The Issue The Information filed by the Florida Real Estate Commission against the Respondent charged him with two separate counts of violations of Chapter 475, The first count charged that he had sold real estate within the state of Florida and held himself out as being entitled to operate as a real estate broker or salesman. The count further charges that the Respondent did not reveal this to the Florida Real Estate Commission when he filed his application to be licensed within the state. Therefore, the Commission states Respondent obtained his registration as a salesman by means of fraud, misrepresentation or concealment in violation of Section.475.25(2), F.S. Count Two alleges that the Respondent answered in the negative to Question 14 of said application "Have you filed any application for registration as a broker or salesman in this state which was not granted?" In fact, Count Two alleges that the Respondent had filed an application previously to the one which was eventually granted and had therefore not truthfully answered the above question.
Findings Of Fact The evidence in this case failed to sustain either of these charges. As to the first count, the main witness called by the Florida Real Estate Commission, Annette Frances Brewer, could not identify the Respondent as being an individual who showed her real property and attempted to sell her a condominium unit. As for Count Two, there was no showing that the Respondent's misstatement on said applications was intentional or done for purposes of deception.
Recommendation It is, therefore, RECOMMENDED that the Florida Real Estate Commission take no action against the Respondent, Frank David Camp. DONE and ENTERED this 26th day of October, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530 Carlton Building Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Fred Wilson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Bruce A. Koebe, Esquire 2170 N.E. Dixie Highway Rick Carroll Building Jensen Beach, Florida 33457 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, vs. PROGRESS DOCKET NO. 2566 MARTIN COUNTY FRANK DAVID CAMP, DOAH CASE NO. 76-1035 Defendant. /
The Issue The issues are essentially whether Respondent failed to use reasonable diligence on four appraisals of residential condominiums in Orlando done in 2007, and whether he failed to register his appraisal business with Petitioner; and, if so, how he should be disciplined.
Findings Of Fact Respondent is a certified Florida real estate appraiser, holding DBPR license 5422. In 2007, Respondent was appraising through Rush Realty Appraisal Services, LLC (Rush Realty), which he owned and operated. Rush Realty was registered with the Florida Department of State as a limited liability company, but it was not registered with DBPR. The Appraisals In 2007, Rush Realty, through Respondent and a trainee he supervised, appraised four condominium units in a residential complex in Orlando called the Residences at Millenia (Millenia). Three of the appraisals were done in January and the other in June. In January, Rush Realty appraised two of the condos at $279,500 and appraised the third at $258,500; in June, it appraised the fourth condo at $279,500. Respondent is responsible for these appraisals. One January appraisal was based on five comparables, three of which were sales of Millenia condos; one of those three was a pending sale. The other two January appraisals were based on four comparables, two of which were sales of Millenia condos, both of which were pending sales. One of the pending Millenia sales used for the January appraisals was for $290,000 ($282 per square foot, abbreviated psf). The other Millenia pending sale used for the January appraisals was for $279,500 ($272 psf). The closed sales used in the January appraisals included one at Millenia for $209,800 ($204 psf), another at Millenia for $207,400 ($202 psf), two at nearby Sunset Lake Condos for $275,900 ($265 psf), one at Sunset Lake for $259,900 ($251 psf), and one at Sunset Lake for $254,900 ($256 psf). According to the January appraisal reports, the sources of the comparables used by Respondent were the public records and the Multiple Listing Service (MLS) for the closed sales and the Millenia sales office for the pending sales. The June appraisal was based on two Millenia condo sales. These were the two sales that were pending at the time of the January appraisals. According to the June appraisal, those sales closed in March 2007, one at $280,000 and the other at $279,900. The June appraisal listed only the Millenia sales office as the source of the data on the two Millenia closed sales used as comparables for that appraisal. The June appraisal listed only the Millenia sales office as the source of the data on the two Millenia closed sales used as comparables for that appraisal. Respondent's January appraisal reports stated that the price range of properties similar to the subject property sold within the year prior to the appraisal report was from $100,000 to $400,000. In fact, according to MLS, the range was $25,000 to $313,000. Only seven of the 186 comparable sales were over $250,000. Respondent's June appraisal report also stated that the price range of properties similar to the subject property sold within the year prior to the appraisal report was from $100,000 to $400,000. In fact, according to MLS, the range was $102,000 to $313,900. Only four of the 88 comparable sales were over $250,000. Whether Respondent Used Reasonable Diligence The information provided by the Millenia sales office for the pending sales used as comparables for the January appraisals was unverifiable at the time. It was inappropriate for Respondent to use the Millenia sales office as the source of comparables for the January appraisals (or to use it to verify other sources) because Millenia was interested in the transaction for which the appraisals were done. Respondent testified that he and his trainee used a research tool called Microbase to obtain public records information on comparable sales for the appraisals. He testified that the information from the public records used for the January appraisals, and from the Millenia sales office for the June appraisal, was verified by the MLS, HUD-1 closing statements, and contracts. The use of MLS for verification for the closed sales in the January appraisals is indicated by the inclusion of MLS in the part of those appraisal report forms used to indicate data source(s). Although the data and verification sources other than the Millenia sales office and MLS were not indicated on the report forms for the January appraisals, and no source other than the Millenia sales office was indicated on the report form for the June appraisal, Respondent testified that his work files document the use of all of these sources for the closed sales used as comparables in the four appraisals. DBPR questions the veracity of Respondent's testimony regarding his work files and the use of these data and verification sources based on his failure to replicate his work files when asked to do by Petitioner's investigator. DBPR points to no requirement for Respondent to replicate his work files upon request. It appears from the evidence that Respondent understood he was being asked to produce the files, not to replicate (i.e., recreate) them. His response was in the negative based on his explanation that the files had been confiscated by and