Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility and duty to prosecute violations under Chapters 455 and 475, Florida Statutes. At all time material to this proceeding, Respondent David Lloyd Ammons was a licensed real estate salesperson in the State of Florida, having been issued license number 0599760 in accordance with Chapter 475, Florida Statutes. Between June 1, 1993, and December 13, 1993, Respondent worked as a licensed real estate salesperson with Frazier & Broz Realty, Inc. In early July, 1993, Respondent sent a letter to Paul Younts of Sarasota, Florida soliciting his home as a listing. This letter contained the following statement: My track record in Real Estate: I personally market 75 to 85 homes per year! RECAP: I don't "List-Um-Forget-Um", ---I SELL 75-85 HOMES PER YEAR, (APPROXIMATELY 100 percent OF MY OWN LISTINGS!)--- Respondent did not have any real estate listings and did not sell any homes while working with Frazier & Broz Realty, Inc. Likewise, there was no evidence that Respondent had sold any homes or had any real estate listings through any other real estate broker during the period of time in question. Respondent sold many homes in Oregon during the mid 1970's while licensed as a real estate salesman in Oregon. It was these sales that Respondent contends he was referring to in the letter to Younts. Enclosed with the letter was a video, some paper work and documentation for the purpose of establishing the scope of Respondent's activities through the years. Also enclosed with the letter was Respondent's business card. Respondent's business card indicated that he was associated with "Century 21 - Frazier & Broz Realty" in Sarasota, Florida. Below the Respondent's name on the business card was the designation "Residential Energy Specialist". On the opposite side of the business card was the designation: STATE ENERGY AUDITOR FLORIDA LIC. #E-1100* The following appears on the bottom of the card: *State Law Allows Only One Active Professional License Respondent's State Energy Auditor's License No. E-1100 certified Respondent to work exclusively in the Institutional Conservation Program and could not be used to procure work in the residential sector. Furthermore, Respondent's State Energy Auditor's License No. E-1100 expired prior to 1990 and has not been renewed. Larry Frazier testified that he did not specifically remember approving Respondent's business card for printing. However, since the business card carried the "Century 21" logo, it would have required approval of Frazier & Broz Realty before being printed. Likewise, it was Larry Frazier's testimony that while he did not see the final package that was mailed to Paul Younts, he was aware of Respondent's project to get homes being sold by the owners as listings. Furthermore, Frazier testified that he had reviewed and approved the project and its contents during the time the project was being developed by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law and a review of the disciplinary guidelines set forth in Rule 60J2-24.001, Florida Administrative Code, it is recommended that the Commission enter a Final Order finding the Respondent guilty as charged in Count I and Count II of the Administrative Complaint. It is further recommended that the Commission reprimand the Respondent and require that Respondent complete a post-licensing course for salespersons as deemed appropriate by the Commission for the circumstances. RECOMMENDED this day 10th of May, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1598 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Department's Proposed Findings of Fact. Proposed findings of fact 1 through 6 and 8 are adopted in substance as modified in Findings of Fact 1 through 11. Proposed finding of fact 7 is neither relevant nor material to this proceeding. Respondent's Proposed Findings of Fact. Proposed findings of fact 1 and 3 are adopted in substance as modified in Findings of Fact 11 and 6, respectively. Proposed findings of fact 2, 4 and 5 are neither material nor relevant. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 David Lloyd Ammons, Pro se 3829 Hibiscus Street Sarasota, Florida 34232 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Centre Tallahassee, Florida 32399-0792 Ms. Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue is whether Respondent's license as a state certified general real estate appraiser should be disciplined for the reasons cited in the Administrative Complaint filed on March 5, 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1994, Respondent, James M. Milliken, Jr., was licensed as a state registered appraiser, having been issued license no. RI-0001148 by Petitioner, Department of Business and Professional Regulation, Real Estate Appraisal Board (Board). As such, Respondent could perform appraisal services under the supervision of a licensed or certified appraiser. When the events herein occurred, Respondent was employed as a registered appraiser by Gulf/Atlantic Valuation Services, Inc., in Sarasota, Florida. His supervisor was Alan C. Plush, a state certified general appraiser. After the events herein occurred, Respondent obtained his licensure as a certified general appraiser. His most recent license number is 0002351, also issued by the Board. Respondent also held a real estate license during this period of time, but it was inactive when the alleged misconduct occurred. Pursuant to a change in state law, all registered appraiser licenses automatically expired on November 30, 1994. Renewal notices were sent