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 The issues are whether Respondent failed to communicate an appraisal without good cause in violation of Section 475.624(16), Florida Statutes (2001); whether Respondent is guilty of fraud, misrepresentation, concealment, false promise, false pretenses, dishonest conduct, culpable negligence, or breach of trust in any business transaction in violation of Section 475.624(2), Florida Statutes (2001); and, if so, what penalty should be imposed on Respondent's license.
Findings Of Fact Petitioner is the state agency responsible for regulating persons licensed in Florida as real estate appraisers. Respondent is licensed in Florida as a general real estate appraiser pursuant to license number RZ0000252. Petitioner issued the current license to Respondent at 410 Cortez Road West, Suite 405, Bradenton, Florida 34207. On or about October 12, 2002, Respondent met with Ms. Pauline Ney, the sole owner, at the time, of real property that included a single family residence located at 11001 25th Street East, Parrish, Florida (the property). The property is one of several large, estate-type parcels along the Manatee River. Each parcel in the area ranges greatly in size and quality. The property includes a dock and approximately 242 feet of "river frontage" along the back of the property. The property also includes a spring-fed, freshwater pond to the front; a brackish saltwater lagoon to the rear; a tennis court; a semi-private guest suite with a kitchenette, living room, bedroom, and bathroom; and other amenities. Respondent learned at the meeting with Ms. Ney on October 12, 2002, that Ms. Ney intended to sell the property and wanted an appraisal from Respondent in order to determine a market value for the property. Respondent agreed to develop, communicate, and deliver an appraisal of the property. The real estate broker (broker) with whom Ms. Ney intended to list the property was present during part of the meeting between Ms. Ney and Respondent and testified at the hearing. Ms. Ney asked Respondent for an estimated market value of the property. Respondent physically inspected the property and obtained the information needed for an appraisal. Ms. Ney provided Respondent with floor plans and a survey of property and paid Respondent $500. Respondent stated to Ms. Ney that an appraisal would require some time. Respondent explained, "This is a very unique property, and it's going to be hard to find comparables." Ms. Ney pressed Respondent for a "ballpark" figure because Ms. Ney wanted to place the property on the market at the earliest opportunity. Respondent admits he stated, "I would not sell it for less than a million." Respondent testified at the hearing that he verbally appraised the property at a value of $750,000 to $850,000, but further stated that he would not sell the property for less than $1 million. Respondent further testified that he provided a written appraisal to Ms. Ney by e-mail while Ms. Ney was out of town on an extended vacation. Respondent's testimony concerning the alleged oral appraisal of $750,000 to $850,000 on October 12, 2002, and subsequent appraisal by e-mail is neither credible nor persuasive to the trier of fact. The statements Respondent claims he made do not constitute an appraisal within the meaning of the Uniform Standards of Professional Appraisal Practice (USPAP). The statements do not satisfy relevant requirements in Standard 2 Real Property Appraisal, Reporting, page 21, USPAP-2001 (Standard 2). The purported statement that the property is worth $750,000 to $850,000, but that Respondent would not sell the property for less than $1 million is misleading within the meaning of Standard 2. Respondent's statements did not contain sufficient information to enable the intended users to understand the information properly. Finally, the statements by Respondent did not clearly and accurately disclose limiting conditions, including the shared use of water supply with an adjacent property owner, and the impact of those conditions on the value of the property. Respondent never delivered an appraisal to Ms. Ney, either oral or written. Respondent failed to communicate an appraisal without good cause in violation of Section 475.624(16), Florida Statutes (2001). Respondent asserts that he provided Ms. Ney with a verbal appraisal on October 12, 2002, and later provided a written appraisal to Ms. Ney by e-mail while Ms. Ney was out of town on an extended vacation. Respondent's failure to provide a written appraisal to Ms. Ney constitutes culpable negligence and a breach of trust in a business transaction in violation of Section 475.624(2), Florida Statutes (2001). The business purpose of the transaction was to obtain a written appraisal suitable for the broker to show potential purchasers of the property and thereby facilitate the sale of the property. It would be credulous to find, as Respondent testified, that Ms. Ney paid Respondent $500 for the verbal statements Respondent provided to Ms. Ney on October 12, 2002. Respondent's