remained in the possession of the Federal Bureau of Investigation. The FBI has not returned Respondent's work files. Neither party attempted to subpoena the work files in this case, and the work files were not placed in evidence. DBPR also questions the veracity of Respondent's testimony regarding his work files and the use of these data and verification sources based on his failure to use any of the numerous other comparable sales that were available from those sources, most of which were sold for considerably less money than the comparables used by Respondent. For example, for the January appraisals, there were 37 comparable sales in the preceding six months available through MLS that ranged from $39,000 to $235,000; and, for the June appraisal, there were 16 comparable sales in the preceding six months available through MLS that ranged from $134,900 to $190,000. DBPR's expert utilized these comparables in MLS and reached value conclusions that were approximately $90,000 lower than Respondent's. According to MLS, other closed sales at Millenia between July 27, 2006, and January 27, 2007, ranged from $180,000 ($184.82 psf) to $205,000 ($207.49 psf), with an average of $198,472 ($196.96 psf) and a median of $205,000 ($199.42 psf). Comparable sales of condos within a mile from Millenia that closed between July 27, 2006, and January 27, 2007, ranged from $39,000 ($38.24 psf) to $306,000 ($275.93 psf), with an average of $187,279 ($183.82 psf) and a median of $188,500 ($189.95 psf). Comparable sales of condos within a mile from Millenia that closed between January 27, 2006, and January 27, 2007, ranged from $25,000 ($30.56 psf) to $317,900 ($256.28 psf), with an average of $168,468 ($152.69 psf) and a median of $169,650 ($159.49 psf). Respondent testified that he rejected the comparables he did not use based on the properties' relative poor condition, effective age, and lack of amenities. He also testified that, in some cases, the sellers appeared to be in financial distress and extremely motivated to sell, even at lower than market value; or, in other cases, the sellers did not raise their prices as the market rose. Taking all the evidence into account, DBPR did not prove that Respondent did not use any data and verification sources other than the Millenia sales office for the closed sales used as comparables in the four appraisals; however, Respondent inappropriately used pending sales instead of the available comparables and did not diligently review the available comparables before choosing the comparables he used. Instead, he quickly focused on sales at Millennia and Sunset Lakes that were significantly higher than the predominant prices of other comparable sales available to him through MLS and other sources. Respondent failed to exercise reasonable diligence in developing the appraisals and preparing the appraisal reports. If pending sales had not been used as comparables in the January appraisals, or if other available comparables had been used, the appraised values would have been significantly lower. The June appraisal would have been lower if other available comparables had been used. Other Errors in Appraisal Reports For two of the closed sales, in the part of the appraisal report form for describing sales and financing concessions, Respondent mistakenly entered MLS, with an official public records book and page number. This labeling error could have been confusing, but there was no evidence that anyone was misled by the error. The report forms used by Respondent included an addendum indicating that closed sales were used for comparables. This language was inconsistent with the indications elsewhere in the January appraisal reports that pending sales were used for that purpose. While potentially confusing, there was no evidence that anyone actually was misled by the addendum language. The addendum language also stated that all comparables were given equal consideration. Actually, in one of the January appraisals, the higher comparables were given greater weight. In that report, the property appraised for approximately $30,000 more than it would have if all comparables had been given equal consideration. This language was misleading in that computations would have been required to determine that it was in error. USPAP Rule 1-1(a) of the 2006 Uniform Standards of Professional Appraisal Practice (USPAP) requires a real property appraiser to be aware of, understand, and correctly employ those recognized methods and techniques that are necessary to produce a credible appraisal. Respondent violated this rule. Rule 1-1(b) prohibits substantial errors of omission or commission that significantly affect an appraisal. Respondent violated this rule. Rule 1-1(c) of USPAP prohibits rendering appraisal services in a careless or negligent manner, including making a series of errors that, although individually might not significantly affect the results of an appraisal, in the aggregate affects the credibility of the results. Respondent violated this rule. Rule 1-4(a) of USPAP requires that, when a comparable sales approach is necessary for a credible result, an appraiser must analyze such comparable sales data as are available. Respondent violated this rule. Rule 2-1(a) of USPAP requires that written and oral appraisal reports be set forth in a manner that is clear and accurate and not misleading. Respondent violated this rule. Aggravating and Mitigating Circumstances Respondent had not been disciplined and had not received a letter of guidance prior to the four appraisal reports at issue in this case. His license was in good standing at the time. When an appraiser does not exercise reasonable diligence in doing an appraisal and preparing the appraisal report and the result is an unreasonably high value conclusion, as happened in the four appraisal reports at issue in this case, and a lender relies and acts on the appraisal report, the lender is harmed ipso facto, and the borrower and public may also be harmed, notwithstanding that many residential loans defaulted after 2007 besides the loans made based on these four appraisals. There was no evidence as to the specific extent of the actual harm to this lender. Although DBPR filed a separate administrative complaint for each of the four appraisals, the conduct complained of in each administrative complaint was similar. Each administrative complaint has three counts: one for not using reasonable diligence in doing the appraisal and preparing the appraisal report; another for not registering Rush Realty; and a third for violating USPAP provisions. Respondent testified without contradiction that revocation or suspension of his appraisal license, and even a substantial fine, would be a devastating financial hardship to him and his family.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DBPR enter a final order finding Respondent subject to discipline under sections 475.624(4) (through violations of section 475.623, USPAP, and rule 61J-9.001) and 475.624(15); suspending his license for three months, subject to probation upon reinstatement for such a period of time and subject to such conditions as the Board may specify; fining him $2,000; and assessing costs related to the investigation and prosecution of the cases in accordance with section 455.227(3)(a). DONE AND ENTERED this 26th day of October, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 26th day of October, 2012.