by the Board to each licensee approximately sixty to ninety days before that date. Unless a licensee renewed his license by the expiration date, he was unable to lawfully "operate" as an appraiser. The evidence shows that Respondent's registration expired on November 30, 1994, and it was not renewed until March 9, 1995, after Respondent had sent a check and application to the Board, and his registration was then renewed. Therefore, between December 1994 and when the license was renewed, he was not authorized to have his name appear on an appraisal report or operate as an appraiser. Respondent later applied for licensure as a certified general appraiser. As a part of that process, he was required to provide evidence of appropriate experience obtained as a registered appraiser. To establish his experience, Respondent provided, among other things, copies of two appraisals he performed in December 1994. Those appraisals have been received in evidence as Petitioner's Exhibits 4 and 5. Respondent's name is found on both documents as being one of the appraisers preparing the reports. As a part of a routine, random audit to verify Respondent's experience to qualify as a certified general appraiser, a Board analyst reviewed his file and discovered that the above two appraisals had apparently been performed when Respondent's registration had expired. This prompted an investigation. During the course of the Board investigation, a Board investigator interviewed Respondent, who acknowledged that he had performed the two appraisals in question, one dated December 9, 1994, and the other dated December 15, 1994. Thereafter, an administrative complaint was issued. At hearing, Respondent indicated that when his registration expired on November 30, 1994, he was attempting to secure a date from the Board on when he could be examined for licensure as a certified general appraiser. Because he did not want to pay a fee for both his current registration and the new licensure, he delayed sending in his registration renewal application and check. When Respondent could not get a satisfactory date for the examination, he forwarded a check to the Board in February 1995 to renew his registration. Respondent contended that he was under the impression that there was a grace period in which he could renew his registration without having his license expire. Testimony at hearing established, however, that no such grace period existed. Respondent also contended that the Board failed to prove that he prepared the reports since his signature does not appear on either document copy. However, his name, title, and license number are typed on the front page of each report, and witness Plush established that Respondent's signature would only appear on the original copy sent to the client, while copies retained by the appraiser's office are customarily unsigned. Further, his supervisor confirmed that Respondent actively participated in the two projects, and as noted above, Respondent acknowledged to an investigator that he worked on both reports. Finally, in seeking a new license, Respondent represented to the Board that he had prepared the two reports. It can be reasonably inferred from the evidence that at least a portion of the appraisal work for the two reports in question was performed by Respondent prior to November 30, 1994, when his registration was still active. Even so, the remainder of the work was completed after his registration had expired. By doing so, Respondent operated as an appraiser without being registered. Both reports make reference to the fact that they were prepared in conformity with "all regulations issued by the appropriate regulatory entities, regarding the enactment of Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989 (FIRREA)." It is fair to assume, then, that the two matters are federally related transactions within the meaning of the law. Each of the two evaluations exceeded one million dollars. Without offering a specific citation, the Board analyst "believed" that the threshold under the federal law in 1994 was $150,000.00, and that any federally related transaction exceeding that value required the use of a state licensed appraiser. If this is correct, Respondent had to be licensed in order to perform appraisal services on the two subject properties. In mitigation, it is noted that this is the first time Respondent has ever been subject to disciplinary action by the Board. In addition, no member of the public or user of the reports suffered harm by virtue of the violation. The violation also appears to be somewhat minor, and there is only one count in the complaint. Finally, Respondent is presently a law student attending school on student loans, and he will suffer financial hardship as a result of the imposition of a fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Real Estate Appraisal Board enter a Final Order finding that Respondent violated Section 475. 626(1)(a), Florida Statutes, and that he be given a reprimand. DONE AND ENTERED this 24th day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of December, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Post Office Box 1900 Orlando, Florida 32802-1900 J. Murray Milliken, Esquire Post Office Box 174 Floral City, Florida 34436-0174 James Kimbler, Acting Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did Petitioner willfully misrepresent his response to questions on his application regarding his arrests? Does Petitioner's criminal involvement show a lack of good character, thereby disqualifying him from licensure?
