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
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. /
Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following relevant facts were found: At all times relevant hereto, Respondent was licensed as a real estate broker or salesman in the State of Florida having been issued license No. 0402589 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker-salesman, 2701 Vasser Road, Tallahassee, Florida 32308. Initially, Respondent was licensed as a real estate salesman effective April 21, 1983. On July 9, 1982, a complaint was filed with the Wisconsin Supreme Court against the Respondent by the Wisconsin Board of Professional Responsibility (Board) alleging that Respondent had engaged in dishonesty, fraud, deceit, misrepresentation, unprofessional conduct, had filed a false grievance, and had responded falsely to questions from the Board, in violation of *SCR 20.04, 20.04(4). 20128 and 22.07(2). The court then referred the matter to a referee pursuant to SCR 21.09(4). On January 21, 1983 the Respondent and the counsel for the Board entered into a stipulation wherein Respondent stipulated that: (a) his multiple representation of the corporation and individuals in connection with negotiation for, and sale of, the property by the corporation constituted a clear conflict of interest, in violation of SCR 20.24 and 20.28; (b) that his assertion in his opinion on title that the condominium documents met applicable state law constituted misrepresentation, in violation of SCR 20.04(4); (c) that his failure to advise purchasers of the corporation's financial problems constituted misrepresentation, in violation of SCR 20.04(4); (d) that his signing of the affidavit concerning the accuracy of the closing statement and distributing the closing statement constituted misrepresentation, in violation of SCR 20.04(4); and (e) that his response to the Board, in connection with the grievance, that he was not aware at the time of the purchase of any financial problems of the corporation was false and constituted misrepresentation, in violation of SCR 22.07(2). The referee filed his report with the Wisconsin Supreme Court on January 27, 1983, in which he made his findings of fact and conclusions of law consistent with the terms of the stipulation and recommended that Respondent's license to practice law be suspended for a period of sixty (60) days and that he be required to pay $2,500 toward costs and fees incurred. On April 27, 1983 the Wisconsin Supreme Court entered its order adopting the findings, conclusions and recommendation of the referee, with the exception that the Respondent be held liable for payment of the total costs of the disciplinary proceedings. In their briefs filed with court on the appropriateness of the recommended discipline to the professional misconduct, both parties noted that Respondent was cooperative in making his records available to the Board, that no trust account errors were found, that there was no conversion of client property, and that there had been no prior disciplinary actions against the Respondent. On July 21, 1983, the Wisconsin Supreme Court entered an Order extending the time until September 30, 1983 for Respondent to pay the costs ordered in its Order of April 26, 1983 or have his license to practice law revoked. On November 16, 1983, the Wisconsin Supreme Count entered its Order revoking Respondent's license to practice law in the State of Wisconsin for failure to comply with the Court's Order of July 21, 1983 extending the time for payment of costs in the disciplinary action. On Respondent's application for licensure as a real estate broker dated October 18, 1984 and filed with Petitioner on October 22, 1984, Respondent answered "no" to question 13(a) on the application which is as follows: Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended, in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or, is any proceeding pending? (emphasis supplied)
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violations charged in the Administrative Complaint and that the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 22nd day of October, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1986.
Findings Of Fact Mr. Latter is licensed by the Florida Real Estate Commission as a real estate broker under licenses 00500688 and 0224707 and has been so licensed at all times material to this case. In July of 1981 Mr. Michael Kass offered for sale a house located at 4005 Obispo, Tampa, Florida. Mr. Latter was the listing broker on behalf of Mr. Kass. Ms. Evette C. Vining saw the house and made an offer which was for less than Mr. Kass wanted. He counteroffered to sell the house "as is" with no warranties. After numerous subsequent offers and counteroffers which included both typed and handwritten additions on several signed contracts of sale between the parties both Mr. Kass and Ms. Vining believed they arrived at an agreement and the closing was scheduled. The documents on which the parties began their negotiations were printed forms prepared by the Tampa Board of Realtors. Paragraph 2 on the prepared form provides: Seller, at his expense, shall furnish the buyer with a letter from a licensed termite inspector stating there are no visible signs of active termite infestation. In event infestation is indicated, pro perty shall be treated at expense of Seller. The copy of the Contract for Sale of Real Estate which was used by Mr. Kass and Ms. Vining at their closing had paragraph 2 lined out. That copy had been given to Respondent to have the closing documents prepared by the title company. Respondent lined out that paragraph in order to conform the second paragraph to the preceding handwritten provisions on the document providing that the sale of the house was "as is". The only warranties provided by the