The Issue Whether James F. Robertson signed a false affidavit in violation of Section 475.25(1)(a), Florida Statutes.
Recommendation In making a recommendation in this matter, the Hearing Officer considers the following factors relating to James F. Robertson's fitness to be a registrant of the Florida Real Estate Commission. Robertson admitted that he realizes that he executed a false affidavit. Robertson did not falsify the affidavit with the intent to defraud anyone because he intended to pay all the subcontractors and materialmen and thought that he had the ability to pay them. Robertson pledged his personal assets to the payment of the L & M account print to the lien which indicates his intent to make good the account. Robertson is apparently concerned about the Smith's problem but has not been able to settle the account with L & M. Based on the foregoing findings of fact, conclusions of law, and facts in mitigation, the Hearing Officer would recommend that the registration as real estate broker of James F. Robertson be suspended two years; and further, that this suspension be suspended as long as Robertson makes regular payments on the debt to L & M Builder Supplies, Inc., such that the debt will be liquidated at the end of the two year period and the lien against the Smith's home satisfied. DONE and ORDERED this 29th day of March, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32303 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 James F. Robertson c/o Gernada Realty, Inc. 2007 Parsons Avenue, North Seffner, Florida 33584
The Issue Whether disciplinary action should be taken against the Respondents for alleged violation of Subsections 475.25(1)(a) (1977), 475.25(1)(b) (1979), 475.25(1)(c) (1977), and 475.25(1)(d) (1979), Florida Statutes, as set forth in the Administrative Complaint, dated May 1, 1980. At the commencement of the hearing, Counsel for Respondent Marie Bonello announced that his client, who was present, was ill and 78 years of age and unable to testify, and moved to continue the hearing. The continuance was denied, but the parties agreed to allow her Counsel to file a deposition subsequent to the hearing and to hold the case open until her deposition could be filed. By letter dated August 13, 1980 Counsel for Marie Bonello stated that he anticipated a restitution settlement with complaining witness Marlene Jacobs and requested further delay in closing the case. Counsel for Respondent Gloria Campione agreed to the delay by letter dated September 25, 1980. On October 8, 1980 Counsel for Petitioner requested that a recommended order be entered, and on October 31, 1980 notified the Hearing Officer that a transcript would be ordered and a proposed recommended order would be filed by Petitioner. A transcript was filed December 8, 1980. No deposition, proposed orders, or memorandum showing restitution were filed by the parties subsequent to the hearing except Counsel for Respondent Campione filed a legal memorandum and a proposed recommended order, which were considered in the rendition of this order.
Findings Of Fact Respondent Marie Bonello was registered with Petitioner as a real estate salesperson and also as President and Treasurer of Bonne Realty Corporation and was so registered during the time pertinent to this hearing in the year 1978 (Petitioner's Exhibit 23). Respondent Bonne Realty Corporation was licensed under Corporate Certificate No. 0196358-6 by the Florida Real Estate Commission to transact real estate business and was so registered during the time pertinent to this hearing. Respondent Gloria Campione is registered as a real estate salesperson and was so registered In 1978 and at all times material to this case was either employed by or was working with Respondent Bonello and the Respondent Bonne Realty Corporation. In May of 1978 one Marlene Jacobs contacted Gloria Campione, a salesperson in Archer Real Estate, Inc., in regard to the purchase of a home in Broward County, Florida. Ms. Campione showed Ms. Jacobs several homes in the area and on or about June 9, 1978 showed her some substantially completed model homes in the Deer Run subdivision. On June 11, 1978 a Deposit Receipt and Contract for Sale and Purchase was drawn for Lot 155 of the Deer Run project on which a residence was to be constructed for Ms. Jacobs and Ms. Jacobs made an initial deposit of $1,000 (Petitioner's Exhibits 3 and 9; Transcript, page 74). Archer Real Estate, Inc. and Bonne Realty Corporation were indicated as Brokers and Marlene Jacobs as the buyer. That evening Respondent Campione and another salesperson, Shannon Brisbon, who had a contract with a buyer for the same Lot Number 155, Deer Run, had a meeting with the builder/owner of the subdivision (Respondent's Exhibit 2). The builders, Frank Sepe and Lou Gonzalez, decided to accept the contract negotiated by salesperson Brisbon rather than the contract between Ms. Jacobs and Respondent Campione because Ms. Brisbon's clients would have more money to pay on the property at closing. Respondent Campione later notified Ms. Jacobs that Lot 155 was not available to her but a similar house could be built on a similar lot. Shortly thereafter Ms. Jacobs met