Findings Of Fact Petitioner made application to the Board of Real Estate for licensure as a real estate salesman. He answered the question, had he ever been arrested, in the affirmative and stated that he had been arrested for possession of stolen property, that adjudication was withheld, and that he was placed on probation which was terminated June 1, 1981. Petitioner had received from another young man a set of sailboat sails, which Petitioner knew or had reason to know were stolen. Petitioner was arrested when he tried to sell the sails to their original owner. Petitioner did not state in his application that he had also been arrested for possession with intent to sell a controlled substance. The charges of possession were not pursued, and Petitioner thought the application asked only for convictions. Petitioner subsequently provided details about this arrest in his response to interrogatories filed in this cause. Petitioner had been arrested for the sale of approximately 400 Quaaludes for $500 to a young man who was a neighbor and an acquaintance. At the time of his first arrest, Petitioner was 18 years old and was 19 years old at the time of his second arrest. Currently, Petitioner is enrolled in the School of Business at Florida International University and is a junior with a 2.0 grade average. He is taking a reduced class load to prevent further reduction of his academic average. Petitioner satisfactorily completed his real estate salesman course and obtained a grade of 90 or better.
Recommendation The evidence indicates that the Petitioner is deemed statutorily unqualified for licensure, and he has failed to present substantial evidence that by the passage of time, subsequent good conduct and reputation the public's interest would not be endangered by his licensure. Therefore, the Hearing Officer recommends that Petitioner's application be denied at this time without prejudice to any application he might file in the future. DONE and ORDERED this 27th day of April, 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 27th day of April, 1982. COPIES FURNISHED: Angelo Ali, Esquire 28 West Flagler Street, Suite 400 Miami, Florida 33130 Jeffrey A. Miller, Esquire Department of Legal Affairs Administrative Law Section The Capitol, 16th Floor Tallahassee, Florida 32301 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
Findings Of Fact The Respondent, John J. Piccione, is an instructor at Gold Coast School of Real Estate, Inc., holding instructor's permit number ZH 31158. He has been a licensed instructor for approximately fifteen years. Piccione used to be the permit holder for Gold Coast School of Realty, Inc., but as of January 3, 1984, the school permit was issued to Mary Piccione. Additionally, Mary Piccione is the chief administrator of Gold Coast School of Realty, Inc. John J. Piccione's license as a real estate broker was suspended for one year, from November 3, 1983 to November 2, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges contained in the Administrative Complaint be DISMISSED. DONE and ORDERED this 21st day of September, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 21st day of September, 1984. COPIES FURNISHED: Fred Langford Staff Attorney Department of Professional Regulation Real Estate P. O. Box 1900 Orlando, Florida 32802 John J. Piccione 1515 E. Silver Springs Boulevard Suite 105-WG Ocala, Florida 32670 Harold R. Huff, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. David B.C. Yeomans, Jr., is now and was at all times material hereto a licensed real estate broker having been issued license number 0163386. During times material, Respondent was the qualifying broker for G & A Realty and Investments, Inc., a corporation licensed as a real estate broker in the State of Florida. 1/ From approximately April 1985 to December 1985, Respondent Yeomans was the president and qualifying broker for G & A. Wilfredo Gonzalez, a licensed real estate salesman and Alberto Aranda were each 50 percent shareholders of G & A. Wilfredo Gonzalez, while licensed as a real estate salesman in the employ of G & A, solicited and obtained a client, Alfredo Susi, who made an offer to purchase a commercial property in Dade County, Florida. In connection with the offer, Alfredo Susi entrusted a $10,000 earnest money deposit with Wilfredo Gonzalez to be held in trust in G & A's escrow account. The seller rejected Susi's offer to purchase whereupon Alfredo Susi made demands upon Gonzalez for return of the earnest money deposit. Wilfredo Gonzalez attempted to return the earnest money deposit entrusted by Susi via check dated November 18, 1985 drawn on G & A's escrow account. Upon presentation of the subject check by Susi, it was returned unpaid due to non-sufficient funds. Alfredo Susi has been unable to obtain a refund of the deposit submitted to Gonzalez. Wilfredo Gonzalez used the deposit presented by Susi and did not apprise Respondent Yeomans of what or how he intended to dispose of Susi's deposit. Alfredo Susi had no dealing with Respondent Yeomans and in fact testified and it is found herein, that Susi's dealings in this