parties were those relating to appliances, the roof, electrical and plumbing systems which had just been recently repaired or installed by Mr. Kass. The warranties relating to those items were typed in on the back of of the contract. Mr. Latter removed paragraph 2 from the copy of the contract on which the parties closed because he believed that when a house is sold "as is" no termite inspection report is required, and if paragraph 2 had remained in the contract it would confuse and possibly delay the closing process. There is no evidence that his deletion of paragraph 2 was made with the intent of misleading, defrauding, or otherwise harming any person. Mr. Latter did not obtain the approval of either the buyer or the seller to remove paragraph 2 and he informed neither of them about the deletion until after the closing. There is considerable conflicting testimony in the record about whether or not Mr. Latter actually made the deletion of paragraph 2 himself. The finding that he did so is based on the demeanor of the testifying witnesses, their possible motives for bias and prejudice, and on the reliability of their recollection of the incident in question. Mr. Latter has been a real estate broker for almost 20 years. There has never been a grievance filed against him at the local level or a complaint previously filed before the Department of Professional Regulation concerning his conduct as a realtor. His reputation among his fellow realtors in the Tampa area is extremely good. In the Tampa area a contract for sale of real estate such as the house in question here would not normally have an "as is" clause and also provide for the seller to secure a termite inspection report. It is widely understood among realtors that an "as is" clause excludes such reports, particularly here where the "as is" clause was handwritten in the contract while the termite inspection report provision is part of the printed form.
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 dismissing the Administrative Complaint filed against Respondent Alexander M. Latter. DONE and RECOMMENDED this 1st day of February, 1984, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 1st day of February, 1984.
Findings Of Fact Louis W. George has been registered as a real estate broker in Florida for seven years; he holds license No. 0030981. At all pertinent times, he has done business as Apollo Realty of Miami, and has been, in addition, co-owner with Allen Scherer of Karma Properties, Inc. In an effort to sell a house he owned at 1105 Sharazad Boulevard in Opa locka, Florida, John F. German placed a classified advertisement in a newspaper. Seeing the ad, respondent George telephoned Mr. German and offered his services as a real estate broker. As a result, Mr. German eventually signed an agreement listing the house with Apollo Realty of Miami for 90 days, which elapsed without a sale, in late 1978 or early 1979. In June of 1979, Mr. German again visited respondent, telling him he would let the property go for $25,000. The following day respondent telephoned Mr. German to say, "I'll take it," to which Mr. German replied, "That was yesterday." Later in the telephone conversation, however, Messrs. George and German agreed on a price of $25,000. On June 29, 1979, respondent presented Mr. German with a form "Deposit Receipt." Petitioner's Exhibit No. 2. Mr. German lined through $23,500, substituted $25,000, initialled the alteration, and signed the document. Respondent had already signed. Petitioner's Exhibit No. 2 recites: Receipt is hereby acknowledged of the sum of . . .$500.00. . .from KARMA PROPERTIES, INC. proceeds to be held in escrow by APOLLO REALTY OF MIAMI subject to the terms hereof. . . This offer is subject to obtaining an FHA commitment of not less than $35,000.00 if commitment is less than-the above $35,000.00 this offer will be null and void . . . [I]n case of default by the purchaser. . .the seller may at his option retain one-half of the deposit herein paid as consideration for the release of the purchaser. . . These written provisions notwithstanding, respondent told Mr. German that he would give the $500 deposit to his attorney, rather than place it in Apollo Realty's escrow account. The deal fell through. On November 19, 1979, Albert I. Caskill, Esquire, wrote Apollo Realty of Miami, on behalf of Mr. German: Demand is herewith made upon you for the $500 deposit being held in your escrow account in relation to the above-referenced transaction. We have been notified by the attorney for the purchasers, Lawrence M. Weiner, that his clients will not be going forward with the purchase, and, accordingly, their failure to complete the transaction pursuant to the contract constitutes a breach of the agreement. Please forward all deposit moneys to this office, same being made payable to the seller, John German. Petitioner's Exhibit No. 4. The house was off the market from June until the end of November. Mr. German never received any money on account of the transaction. (He did not even get the keys back.) Respondent never deposited any money anywhere on account of this transaction, nor did he pay Mr. German any money directly. He testified that he instructed Allen Scherer, the other principal in Karma Properties, Inc., to deposit $500 with Lawrence Weiner, Esquire; that he read Mr. Caskill's letter of November 19, 1979, and passed it on to Mr. Scherer with instructions to "correct" (T. 36) the situation; but only learned that there was no money in escrow when he received the administrative complaint with which these proceedings began. In these particulars, respondent's testimony has not been credited. The parties stipulated that Mr. Weiner would testify, under oath, that he "never held or received any money in connection with the subject transaction." Petitioner filed a proposed recommended order which has been reviewed and considered. The proposed findings of fact have been adopted in substance for the most part. Proposed findings of fact not adopted have been rejected as immaterial or as inconsistent with the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner reprimand respondent. DONE AND ENTERED this 11th day of May, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 11th day of May, 1982. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124 Street North Miami, Florida 33161 Adam Kurlander, Esquire 1820 Northeast 163 Street North Miami Beach, Florida 33162 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondents violated the provisions of Section 475.624, Florida Statutes (2007), and Florida Administrative Code Rule 61J1-7.001, as charged in the Administrative Complaints, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of real estate appraisers pursuant to Section 20.165 and Chapters 455 and 475, Part II, Florida Statutes (2009). Respondent, Fred Catchpole, is a licensed real estate appraiser, having been issued license number RD-7674. Respondent, William E. Woods, is a registered trainee appraiser, issued license RI-4855. At the times relevant to these complaints, Mr. Woods was supervised by Respondent Catchpole. On October 8, 2009, the Department issued Administrative Complaints against both Respondents. At the heart of both Administrative Complaints were allegations related to an appraisal report allegedly prepared by Catchpole and Woods. With the exception of the order in which Respondents are identified, the allegations in paragraphs four and six of the Administrative Complaints are identical. Quoting from the Administrative Complaint in Case No. 09-6822 (DBPR Case No. 2009016581), the Administrative Complaint alleges the following: On or about September 25, 2007, Fred Catchpole (Respondent) and William Woods developed and communicated an appraisal report (Report 1) for property commonly known as 2250 Braxton Street, The Villages, Florida 32162 (Subject Property), and estimated its value at $190,000.00. A copy of Report I is attached hereto and incorporated herein as Administrative Complaint Exhibit 1. * * * 6. Respondent made the following errors and omissions in Report 1: Incorrect effective on the cover of the report, the correct date is September 25, 2007; Incorrect effective date on in the Reconciliation section of the report; Incorrect effective date on the signature page of the Report; Incorrect Subject Property Inspection date on the signature page of the Report; Incorrect Comparable Sales inspection date on the signature page of the report; . . . . The Amended Administrative Complaint alleges the same facts, with the same dates. At hearing, it was established that there is no appraisal report developed or communicated that is dated September 25, 2007. The Report, attached to each Administrative Complaint and each Amended Administrative Complaint, is actually dated February 25, 2007. Once it was established that there was no appraisal report matching the dates alleged in the Administrative Complaint, the Department moved to dismiss the Amended Administrative Complaints in their entirety, with prejudice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Appraiser's Board enter Final Orders with respect to each Respondent dismissing the Amended Administrative Complaints in their entirety. DONE AND ENTERED this 27th day of April, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2010. COPIES FURNISHED: Robert Minarcin, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757 Fred Catchpole 5449 Marcia Circle Jacksonville, Florida 32210 William Woods 2103 Herndon Street Dover, Florida 33527 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757
Findings Of Fact Respondent is a registered real estate broker and was so licensed at all times relevant to this proceeding. At the time of the alleged forgeries, Respondent was an officer of John F. Ring Realty, Inc., and was the manager of that firm's office at 201 North University Drive, Ft. Lauderdale, Florida. On June 25, 1980, Respondent wrote two checks on the account of John F. Ring Realty, Inc., payable to Phyllis Cohen in the sum of $425, and to Ann Sanders in the sum of $550. On July 10, 1980, and on the same account, Respondent wrote a second check to Phyllis Cohen in the amount of $1,000. On September 19, 1980, on the same account, Respondent wrote a check payable to Dan Dickerhoff in the sum of $1,210. Respondent wrote a fifth check on this account on September 26, 1980, payable to Rose Friedman, in the sum of $815. All of these checks were purportedly written to cover sales commissions. Each check bore an endorsement which was purportedly that of the payee, and was endorsed by Respondent. Each named payee testified that the endorsement was not his or her signature, that he or she was not entitled to the funds represented by the checks, and never received the check or the funds. Each identified the signature of Respondent as the drawer. Respondent admitted to his ex-partner, Petitioner's investigator and Phyllis Cohen that he had endorsed and cashed these checks. Respondent also apologized to Ann Sanders when she confronted him with the forgery. These were statements against interest and are therefore admissible as hearsay exceptions. 1/ Respondent's character witnesses established that he has a good reputation in the realtors community. These witnesses have found Respondent to be honest and reliable, and would continue doing business with him regardless of any adverse findings here.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of allegations set forth in the Administrative Complaint. It is further RECOMMENDED that Respondent's license as a real estate broker be revoked. DONE AND ENTERED this 28th day of December, 1981, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1981.