with Respondent Campione, Ms. Bonello, and the builders and modified the original contract in ink to reflect a change in lots. Ms. Jacobs paid the balance of the deposit for a total of $5,000 and gave it to Respondent Campione. No construction was commenced. In September of 1978 Respondent Bonello contacted Ms. Jacobs and said she desperately needed money at once and wanted Ms. Jacobs to write two checks prior to the closing of the real estate transaction. Ms. Jacobs, without notifying Respondent Campione, drew two checks dated September 8, 1978, one to Respondent Marie Bonello in the amount of $3,478.03 and one to Mr. and Mrs. Wm. Maki in the amount of $5,521.97. No receipt was given for those checks. In October of 1978 Ms. Campione learned that Ms. Jacobs had drawn the two checks in the total amount of $9,000 and had given one to Respondent Bonello and one to the Makis, whom she was informed held a mortgage on a shopping center owned or partially owned by Respondent Bonello. Respondent Campione was alarmed, fearing her client Ms. Jacobs would lose the unsecured money, and forthwith procured a promissory note and a new building contract dated October 4, 1978 from Respondent Bonello reflecting the receipt of the original $5,000 deposit plus the $9,000 in the two unsecured checks. The promissory note and contract were signed by Respondent Bonello upon the insistence of Respondent Campione. The contract showed a total of $14,000 deposit to be used for construction (Petitioner's Exhibits 1, 4 and 7). Still no construction was started. Respondent Bonello did not deny the allegations in the complaint either at the hearing or by deposition. The evidence and the testimony of Ms. Jacobs and Respondent Campione show that Respondent Bonello was a party in her capacity as President and Treasurer of the broker Bonne Realty Corporation, as a principal on a promissory note drawn to secure monies deposited by the buyer in furtherance of a real estate transaction and was a witness on many documents pertaining to the proposed real estate sale. It is the finding of the Hearing Officer that Respondent Bonello participated in all transactions pertaining to the proposed sale of a lot on which a house was to have been constructed for the buyer Ms. Marlene Jacobs. Money was obtained from the buyer by Respondent Bonello and was not to be used and was not used for construction of Ms. Jacob's home as she was led to believe. It is the further finding that Respondent Bonello signed a promissory note to Marlene Jacobs to secure the monies she had obtained from the buyer but only at the request of Respondent Campione. In November, 1978, when it appeared that no house was to be built, Ms. Jacobs discovered that Respondent Bonello had not only contracted to sell her lot to other persons but had used the deposit money in the shopping center Respondent Bonello was constructing for herself (Transcript, page 25). Ms. Jacobs has demanded the $14,000 she paid to Respondents Bonello, Campione and Bonne Realty Corporation, but no money has been received and Ms. Jacobs has been forced to seek recompense through the courts (Petitioner's Exhibits 14 and 15). After Respondent Campione had first showed the property in Deer Run to her client, Ms. Jacobs, and had negotiated the contract offer between Marlene Jacobs, buyer and Archer Real Estate, Inc. aid Bonne Realty Corporation, Co- Brokers and Frank Sepe as Seller Respondent Campione moved her license and worked exclusively with Respondent Marie Bonello. Archer Real Estate, Inc. is not involved in this case. At the hearing evidence was entered indicating that Bonne Realty (corporation was in existence and licensed at the time the foregoing complaint was filed and at the time of the subject transaction. Respondent Marie Bonello was listed as the President, Treasurer and 50 percent shareholder and broker for the corporation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered finding Respondent Marie Bonello guilty of the charges alleged in the Administrative Complaint, and suspending her for a period of two (2) years; That a final order be entered suspending the registration of Bonne Realty Corporation for two (2) years and until compliance with a lawful order imposed in the final order of suspension; That a final order be entered dismissing the complaint against Respondent Gloria Campione. DONE ad ORDERED this 19th day of December, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1980. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Alan J. Werksman, Esquire Suite 404, Interstate Plaza 1499 West Palmetto Park Road Boca Raton, Florida 33432 Robert M. Arlen, Esquire 2700 North East 14th Causeway Pompano Beach, Florida 33062
The Issue Did the Respondent, Howard Klahr, fail to deliver or communicate appraisals of properties located at 5821 Southwest 20th Street, Miami, Florida and 2761-63 Southwest 31 Place, Miami, Florida 33133? Did Respondent, Howard Klahr, commit or make fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, culpable negligence, or breach of trust in his business relationship with Jane Asorey. What is the proper discipline, if any, to be imposed on Respondent, Howard Klahr (Mr. Klahr)?