transaction, were exclusively with Wilfredo Gonzalez. Tony Figueredo, a former salesman with G & A, is familiar with the brokerage acts and services performed by Respondent Yeomans and Wilfredo Gonzalez. During his employment with G & A, Figueredo had no dealing with Respondent Yeonans and in fact gave all escrow monies to Wilfredo Gonzalez. Carolyn Miller, the president and broker for Rite Way, Realtors, an area brokerage entity, is familiar with the customs and practices in the Dade County area brokerage operations. Ms. Miller considered it a broker's responsibility to supervise all salesman and to review escrow deposits and corresponding accounts approximately bimonthly. Theodore J. Pappas, Board Chairman for Keyes Realtors, a major real estate brokerage entity in Dade County, also considered it the broker's responsibility to place escrow accounts into the care and custody of a secretary and not the salesman. Mr. Pappas considered that in order to insure that funds were not misappropriated, checks and balances and intensive training programs would have to be installed to minimize the risk of misappropriation of escrow deposits. Mr. Pappas conceded however that it was difficult to protect against dishonest salesman. Respondent Yeomans has been a salesman for approximately eleven years and during that time, he has been a broker for ten of those eleven years. During approximately mid 1984, Respondent Yeomans entered into a six (6) month agreement with G & A to be the qualifying broker and to attempt to sell a large tract of land listed by Context Realty in Marion County (Ocala). When Respondent agreed to become the qualifying broker for G & A Respondent was a signator to the escrow account for G & A Realty. Sometime subsequent to Respondent qualifying as broker for G & A, Wilfredo Gonzalez changed the escrow account and Respondent Yeomans was unfamiliar with that fact. Respondent Yeomans first became aware of Susi's complaint during late 1985 or early 1986. Respondent Yeomans was not a signator on the escrow account where Wilfredo Gonzalez placed the escrow deposit entrusted by Alfredo Susi. (Petitioner's Exhibit 9) During approximately November, 1986, Respondent Yeomans made it known to the officers at G & A that he was withdrawing his license from G & A and attempted to get G & A's officers to effect the change. When this did not occur by December, 1986, Respondent Yeomans effectuated the change himself and terminated his affiliation with G & A. During the time when Respondent was the qualifying agent for G & A, there were approximately four employees and little activity to review in the way of overseeing real estate salespersons. During this period, Respondent Yeomans reviewed the escrow account for G & A that he was aware of. During the time that Respondent Yeomans was qualifying broker for G & A, he was primarily involved in the undeveloped acreage owned by Context Realty and other REO listed property of G & A. During the period when Respondent Yeomans was qualifying agent for G & A, Wilfredo Gonzalez spent approximately 95 percent of his time managing rental property that he (Gonzalez) owned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of June, 1987 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 9th day of June, 1987.
Findings Of Fact At all material times the Respondent James H. Davis, was a licensed real estate broker and real estate school permit holder having been issued license numbers 0147489 and 30428, respectively. The Respondent Real Estate Learning Institute, Inc., is a real estate license school holding license number 43280. During the period December 3-15, 1982, the Real Estate Learning Institute offered a "salesman weekend" instruction course in real estate principles, practice and law. The Respondent Davis was the course instructor and certified in writing that the four students enrolled in the course had completed 51 hours of coursework. All of the students successfully completed the real estate course offered by the Respondents except Sherry Bargis, the complainant, who failed the end of course examination. A review of the Respondents' class schedule for the period December 3- 12, 1983, revealed that 50 hours of instruction were scheduled. The classroom records for the period in question in the instant case were not available but were estimated by the Petitioner to include approximately 50 hours of instruction minus two hours of weekend lunch breaks. The Respondent conceded that the records of the Real Estate Learning Institute for the period in question were not properly maintained and that the school offered only 50 hours of instruction on one other occasion. However, when the Petitioner informed the Respondent of the hourly discrepancy, the problem was immediately corrected. The Respondents have a good reputation in the community and have not been the subject of any prior administrative proceedings. The Respondent's failure to offer 51 hours of instruction at the school has not reoccurred. This problem resulted from unintentional inadvertence rather than a knowing disregard of applicable statutes and rules.