testimony demonstrated ample business acumen for him to understand the business purpose for the $500 he received from Ms. Ney. Respondent's failure to provide an appraisal to Ms. Ney caused Ms. Ney to suffer financial harm, including the cost of a second appraisal and the delay in the sale of the property. Ms. Ney subsequently obtained a written appraisal from a second appraiser. The written appraisal valued the property as of November 25, 2002, at $775,000. The appraiser signed the appraisal on January 7, 2003. The written appraisal contains approximately 10 limiting conditions not included in the verbal statements Respondent claims in his testimony that he provided to Ms. Ney on October 12, 2002. Ms. Ney listed the property with the broker sometime in February or March of 2003. The broker listed the property at a listing sale price based on the written appraisal provided by the second appraiser. Ms. Ney eventually completed the sale of the property. Between October 12, 2002, and January 7, 2003, Ms. Ney was unable to sell the property. The property was unusual, and the broker needed an appraisal to establish a listing price. Respondent understood that Ms. Ney wanted to list the property as soon as possible but could not do so without a written appraisal. On several occasions, during November and December of 2002, the broker's assistant attempted to contact Respondent to obtain a written appraisal. Respondent did not respond. Respondent testified unpersuasively that he was unaware that Ms. Ney had not received the appraisal by e-mail or that the broker had tried to contact Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Board enter a Final Order finding that Respondent violated Subsections 475.624(16) and 475.624(2), Florida Statutes (2001); imposing an administrative fine of $2,000; and suspending Respondent's license for 60 days. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 28th day of January, 2004. COPIES FURNISHED: Don Alan Moore Post Office Box 1339 Bradenton, Florida 34206 Alfonso Santana, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801, North Orlando, Florida 32801-1757 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jason Steele, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802, North Orlando, Florida 32801-1772
Findings Of Fact George A. Heyen is a duly registered real estate salesman with the Florida Real Estate Commission, and was so registered and has been so registered continuously since October 1, 1972, as evidenced by Petitioner's Exhibit number 1. While serving in the capacity as a real estate salesman, the Respondent entered into a listing agreement with one Thomas S. Bowers and Brenda L. Bowers, his wife. This agreement was drawn on December 11, 1973 and is Petitioner's Exhibit number 4. On February 6, 1974, a purchase and sell agreement was drawn up by the Respondent and entered into between Maria A. Hindes and the Bowers. This purchase and sell agreement is Petitioner's Exhibit number 3. This contract of February 6, 1974 was submitted to Molton, Allen and Williams, Mortgage Brokers, 5111 66th Street, St. Petersburg, Florida. The contract, as drawn, was rejected as being unacceptable for mortgage financing, because it failed, to contain the mandatory FHA clause. When the Respondent discovered that the February 6, 1974 contract had been rejected, a second contract of February 8, 1974 was prepared. A copy of this contract is Petitioner's Exhibit number 5. The form of the contract, drawn on February 8, 1974, was one provided by Molton, Allen and Williams. When, the Respondent received that form he prepared it and forged the signature of Mr. and Mrs. Bowers. The explanation for forging the signatures as stated in the course of the hearing, was to the effect that it was a matter of expediency. The expediency referred to the fact that the parties were anxious to have a closing and to have the transaction completed, particularly the sellers, Mr. and Mrs. Bowers. Therefore, in the name of expediency the signatures were forged. Testimony was also given that pointed out the Bowers were very hard to contact in and around the month of February, 1974, and some testimony was given to the effect that the Bowers made frequent trips to Ohio, but it was not clear whether these trips would have been made in the first part of February, 1974. The Bowers discovered that their name had been forged when they went to a closing on April 11, 1974. They refused to close the loan at that time. On April 24, 1974, a new sales contract was followed by a closing which was held on April 26, 1974 and a copy of the closing statement is Petitioner's Exhibit number 6. The Respondent has received no fees or commissions for his services in the transaction and there have been no further complaints about the transaction. Prior to this incident, the Respondent, George A. Heyen, was not shown to have had any disciplinary involvement with the Florida Real Estate Commission and has demonstrated that he has been a trustworthy individual in his business dealings as a real estate salesman.
