circumstances may warrant a longer retention of records. At the minimum the Respondent should have maintained a complete work file for the relevant period of time for the Coacoochee property. The failure to make that complete file available to the Department is a violation of law. The USPAP standards require that the methodology option used in preparing an appraisal report be prominently stated. The option used for the second property was not so stated. Such failure is a violation of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Appraisal Board enter a Final Order determining the Respondent has violated Sections 475.624(14), and (15), Florida Statutes, and imposing an administrative fine in the amount of $3000.00, together with suspending the Respondent's license for a period of five years. Further, it is recommended that prior to being actively licensed, the Respondent be required to complete a continuing education course to establish familiarity with USPAP and all rules and regulations governing licensees in this state. DONE AND ENTERED this 23rd day of December, 2002, in Tallahassee, Leon County, Florida. _________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2002. COPIES FURNISHED: Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 James R. Mayfield, Esquire 18080 Palm Point Drive Jupiter, Florida 33458 Stacy N. Robinson Pierce, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N308 Orlando, Florida 32802