Findings Of Fact Respondent, Howard Klahr, is a Florida state certified general real estate appraiser trading as Easthill Valuation and Consulting. He holds license number RZ-2678 and has since August 2003. On January 7, 2007, Jane Asorey, now Jane Zuleta, met with Mr. Klahr and engaged him to provide appraisal evaluations of two properties and to provide expert witness and consulting services for Ms. Asorey’s dissolution of marriage case. One property was the marital home, a single family residence located at 5821 Southwest 20th Street, Miami, Florida. The other property was a duplex located at 2761-2763 Southwest 31st Place, Miami, Florida. The duplex appraisal evaluation was to be “retrospective” and evaluate the worth of the duplex in 1991, 1999, and 2005. The appraisal evaluation of the single family residence was to be for the value in 2005. The evaluations were also to include a review of appraisals prepared by others. Ms. Asorey paid Mr. Klahr a retainer of $1,000.00 for the appraisal evaluation and services on November 7, 2007, including a $500.00 charge for the appraisal evaluation. Ms. Asorey made the check out to Mr. Klahr’s company, Easthill Valuation and Consulting. Mr. Klahr accepted the payment and cashed Ms. Asorey’s check. In a November 5, 2007, e-mail, Ms. Asorey provided Mr. Klahr the telephone number and e-mail address for her attorney. That November 5, 2007, e-mail explained that the work was for dissolution of marriage trial scheduled for December 14, 2007. Mr. Klahr and Ms. Asorey did not enter into a written engagement agreement. Despite repeated efforts by Ms. Asorey to obtain the evaluations, Mr. Klahr never provided her or her attorney the appraisal evaluation he agreed to provide and for which he had been paid. Mr. Klahr attended the deposition of an appraiser in the legal proceeding. Ms. Asorey paid him an additional $750.00 for that service. Ms. Asorey spoke to Mr. Klahr on December 20, 2007, and reminded him of the need for his report and a December 28, 2007, deadline for filing the evaluation in her case. Because Mr. Klahr did not provide the appraisal evaluation, Ms. Asorey missed exhibit deadlines in her case and had to continue the trial. On January 2, 2008, Ms. Asorey sent Mr. Klahr an e- mail importuning him to call her, advising him of her repeated efforts to reach him by telephone since December 20, 2007, and emphasizing the urgent need for the report which was overdue. There is no evidence that Mr. Klahr responded to that e-mail. Because Mr. Klahr did not provide the appraisal evaluation, Ms. Asorey had to engage and pay another appraiser to provide the evaluations. On July 26, 2008, the Department advised Mr. Klahr of its investigation and provided him a copy of the complaint. The complaint specified that Mr. Klahr had not provided the appraisal reports and described Ms. Asorey’s efforts to communicate with him. Bernardo Yepes, the Department Investigator, spoke to Mr. Klahr October 15, 2008. Mr. Klahr stated that he had sent the DBPR documents responding to the complaint. Mr. Yepes advised Mr. Klahr that the Department had not received the documents. He asked Mr. Klahr to send them by facsimile transmission. Mr. Klahr did not send the responsive documents to the DBPR by facsimile transmission or any other means. The first time that Mr. Klahr provided any person copies of the appraisal reports that he maintains he prepared was on December 15, 2009; that was the night before the final hearing when Mr. Klahr submitted them to the Clerk of the Division of Administrative Hearings and to the DBPR attorney. Mr. Klahr held a real estate license in 2002 and 2003. He was disciplined for violations of real estate licensing laws in 2002 or 2003. Mr. Klahr had a previous complaint, similar to the complaint in this matter, filed against him. It was dismissed after an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Business and Professional Regulation, Division of Real Estate enter a final order that: Dismisses Count III; Finds that Mr. Klahr violated 475.624(2), Florida Statutes, and imposes a fine of $1,000, 90-day suspension of Mr. Klahr’s license, an 18-month term of probation during which Mr. Klahr must satisfactorily complete 15 hours of education coursework in the areas of Florida Law and Ethics; Finds that Mr. Klahr violated Section 475.624 (16), Florida Statutes, and imposes a fine of $1,000, 90-day suspension of Mr. Klahr’s license, an 18-month term of probation during which Mr. Klahr must satisfactorily complete 15 hours of education coursework in the areas of Florida Law and Ethics; Makes the terms of probation and periods of suspension concurrent with the probation beginning after the period of suspension concludes; and Requires Mr. Klahr to pay Jane Zuleta $1,000.00 within 30 days of the date of the final order. DONE AND ENTERED this 24th day of February, 2010, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 24th day of February, 2010.
The Issue The issue in this case is whether Respondent violated standards for a certified real estate appraisal, and, if so, what sanction should be imposed.
Findings Of Fact The Department is the state agency which is responsible for certifying and monitoring the performance of residential real estate appraisers. It derives its authority in this case from Chapter 475, Part II, Florida Statutes (2008).2 The Department's headquarters are in Tallahassee, Florida. Hall is a State of Florida certified residential real estate appraiser, holding License No. RD-4615. Hall resides in Port Richey, Florida. The Department issued an Administrative Complaint against Hall alleging certain violations concerning an appraisal for property located at 2850 Gulf of Mexico Drive, Unit 6, Neptune of Longboat Key, Neptune Beach, Florida (the "Subject Property"). There were two appraisal reports alleged to have been issued for the Subject Property by Hall. Hall was hired by Chapman and Associates, on behalf of Encore Mortgage Enterprises (Encore), to do an appraisal of the Subject Property, a one-bedroom, one-bath condominium unit located in a one-building, 12-unit condominium on Longboat Key, Florida. The approximate square footage of the unit was 773 square feet, with 657 square feet of that space identified as its living area. The last purchase of the Subject Property had been in May 2005, when it sold for $297,500. Hall's alleged appraisal of the Subject Property assigned a value of $472,000. The original appraisal (Appraisal 1) prepared by Hall for the Subject Property was replete with errors. Those errors are not in dispute. However, based on the findings made below, the nature and extent of those errors are not material. Upon her initial review of Appraisal 1, Hall began to make corrections to the obvious errors. Her corrections appear in Appraisal 2, which is actually an updated version of Appraisal 1, as will be discussed further herein. At all times pertinent hereto, Hall was an independent real estate appraiser working for herself. She had two employees, neither of