Recommendation It is recommended that the registration of the registrant, George A. Heyen, be suspended for a period not to exceed 30 days. DONE and ENTERED this 8th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 George A. Heyen c/o Gregoire-Gibbons, Inc. 6439 Central Avenue St. Petersburg, Florida 33710
The Issue Whether the Respondent's real estate license should be disciplined because the Respondent has been found guilty of a crime which directly relates to the activities of a licensed real estate salesman or involves moral tupitude or fraudulent or dishonest dealing.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times pertinent to the charges, the Respondent was a licensed Florida real estate salesman having been issued license number 0400199 in accordance with Chapter 475, Florida Statutes. The license issued during all times material to the facts alleged in the Administrative Complaint was as salesman, % Emerson Realty Group of Volusia County, Inc., 322 Silver Beach Avenue, Daytona Beach, Florida 32018. The Respondent, in the United States District Court, Middle District of Florida, entered a plea of guilty to one count of filing a false tax return, a felony, whereupon on October 17, 1988, the Respondent was sentenced to a period of probation and fined $2,500. Via letter dated October 31, 1988, the Respondent's attorney timely notified the Petitioner of the felony charges, plea and disposition. In mitigation, Respondent testified and his exhibits indicate that Respondent's former wife was the office manager and book keeper until 1983. Respondent did not prepare the income tax return for which he entered his plea, his former wife did so. He relied on his former wife's competency and goodwill in preparing all documents relating to his main business, the pest control business. She reported the errors on his income tax returns to the Internal Revenue Service out of spite and greed (in hopes of collecting a 10% reward). The basis for the conviction of filing a false tax return did not involve a real estate transaction. Respondent has no prior convictions for any other crime.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and the evidence of the record, including the contents of the several exhibits received into evidence, it is, therefore: RECOMMENDED that the Respondent William Lea be found guilty of having violated Subsection 475.25(1)(f), Florida Statutes (1987) as charged in the Administrative Complaint. It is further: RECOMMENDED that Respondent William Lea receive a reprimand, an administrative fine of $400.00. DONE and ENTERED this 27th day of June, 1989 in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Recommended Order: Paragraphs 1 - 3. Accepted Respondent's Proposed Recommended Order: Respondent did not submit separate findings of fact. COPIES FURNISHED: STEVEN W. JOHNSON, ESQUIRE SENIOR ATTORNEY DPR - DIVISION OF REAL ESTATE 400 W. ROBINSON STREET P.O. BOX 1900 ORLANDO, FLORIDA 32802 HARRISON SLAUGHTER, ESQUIRE 56 EAST PINE STREET, SUITE A ORLANDO, FLORIDA 32801 DARLENE F. KELLER, DIVISION DIRECTOR DIVISION OF REAL ESTATE 400 W. ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 KENNETH E. EASLEY, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE 1940 NORTH MONROE STREET SUITE 60 TALLAHASSEE, FLORIDA 32399-0792
The Issue Whether Petitioner, Victor Jesus Monzon (Mr. Monzon), should be awarded attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011). Because of a stipulation reached by the parties, the only issues are (1) whether Mr. Monzon qualified as a "small business party," and (2) whether the Department of Business and Professional Regulation (the Department) was "substantially justified" in initiating the disciplinary proceedings against Mr. Monzon that culminated in DOAH Case No. 10-9926PL.