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 the Respondents guilty of violating Rule 21V-3.08(1), Florida Administrative Code and Section 475.25(1)(e), Florida Statutes, and placing them on probation for a period of one year during which time the Respondent Davis will be required to certify to the Commission the class schedules and total hours of classroom instruction offered at the Real Estate Learning Institute. DONE and ENTERED this 15th day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 15th day of March, 1984. COPIES FURNISHED: James H. Davis Real Estate Learning Institute, Inc. 1127 Ridgewood Avenue Holly Hill, Florida 32017 Frederick H. Wilsen, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick H. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Petitioner's Administrative Complaint dated March 5, 1997, charges that Respondent, Barbara Cogan, obtained a license by means of knowingly submitting false information or engaging in misrepresentation in violation of Section 475.624(12), Florida Statutes. The issue for disposition is whether that violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent Barbara E. Cogan is a state-certified residential real estate appraiser, having been issued license no. 0002758 on or about April 22, 1996, pursuant to Chapter 475, Florida Statutes. Beverly Ridenauer is presently a complaint analyst, but previously was an administrative assistant in appraiser certification for the Department of Business and Professional Regulation (DBPR). As part of her duties at the time, Ms. Ridenauer reviewed Ms. Cogan's application for state certified residential appraiser in March 1996. The application on its face was complete and the requisite fee was attached. Ms. Cogan achieved the required hours of education and passed the state examination. Her application was, therefore, approved. In the meantime, Ms. Ridenauer, as required by law, commenced an audit of the work experience claimed by Ms. Cogan in support of her application for certification. In response to a letter request from Ms. Ridenauer, Ms. Cogan promptly submitted copies of appraisal reports that she had prepared in her pre- certification employment experience. The appraisal reports submitted by Ms. Cogan were all signed by Thomas M. Hayes, a state certified residential appraiser, with the additional notation "assistance by Barbara E. Cogan." In the course of her review, Ms. Ridenauer determined that Ms. Cogan had no real estate sales or broker's license, nor was she registered or certified as an appraiser. Ms. Ridenauer sent a memo to the DBPR complaint division because she deemed that the experience claimed by Ms. Cogan in the application process was invalid: qualifying appraisal experience may only be obtained when an individual is licensed to perform the appraisals. There are no false statements on Ms. Cogan's application. She did not claim any other professional licenses in Florida and she truthfully answered "no" to the question whether she had ever been registered, licensed, or certified in another jurisdiction. Nor did Ms. Cogan misrepresent her work experience. She did all of the work on the appraisals under the supervision of Thomas Hayes, with whom she worked for 2 and 1/2 years. She successfully completed the required appraisal education courses and was trained by Mr. Hayes. Neither Ms. Cogan nor Mr. Hayes had the slightest notion that Ms. Cogan was performing work for which she was not appropriately licensed. The appraisals signed by Mr. Hayes and submitted by Ms. Cogan to the agency as evidence of her experience include this statement in the appraiser's certification: I personally prepared all conclusions and opinions about the real estate that were set forth in the appraisal report. If I relied on significant professional assistance from any individual or individuals in the performance of the appraisal or the preparation of the appraisal report, I have named such individual(s) and disclosed the specific tasks performed by them in the reconciliation section of this appraisal report. I certify that any individual so named is qualified to perform the tasks. . . . (Petitioner's Exhibit no. 4, emphasis in original) The emphasized language in the above text of the certification was underlined by hand and an asterisk was placed in the margin. Below Mr. Hayes' signature and next to an asterisk is the notation acknowledging Ms. Cogan's assistance that is described in paragraph 4, above. When she took her appraisal education courses, Ms. Cogan observed that she was the only student who was not a registered appraiser. She asked her teacher if she had to be registered in order to get certified and he said, "no." Ms. Cogan also had obtained, and was thoroughly familiar with, a 2-sided sheet from the Department of Business and Professional Regulation, Division of Real Estate, titled "Essential Information for Real Estate Appraiser Applicants." The information sheet provides instructions for completing applications. It also describes the qualifications for registered appraiser (75 classroom hours of approved courses), licensed appraiser (75 classroom hours plus 2 years' experience in real