whom was a certified real estate appraiser. Hall has been certified as a residential real estate appraiser for five years. During the real estate boom of 2006-2007, Hall did approximately 30 residential appraisals per month. She is currently doing approximately ten per month, reflecting the slow-down in the real estate market in Florida. Hall's normal practice is to prepare an appraisal utilizing a specially designed appraisal software known as Aurora. The Aurora software had several glitches when Hall first started using it, some of which still exist. However, it is a generally user-friendly software program, and Hall is able to work around the glitches. In April 2007, Hall's process for preparing an appraisal was as follows: Hall would give basic information about the subject property to her assistant, Robert Smith. Smith would input that basic information into an appraisal form, usually relying on the form from a recently completed appraisal done by Hall. This practice is known as "cloning," i.e., slightly amending an existing form with new information, resulting in a completely new appraisal form. It was Smith's practice to find an appraisal from the same geographic area as the property in question so that when he cloned the form, some of the same information could be used. For example, information about the neighborhood, topography, local schools, etc., would remain the same for properties in the same proximate geographic location. Once Smith finalized the draft appraisal form, he would send it via email to Hall in the adjoining office. Hall would finalize the appraisal by completing all unfinished portions of the appraisal form, correcting any errors or changes from the relied-upon form, and adding all the requisite addendums to the appraisal. Addendums contained such items as color photos of comparable properties, property information about surrounding properties, sketches or diagrams of the subject property, maps of the area, etc. Hall considered the addendums to be her primary area of expertise and prided herself in having complete and usable addendums. After emailing the draft appraisal to Hall, Smith's job would essentially be complete. He would not see the appraisal again until Hall had finalized it into its ultimate form, including addenda. Hall would spend some time on the draft appraisal, but would work on several appraisals at the same time. When an appraisal was done, she would send it back to Smith with directions to release it to the client who had ordered it. Appraisal 1 on the Subject Property was cloned by Smith from an earlier appraisal pursuant to directions from Hall. When Smith finished his preliminary work and prepared to email the draft to Hall, the Aurora software would not allow him to do so unless he electronically "signed" the draft with Hall's signature. (This is one of the afore-referenced glitches in the Aurora software.) Because of that glitch, Hall had given Smith the authority to "sign" her name for the sole purpose of emailing her the draft. The email was going from one computer in Hall's office (at Smith's desk) to another computer in the office (at Hall's desk). Neither Hall, nor Smith, intended the electronic "signing" of the draft appraisal to suggest that Hall had approved the draft. It was signed only so that the draft could be transferred via email to Hall. However, when Smith sent Appraisal 1 to Hall, he also inadvertently sent it to the client, Chapman and Associates. Brett Branning, an appraiser working for Chapman and Associates, received the draft appraisal (Appraisal 1) and apparently believed it was a final product from Hall. Branning is a certified appraiser, and it was his job with Chapman and Associates to do a review of appraisals from outside appraisers. Branning reviewed Hall's appraisal, determined it to be inadequate, and then made a complaint to the Department. An investigation ensued. During the course of the investigation, Hall was asked to submit her entire work file concerning her appraisal of the Subject Property to the Department. Contained within that work file was Hall's somewhat corrected version of Appraisal 1. That is, the appraisal in Hall's work file (Appraisal 2) was a further cloned version of Appraisal 1, but it was not yet a final appraisal.3 Thus, when the Department investigator compared Appraisal 1 to Appraisal 2 from Hall's work file, it appeared Hall had issued a new appraisal, but had destroyed or otherwise eliminated Appraisal 1. Appraisal 2 in the work file was also replete with errors and omissions. It was, however, not a final product; it was an updated version of Appraisal 1. The Department's investigator and expert witness each testified to the extreme number of errors in Appraisal 1 (as well as, the later version). Their testimony and conclusions were credible and indicated serious errors within the subject appraisal. However, inasmuch as the appraisal at issue was not a final product and not meant for release by Hall, their findings are not relevant to the decision reached herein. Hall readily and candidly admits that Appraisal 1 is incorrect, incomplete, and insufficient. However, she maintains that her electronic signature on the appraisal is not indicative of its status as a final product; rather, the signature was added solely for an internal transfer of the appraisal from one office computer to another. Both her and Smith's testimony in this regard is credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, dismissing the complaint against Deborah M. Hall. DONE AND ENTERED this 8th day of April, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 8th day of April, 2009.
The Issue Whether the Respondent, Omari Murray, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was the state agency charged with the responsibility to administer and enforce the real estate licensing laws found in Chapter 475, Florida Statutes (2004). At all times material to the allegations of this case, the Respondent was a registered trainee appraiser who was subject to the provisions of Chapter 475, Florida Statutes (2004). As an appraiser trainee, the Respondent was required to perform appraisal services through a fully registered real estate appraiser licensed pursuant to Florida law. On or about December 21, 2002, Ms. Cesar paid the Respondent $550.00 to perform an appraisal for her vacant lot located at 4229 Southwest Jarmer Road, Port St. Lucie, Florida. Ms. Cesar paid the Respondent by check drawn on her personal bank account. The check was payable to the Respondent individually. The check was negotiated and the account was debited in the full amount of the check. At the time she tendered the check to the Respondent Ms. Cesar was under the impression that the Respondent was an appraiser who could lawfully perform the appraisal sought. The Respondent did not advise Ms. Cesar that he was only a trainee appraiser and that his supervisor would have to sign any appraisal report generated in connection with the Cesar property. Additionally, at that time, the