The Issue The issues in this case are whether Respondent, Jessalyn Rodriguez, committed the violations alleged in a seven-count Administrative Complaint, filed with the Petitioner Department of Business and Professional Regulation on June 10, 2008, and, if so, what disciplinary action should be taken against her Florida real estate appraiser certification.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes. The Division is charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. Respondent, Jessalyn Rodriguez, is, and was at the times material to this matter, a Florida-certified residential real estate appraiser having been issued license number 4120. The last license issued to Ms. Rodriguez is now an inactive Florida-certified residential real estate appraiser license at 12071 Southwest 131st Avenue, Miami Florida 33166. Appraisal of 6496 Southwest 24th Street. On or about June 1, 2007, Ms. Rodriguez developed, signed and communicated an appraisal report (hereinafter referred to as the “Appraisal”), for property located at 64967 Southwest 24th Street, Miami, Florida 33155 (hereinafter referred to as the “Subject Property”). At the time the Appraisal was made, Ms. Rodriguez was a Florida-certified residential real estate appraiser. The Subject Property, however, was zoned BU-1, a commercial district. The Administrative Complaint entered against Ms. Rodriguez, however, does not allege that Ms. Rodriguez committed any violation by performing an appraisal on commercially zoned property. Errors and Omissions in the Appraisal. Ms. Rodriguez on her sketch of the Subject Property contained in the Appraisal indicates that the total square footage of the Subject Property is 2,105 square feet. On the sketch, she breaks down the property into a 34.0 x 55.6 area of 1890.4 square feet, and a 5.0 x 43.0 area of 215 square feet. In her documentation for the Appraisal, Ms. Rodriguez notes that the adjusted square footage of the Subject Property is 1,890 square feet and that the property appraiser reported the square footage at 1,709 square feet. Ms. Rodriguez failed to verify that the reported 2,105 square feet contained in the Appraisal was accurate. Ms. Rodriguez admitted in her Answer and Response to Administrative Complaint, Respondent’s Exhibit 1, that she failed to verify that a rear addition to the Subject Property, most likely the 5.0 x. 43.0 additional area she measured, had not been permitted through Miami-Dade County. This unpermitted addition would account for the discrepancy in the square footage of the Subject Property noted in Ms. Rodriguez’s notes. Had she investigated the discrepancy in square footage, it is possible she would have discovered the unpermitted addition and reported it in the Appraisal. Ms. Rodriguez indicates in the Appraisal that the Subject Property has a “porch.” The “porch” she was referring to is a rather small area in the front of the Subject Property which has an overhang. The evidence failed to prove that this area, which is depicted in photos accepted in evidence, does not constitute a “porch.” Ms. Rodriguez incorrectly indicated in the Appraisal that the Subject Property had a “patio.” Her suggestion that a “grass area” constituted a patio is rejected as unreasonable. While the Subject Property has a small “yard,” it does not have a patio. Ms. Rodriguez failed to indicate in the Appraisal that the Subject Property did not have any “appliances.” The fact that appliances were to be installed after closing fails to excuse this omission. Ms. Rodriguez did not make any adjustment for, or any explanation of, the 13-year age difference between the Subject Property and comparable sale 3. The Supplemental Addendum section of the Appraisal incorrectly reports that the Subject Property had wood floors and that it had a new pool deck. Ms. Rodriguez has admitted these errors, indicating that they are “[t]ypographical error[s] but did not effect value since no monetary adjustment was made.” Failure to Document. Ms. Rodriguez’s documentation for the Appraisal lacked a number of items, all of which Ms. Rodriguez admits were not maintained. The missing documentation included the following items which were not contained in her work file: Support for a $40 per square foot adjustment for comparable sale 1 and comparable sale 3 in the Sales Comparison Approach section of the Appraisal; Support for a site size adjustment made to comparable sale 1 and comparable sale 2 in the Sales Comparison Approach section of the Appraisal; Support for a $1,500.00 “bathroom” adjustment to comparable sale 1, comparable sale 2, and comparable sale 3 in the Sales Comparison Approach section of the Appraisal; Support for a $5,000.00 “good” location adjustment made to comparable sale 1 and comparable sale 2 in the Sales Comparison Approach section of the Appraisal; Support for the $4,000.00 garage adjustment made to comparable sale 2 in the Sales Comparison Approach section of the Appraisal; Support for the $15,000.00 pool adjustment made to comparable sale 2 in the Sales Comparison Approach