The Issue Whether or not Respondent's registration as a real estate salesman should be revoked for violation of Section 475.25(2), F.S. The Hearing Officer explained to the Respondent the nature of the hearing and his rights under the Administrative Procedure Act, including the right to be represented by counsel at his own expense if he so desired. It was also explained to the Respondent that he could testify in his own behalf, that he is not required to do so, and that if he did so testify, he could be cross-examined by counsel for Petitioner. Respondent acknowledged understanding of these rights and elected not to testify in his own behalf.
Findings Of Fact 1. Counsel for Petitioner introduced into evidence Respondent's application for registration as a real estate salesman (Petitioner's Exhibit 1) and rested his case. No evidence was introduced in support of the allegation against the Respondent.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated March 3, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for investigating complaints filed against registered, licensed, or certified real estate appraisers and for prosecuting disciplinary actions against such persons. § 455.225, Fla. Stat. (2005). The Florida Real Estate Appraisal Board ("Board") is the state agency charged with regulating, licensing, and disciplining real estate appraisers registered, licensed, or certified in Florida. § 475.613(2), Fla. Stat. (2005). At the times material to this proceeding, Mr. Rutan was a certified residential real estate appraiser in Florida, having been issued a license numbered RD 2791. Mr. Rutan had been a certified residential real estate appraiser in Florida for approximately 10 years. At the time of the events giving rise to this action, Mr. Rutan was employed by Excel Appraisal. Mr. Rutan interviewed and hired Frank Delgado, Juan Carlos Suarez, and Ricardo Tundador to work at Excel Appraisal as state-registered assistant real estate appraisers. At all times material to this proceeding, Mr. Rutan was Mr. Suarez’s supervisor and was responsible for Mr. Suarez’s appraisals. On or about June 16, 1999, Mr. Suarez prepared an appraisal for property located at 9690 Northwest 35th Street, Coral Springs, Florida, in which he valued the property at $325,000. The property is a multi-family, four-plex property. Mr. Rutan signed Mr. Suarez's appraisal as the supervisory appraiser and certified on the appraisal that he had inspected the property by placing an “X” in the "Inspect Property" box. The appraisal form signed by Mr. Rutan contains a "Supervisory Appraiser's Certification" that provides: If a supervisory appraiser signed the appraisal report, her or she certifies and agrees that: I directly supervise the appraiser who prepared the appraisal report, have reviewed the appraisal report, agree with the statements and conclusions of the appraiser, agree to be bound by the appraiser's certifications numbered 4 through 7 above, and am taking full responsibility for the appraisal and the appraisal report. It is the custom in the industry that a supervisory appraiser who certifies that he or she has inspected the property in question must inspect the property inside as well as outside before he or she can sign the appraisal. Mr. Rutan inspected the property the day after he signed the appraisal and only inspected the property from the outside. The appraisal report on the property at issue herein listed a prior sale of the property from Rodney Way to Doyle Aaron for $325,000 on April 28, 1999. The appraisal failed to list the sale of the property on the same day from Julius Ohren to Rodney Way for $230,000. Mr. Rutan did not investigate the relevant sales history of the property and was unaware, therefore, that the property had been “flipped” and was considerably overvalued in the appraisal report.2 Mr. Rutan admitted that he did not investigate prior sales and that the property was substantially overvalued. Mr. Suarez listed in the appraisal report three "comparable sales," that is, sales of properties similar in type and location to the property being appraised, to support the valuation of $350,000. The first comparable property used in the appraisal was property located at 4102 Riverside Drive, Coral Springs, which was listed in the appraisal report as being previously sold for $315,000. Earlier on the day that the Riverside Drive property was sold for $315,000, however, it had been sold for $185,000. Mr. Rutan failed to research and review the sales of the comparable properties that were included in Mr. Suarez's appraisal report, and the "comparable sale" of property on Riverside Drive was not properly used to value the property that was the subject of the appraisal report at issue herein. Mr. Suarez failed to make the proper adjustments in value on the Riverside Drive property based on the features of that property that were superior to the features of the subject property. The Riverside Drive property was located on a canal and should have had a negative adjustment with respect to the subject property, which was not on a canal. Mr. Suarez included a positive adjustment in the comparable sales data for the Riverside Drive property. Mr. Rutan failed to review the comparable property