Respondent’s supervising appraiser, Harvel Gray, was not aware of the appraisal assignment from Ms. Cesar, did not authorize the Respondent to accept the job, and did not authorize the Respondent to accept payment for the appraisal in his individual name. The funds for the Cesar appraisal were not forwarded to Mr. Gray. When Ms. Cesar asked the Respondent for the appraisal she had paid for, the Respondent told her it was illegal for him to give her a copy of the appraisal. She did not understand why she had paid $550.00 and was not provided with a copy of the appraisal. Ms. Cesar had planned to build a house on the vacant lot. She believed the Respondent could facilitate that project as he represented to her that he could get plans drawn, perform the appraisal, and help her through the entire process. In total Ms. Cesar paid the Respondent over $2000.00 to further the construction of the house. On or about July 7, 2003, an authorized representative of the Department, Jonathan Platt, contacted the Respondent and requested that the Respondent provide a copy of the appraisal performed for Ms. Cesar. On or about August 11, 2003, the Respondent produced a “comparative market analysis” report (the report) dated December 27, 2002, for the subject property (Ms. Cesar’s vacant lot). The report was on a Uniform Residential Appraisal Report form and identified the Respondent as the appraiser. Additionally, the form noted the Respondent’s license number as 0005168. The report did not indicate that the report had been reviewed or approved by a licensed appraiser. The report claimed the analysis was both “as is” and subject to the completion of work as specified in plans and specifications. There were no plans or specifications attached or included with the report. The report was not signed by a licensed real estate appraiser. After review of the report, Mr. Platt asked the Respondent for the work file that supported the appraisal report. Requests for the work file were made on August 12, 2003, September 30, 2003, and October 1, 2003. As of the time of hearing the Respondent had not made such file available to the Department. Harvel Gray is a licensed real estate appraiser. Mr. Gray appraises real estate and equipment and knows the Respondent. Mr. Gray met the Respondent when he applied to become a trainee appraiser about five years ago. For approximately three or four months Mr. Gray was technically the Respondent’s supervisor but performed no appraisals with the Respondent. In fact, Mr. Gray terminated his relationship with the Respondent before any appraisals could be performed. Mr. Gray did not know anything about the appraisal that was to be performed for Ms. Cesar. Ken Drummond is also a licensed real estate appraiser. Mr. Drummond knows the Respondent from a Gold Coast continuing education class. Mr. Drummond has never been the Respondent’s supervising appraiser. Mr. Drummond has not performed appraisals with the Respondent. According to licensing records, the only supervising appraiser with whom the Respondent was listed during the pertinent period of time as an appraiser trainee was Mr. Gray. Neither Gray nor Drummond authorized the Respondent to perform an appraisal or complete the report for Ms. Cesar. Neither Gray nor Drummond authorized the Respondent to accept payment from Ms. Cesar for any work. Jonathan Platt, the investigator assigned to this case, spoke with the Respondent and exchanged written information with him. The Respondent did not provide information requested by Mr. Platt and did not explain how the report was generated. According to Mr. Platt the Respondent maintained that Mr. Drummond was his supervising appraiser during the time the Cesar report was performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a Final Order that finds the Respondent guilty of the violations outlined by the Administrative Complaint and revokes his license as a real estate appraiser trainee. S DONE AND ENTERED this 30th day of August, 2005, 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 30th day of August 2005. COPIES FURNISHED: Elizabeth Vieira, Director Division of Real Estate 400 West Robinson Street Suite 802 North Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Alpheus C. Parsons, Esquire Department of Business and Professional Regulation Hurston Building, North Tower, Suite N801 400 West Robinson Street Orlando, Florida 32801 Omari Murray 201 Southwest 11th Avenue Boynton Beach, Florida 33435
Findings Of Fact At all times relevant hereto, Jon A. McVety was registered with the Florida Real Estate Commission as a salesman affiliated with Lee County Realty, Inc., a corporate broker. Frederick C. Huth was the qualifying broker for Lee County Realty, Inc. On March 26, 1986, Frederick C. Huth entered into a contract to purchase a residence in Fort Myers Beach from Larry and June Hildreth, the owners of the residence. The contract provided for a deposit of $500 to be held in escrow by Lee County Realty, Inc., and was contingent upon the buyer, Huth, obtaining a firm commitment for a first mortgage loan within 30 days for $37,000 with interest at 11 percent and payments amortized over a 30-year period. (Exhibit 5) For his $500 down payment, Huth, unbeknownst to the sellers, signed a promissory note for $500. Huth had formerly owned and operated a motel on Fort Myers Beach which went bankrupt. Huth called several lending institutions to obtain financing pursuant to the contract, but when he disclosed his bankruptcy, he was disapproved. He never submitted a formal application for a loan. By letter dated April 23, 1986, Huth advised the Hildreths that he was unable to obtain financing pursuant to the contract and would be unable to close the deal. At this time, Huth made no reference to his deposit. Between March 26 and Huth's resignation, Huth showed McVety the promissory note he had signed. In response to the question asking if he knew what McVety did with the note, Huth answered (TR p. 12): Well, we couldn't put a note in an escrow account so we really didn't know what to do with it, to tell you the truth. So we put it in his desk drawer, as I remember. With regard to disposition of the promissory note, Huth later testified at TR p. 26, "I think I--my words were something to the effect, I don't know what to do with this. Would you like to stick it in your drawer?" By letter to McVety dated April 22, 1986, which was not received by McVety until April 30, Huth resigned as broker for Lee County Realty, Inc., and the company ceased doing business until a new qualifying broker was obtained. At Huth's request and upon receipt of Huth's resignation, McVety returned the promissory note to Buth. Huth advised McVety that he had been unable to obtain financing for the purchase and, before any other demand was made, McVety returned the promissory note to Huth. Prior to his resignation, Huth had given McVety no other instructions regarding the promissory note, nor had he made McVety aware of the contract between him and Hildreth. Subsequent to Huth's