property appraisal), certified residential appraiser (120 classroom hours plus 2 years' experience in real property appraisal), and certified general appraiser (165 classroom hours plus 2 years' experience in real property appraisal, including non-residential appraisal work). Ms. Cogan correctly noted that neither the information sheet nor her appraiser rules booklet states plainly that a candidate for certification as a residential appraiser must be first registered or licensed as an appraiser, a real estate salesperson, or a broker. When she was notified of the administrative complaint, she was thoroughly surprised and confused. She never intended to obtain her certification under false pretenses. While agreeing that the rules and statute are not perfectly clear, the agency contends that Chapter 475, Florida Statutes, requires that appraisals must be done by appropriately- licensed individuals. The agency concedes that Ms. Cogan did the work she claimed and that it was good, competent work. But for the fact that she was not registered or licensed when she did the work, Ms. Cogan is fully qualified for her residential real estate appraiser certificate.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency enter its Final Order dismissing the Administrative Complaint against Barbara Cogan. DONE AND ORDERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Barbara E. Cogan 3745 Oak Lane Melbourne, Florida 32934 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue in this matter is whether the Florida Real Estate Commission may deny Petitioner’s application for a license as a real estate sales associate, and, if so, whether it is appropriate to do so based on the underlying facts.
Findings Of Fact The Commission is the state agency charged with licensing real estate sales associates in Florida. See § 475.161, Fla. Stat. On January 21, 2016, Petitioner applied to the Commission for a license as a real estate sales associate. In her application, Petitioner dutifully divulged that on December 12, 2002, the Commission revoked her real estate broker’s license. On August 16, 2016, the Commission issued a Notice of Intent to Deny notifying Petitioner that it denied her application for a sales associate license. The Commission denied Petitioner’s application based on its finding that Petitioner’s broker’s license was previously revoked by the Commission in 2002. At the final hearing, Petitioner explained the circumstances that led to her broker’s license revocation. In 2000, a Commission investigator audited her real estate trust account. The audit uncovered information that Petitioner failed to timely transfer a $1,000 deposit and properly reconcile her escrow account. Petitioner disclosed that a sales contract she was handling required the buyers to deposit $1,000 with her as the broker. The sale fell through, and the buyers did not close on the house. In May, 2000, the buyers demanded Petitioner transfer the deposit within 15 business days. Petitioner, however, did not forward the deposit out of her escrow account until four months later in September 2000. Based on this incident, the Commission alleged that Petitioner failed to account for delivered funds; failed to keep an accurate account of all trust fund transactions; failed to take corrective action to balance her escrow account; and filed a false report in violation of sections 475.25(1)(d)1, 475.25(1)e, 475.25(1)(l), 475.25(1)(b) and Florida Administrative Code Rule 61J2-14.012(2). Based on the charges, the Commission ordered Petitioner’s real estate broker’s license permanently revoked. Petitioner stressed that she did not steal the buyers’ money. Her mistake was in not timely transferring the deposit from her trust account. Petitioner asserted that she simply lost track of the funds. At the final hearing, Petitioner accepted full responsibility for her mismanagement. At the final hearing, Petitioner expressed that she first entered the Florida real estate industry in 1982 when she became a licensed real estate sales associate. In 1987, she obtained her broker's license. She subsequently purchased a Century 21 franchise. She conducted her real estate business until 2002 when her broker’s license was revoked. Petitioner explained that she is not seeking another broker’s license from the Commission. Instead, she is just applying for another sales associate license. Petitioner described the difference between a sales associate and a broker.5/ Petitioner stated that a sales associate works directly under, and is supervised by, a broker. The sales associate interacts with prospective buyers and sellers, negotiates sales prices, and accompanies clients to closings. Regarding financial transactions, however, the broker, not the sales associate, processes all funds related to a real estate sale. The broker, not the sales associate, transfers funds into and out of escrow accounts. In other words, the error Petitioner committed as a broker in 2000 could not happen again if she was granted a sales associate license. Petitioner further testified that during the time she worked as a sales associate, she was involved in the sale of approximately 100 