adjustments submitted by Juan Carlos Suarez for the appraisal of the subject property. Mr. Suarez overstated the rental income of the subject property in his appraisal report. Mr. Rutan failed to research and review the rental figures Mr. Suarez submitted. When Mr. Rutan was notified by Brokers Funding, a company that purchased the loans on the subject property, that there were problems with the appraisal done by Mr. Suarez, Mr. Rutan checked additional comparable sales and interviewed the tenants in the building. He also hired another appraiser to conduct an appraisal of the subject property. Based on his investigation and Mr. Salimino’s appraisal, Mr. Rutan discovered the problems in Mr. Suarez's appraisal and report of the subject property. Mr. Salimino’s appraisal for the subject property was $290,000, but Mr. Rutan estimated that his appraisal would have been approximately $250,000. Mr. Rutan fired Mr. Suarez, as well as Frank Delgado, and Ricardo Tundador, all three of whom were subsequently indicted on federal charges relating to real-estate-appraisal scams. In a Final Order entered on April 22, 2002, Mr. Rutan was found guilty by the Board of violating Sections 475.624(14) and 475.624(15), Florida Statutes, and was ordered to pay an administrative fine of $1,000. Mr. Rutan trusted Mr. Suarez to do an honest and competent appraisal and was rushed by Mr. Suarez to approve the appraisal on the subject property. The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that Mr. Rutan failed to carry out his responsibilities as Mr. Suarez's supervisory appraiser, failed to review Juan Carlos Suarez’s appraisal for accuracy, and failed to inspect the inside of the subject property, which caused or contributed to the substantially over-stated valuation of the subject property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Appraisal Board enter a final order finding that William Rutan is guilty of violating Section 475.624(10), (14), and (15), Florida Statutes, as alleged in Counts I through IV of the Administrative Complaint and revoking Mr. Rutan's Florida certification as a real estate appraiser. DONE AND ENTERED this 31st day of August, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 31st day of August, 2005.
Findings Of Fact Ciccarelli and Moreau are registrants with the Florida Real Estate Commission (Board of Real Estate), both holding registrations as saleswomen. Ciccarelli and Moreau were the real estate salespersons who handled the transaction for the sale of a residence between Dessie Wilson, the seller, and Carl Dudley, the buyer. Darlene Becker, Wilson's daughter, also owned an interest in the property but was not an actual party to the negotiations between Wilson and Dudley as mediated by Ciccarelli and Moreau. Ciccarelli and Moreau presented to Wilson the contract for sale and purchase containing Dudley's initial offer signed July 13, 1978. A copy of this contract was introduced as Exhibit 7. Wilson made a counter offer by interlineating and initialing certain terms in the contract on July 14, 1978, as indicated by her signature and date on Exhibit 2. Dudley had returned to Fort Myers, Florida, where he was living, and Ciccarelli and Moreau communicated Wilson's counter offer to him by telephone July 18, 1978. Dudley made a counter-counter offer in which he accepted the cash terms proposed by Wilson but included the cement table and benches described in Paragraph 1(c) of the contract in the purchase. The table and benches had been stricken and initialed by Wilson in her offer. Ciccarelli and Moreau annotated the contract to reflect the inclusion of these items in the sale by adding "OK for cement table and benches" to Paragraph 1(c). This contract was not initialed by Dudley before presentation to Wilson because Dudley was in Fort Myers. See Exhibit 9. Ciccarelli and Moreau presented the contract, Exhibit 9, to Wilson, who accepted the terms orally. Ciccarelli and Moreau then sent the contract to Dudley by the letter dated July 18, 1978, Exhibit 4. This letter advised Dudley to initial the contract's changes to include the cement table and benches. Dudley did so and returned the contract to Ciccarelli and Moreau, who then presented the contract to Wilson's daughter, Darlene Becker. Becker executed the contract, Exhibit 9, after it was returned. The transaction closed afterward, and a conveyance of the property and payment were exchanged. The closing was attended by Dudley and Wilson, and no objection to the terms of the contract was raised by either party. After closing a controversy arose between Wilson and Dudley concerning the transfer of the cement table and benches. Wilson returned to Dudley the table and benches which she had removed. Paragraph X of the general provisions of the contract provides that the buyer may request personal property be conveyed by absolute bill of sale.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the licenses of Ciccarelli and Moreau. DONE and ORDERED this 17th day of March, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 1001, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1980. COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Harvey R. Klein, Esquire 333 North West Third Avenue Ocala, Florida 32670