departure, a certified letter addressed to Huth at Lee County Realty from Hildreth, dated May 3, 1986, was received and opened by McVety (Exhibit 7). This letter demanded the $500 down payment on the contract be forfeited and paid to the sellers. At this time the promissory note was no longer in the possession of McVety or Lee County Realty. By letter dated May 7, 1986 (Exhibit 8), McVety, as registered owner of Lee County Realty, Inc., responded to Hildreth that the $500 deposit had been returned to Huth when the transaction did not close, that Huth was no longer associated with Lee County Realty, and that further inquiry should be addressed to Huth at the latter's residence. When the $500 deposit was not forwarded, June Hildreth apparently filed a formal complaint with the Real Estate Commission as she had threatened to do in her letter of May 3, 1986 (Exhibit 7). Following an investigation, Huth voluntarily surrendered his license for revocation and on August 25, 1986, a final order was entered revoking Huth's license as a broker (Exhibit 10). This action did not result in Hildreth receiving the $500 deposit she had demanded and no evidence was presented regarding any action taken to have this $500 given to her. However, on September 23, 1986, these charges against McVety were signed, they were filed on October 1, 1986, and these proceedings commenced. McVety's only connection with the controversy between Huth and Hildreth is that at the time the contract was signed, he owned all of the stock in Lee County Realty and he wrote the Hildreths one letter advising them Huth was no longer associated with Lee County Realty. The evidence is uncontradicted that McVety was unaware of the transaction until Huth resigned as broker and the real estate business was forced to close until a new qualifying broker was obtained. That this business was closed is confirmed by Hildreth's testimony that when she called the realty office after Huth's departure, only an answering machine responded with a recorded message. While he was active broker for Lee County Realty, Inc., Huth was also president and secretary of the company (Exhibit 2). No evidence was submitted suggesting that Huth was other than the chief operating officer of the company while he served as active broker, that McVety had knowledge of the contract (Exhibit 5) before Huth's resignation, or even saw a copy of this contract before receiving a copy attached to the Administrative Complaint in October 1986.
Findings Of Fact At all times here involved Defendant, Helen Marie McHenry, was a registered real estate broker with Keim & Hipshire, Inc. and Robert H. Parker was a registered real estate salesman with Keim & Hipshire, Inc. In August, 1975 James and Martha Barber were shown property by Defendant Parker when they visited the office of Keim & Hipshire for the purpose of purchasing a building site in Cape Coral. At this time Keim & Hipshire had listed for sale lots 11 and 12, amongst others, in block 839 in Cape Coral Florida. After showing the Barbers the lots Defendant Parker drove them back to the office of Keim & Hipshire and marked a map of Cape Coral with the site of the lots they had recently visited and gave this map to the Barbers. Thereafter the Barbers executed a contract to purchase lots 11 and 12 and did so purchase these two lots. The offer to purchase dated August 14, 1975 was admitted into evidence as Exhibit 1. The Parkers visited the site marked on the map, which was entered into evidence as Exhibit 2, several times prior to the time that the construction on their house commenced. When construction did commence they did not see any sign of construction on the lots that had been marked on Exhibit 2 but did see, some 4 lots away, construction being commenced, or grading being commenced, on Lots 21 and 22 and their name on the building permit at the property. Believing that lots they had purchased were different they called the office of Keim & Hipshire to complain. Mrs. McHenry asked them to come in to talk about it. At the meeting the Barbers said that the lots they were shown were different than the ones on which the construction was being commenced. The Barbers acknowledged that they had been given a map by Mr. Parker but could not find the map. Lots 11 and 12 and 21 and 22 are both located in Block 839, Unit 26 of Cape Coral. Lots 11 and 12 face in the identical position opposite 37th Terrace that Lots 21 and 22 face opposite 37th Lane. Both lots face west on the same street. These are 4 building sites intervening between these two building sites. At the time they visited the site and at present the topography of both Lots 11 and 12 and Lots 21 and 22 are very similar and there is similar construction in the vicinity of each. When the Barbers were unable to present the map that they acknowledged had been given to them by Mr. Parker, the real estate office was disinclined to give credence to their allegation that they had been sold lots different than the ones they had been shown. The Barbers felt that they were being unfairly treated and made a complaint to the local office of the Florida Real Estate Commission. Shortly thereafter Mr. Lane visited the office of Keim & Hipshire to investigate the complaint that had been made. In the meantime Mrs. Barber was diligently searching for the map that she had been given and located this map after she had called the Real Estate Commission. While Mr. Lane was in the office of Keim and Hipshire to investigate Barber's complaint Mrs. Barber called the real estate office to advise that she had found the map. Mrs. McHenry asked her to please bring the map down, and that Mr. Lane was in the office at that time. When Mrs. Barber brought in the map it became evident that a mistake had been made either in marking the map or in showing the property to the Barbers and Defendants McHenry and Parker forthwith repurchased the lots from the Barbers. In repurchasing the lot they paid the Barbers for all expenses they had incurred. The Barbers ascertained that Lots 21 and 22 were owned by a third party who had these lots for sale. They thereafter purchased the lots from the third party for the identical price that they had originally contracted to purchase Lots 11 and 12. Mr. Parker has been selling lots in Cape Coral for some ten or eleven years. He was thoroughly familiar with the area and recognized that there were many streets with the same numbers and that it was very difficult for people to find sites in Cape Coral absent a map. When he took people out to a site in which they showed interest, he, upon returning to the office and after checking the plot plans, would mark on a map the lot that they had visited. None of the lots involved in this area are marked with signs, there are no lot markings that can readily be found and the only way that one can ascertain with certainty the lot number of a particular tract of land is by either having this lot surveyed or pacing off the distance from a known geographical location such as a street corner.