houses. Petitioner represented that she never received any complaints or criticisms from any of her clients. Petitioner relayed that she became motivated to return to the real estate business following her husband’s death in 2015. Petitioner expressed that she was very good at selling houses. Real estate is her passion. She voiced that she eats, sleeps, walks, and talks real estate. Despite her misstep in 2000, Petitioner declared that she is a very honest and hardworking person. She just wants another chance to work in the profession that she loves. Currently, Petitioner works for a charitable organization. She helps administer and manage the charity’s finances. Petitioner represented that she has never failed to meet her financial responsibilities. She has always accounted for all of the funds for which she is entrusted (approximately $8 million since she began working for the charity over 20 years ago). No evidence indicates that Petitioner has committed any crimes or violated any laws since her broker’s license was revoked in 2002. At the final hearing, Petitioner presented three witnesses who testified in favor of her receiving a sales associate license. All three witnesses proclaimed that Petitioner is trustworthy, of good character, maintains high moral values, and is spiritually strong. The witnesses, who know Petitioner both personally and professionally, opined that she is honest, truthful, and has an excellent reputation for fair dealing. All three witnesses declared that the public would not be endangered if the Commission granted Petitioner’s application for licensure. Petitioner also produced six letters of support. These letters assert that Petitioner is an honorable and trustworthy person. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence provides the Commission sufficient legal grounds to deny Petitioner’s application. Consequently, Petitioner failed to meet her burden of establishing that she is entitled to a license as a real estate sales associate. However, as discussed below, Petitioner demonstrated that she is rehabilitated from the incident which led to the revocation of her broker’s license in 2002. Therefore, the Commission may, in its discretion, grant Petitioner’s application (with restrictions) pursuant to sections 475.25(1) and 455.227(2)(f).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Florida Real Estate Commission has the legal authority to deny Petitioner’s application for licensure. However, based on the underlying facts in this matter, it is RECOMMENDED that the Florida Real Estate Commission enter a final order granting Petitioner’s application for a license as a real estate sales associate. DONE AND ENTERED this 10th day of May, 2017, in Tallahassee, Leon County, Florida. S BRUCE CULPEPPER 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 10th day of May, 2017.
Findings Of Fact Petitioner, Jules Lipp, was a candidate on the real estate broker's examination given on September 24, 1984, in Miami, Florida. The test is administered by respondent, Department of Professional Regulation, Division of Real Estate (Division), and requires a score of 75 to pass. The broker's licensing examination is developed by respondent and based on reference books authorized and published by the Division, although individual real estate schools may publish their own materials. However, the Division is not responsible for any materials published by real estate schools which may deviate from or differ with the authorized reference books from which the questions are drawn. The instructions on the examination require the candidates to choose the most correct answer. Whenever questions include a negative word, that word is underlined to emphasize and highlight the negative response desired. The questions on the examination are reviewed prior to the administration of the examination by a validation committee consisting of an attorney, a Real Estate Commission member, the Division education director, and the Division examination development specialist. On an undisclosed date petitioner received notice that he had failed the examination. After receiving no satisfaction at a review session with Division personnel in Orlando, he requested a formal hearing to challenge questions 4, 5, 12, 16, 18, 22, 50, 55, 59, 71, and 74 on the examination. During the course of the hearing, he limited his challenge to questions 5, 16, 18, 50, 71, and 74. Other than his own testimony, petitioner offered no evidence to show that his answer to the above questions were the most correct. Indeed, uncontroverted expert testimony clearly established that petitioner's answers were incorrect, that the challenged questions were drawn from the authorized reference books, and were not "unclear" and "ambiguous" as petitioner contended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that no change be made to petitioner's grade on the real estate broker's examination. DONE and ORDERED this 12th day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of March, 1985. COPIES FURNISHED: Mr. Jules Lipp 5300 N.W. 77th Court Miami, Florida 33166 Drucilla E. Bell, Esquire 130 North Monroe Street Tallahassee, Florida 32301