section of the Appraisal; Support for the $350,000.00 Opinion of Site Value in the Cost Approach section of the Appraisal; Support for the $10,000.00 adjustment for the “As Is” Value of Site Improvements in the Cost Approach section of the Appraisal; Support for the $20,000.00 adjustment for Appliances/Porches/Patios/Etc. in the Cost Approach section of the Appraisal; and Marshall and Swift pages for the time frame that the Appraisal was completed to justify the dwelling square footage price in the Cost Approach section lf the Appraisal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission: Finding that Ms. Rodriguez is guilty of the violations alleged in Counts One through Seven of the Administrative Complaint as found in this Recommended Order; Placing Ms. Rodriguez’s appraiser license on probation for a period of two years, conditioned on her successful completion of the 15-hour USPAP course; Requiring that she pay an administrative fine of $2,000.00; and Requiring that she pay the investigative costs incurred in this matter by the Division. DONE AND ENTERED this 23rd of February, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2009. COPIES FURNISHED: Ainslee R. Ferdie, Esquire Ferdie & Lones, Chartered 717 Ponce de Leon Boulevard Suite 223 Coral Gables, Florida 33134 Jessalyn Rodriguez 9972 Southwest 125th Terrace Miami, Florida 33176 Robert Minarcin, Esquire Department of Business & Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801-1757 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the Respondent's Florida Appraisal License should be disciplined upon the charge that the Respondent performed appraisal services in a careless or negligent manner in violation of Uniform Standards of Professional Appraisal Practice, Rule 1-l(c), Florida Administrative Code, and in violation of Subsection 475.624(14), Florida Statutes.
Findings Of Fact The Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to Florida Statutes. The Respondent, Michael B. Limanti, is now and was at all times material to the Administrative Complaint, a State Certified General Real Estate Appraiser having been issued license number RZ000708, in accordance with Chapter 475, Florida Statutes. The last license issued to the Petitioner as a State Certified General Real Estate Appraiser listed his address as 807 St. Johns Avenue, Palatka, Florida 32177. On or about March 26, 1996, the Respondent conducted an appraisal of residential property owned by John and Carol Sherer for a fee of Three Hundred Dollars ($300.00), paid by the Sherers. The Respondent's residential appraisal report, which was received as Exhibit 1, indicated that the real property being appraised was located at 115 Shoreside Trail, in Crescent City, and estimated the market value of the real property at Fifty-Three Thousand Five Hundred Dollars ($53,500.00). The appraisal report contained the following factual assertions which were the subject of the controversy concerning the descriptions of the subject property: A private road adjoining the property was marked as being public on the appraisal form. There were no notes in the comments about the road. The road was a private road with a public easement. There was no clear evidence of the road's status. The appraisal form specifically referenced paragraph six of the form, which is a general disclaimer provision. The age of the house was stated as an effective age of twenty (20) years. The house was built in 1979. The appraisal was in 1996. The effective age of the house takes into consideration maintenance and other conditions. Another appraiser appraised the house subsequent to the Respondent's appraisal. The opinion of the Department's expert at hearing is that the age of the house was not inordinately different from the Respondent's opinion, and was not a major factor. The Petitioner's appraisal report contained several mix-statements regarding the characteristics of the house. The full bathroom was mix-characterized as .75 of a bathroom. The floors of the house were erroneously indicated as being carpeted, when in fact they were vinyl tile at the time of the appraisal. The walls were characterized as sheet rock, when in fact they were wooden paneling. The appraisal also referenced a scuttle hole, which does not exist. The Department's investigator interviewed the Respondent who stated that he had made a mistake in entering data from his notes regarding the property. However, the Respondent felt that the errors were inconsequential and did not affect the value of the property. The Department's expert opined that the aforementioned errors indicated carelessness; however, the Department's expert agreed that they did not impact the ultimate value of the property. The photographs, purportedly of the subject property, were identified by the owner and the Department's expert as not being of the lakefront on the subject property. The Department's expert opined that the difference in square footage of the Respondent's appraisal and the second appraisal was negligible and within limits. The principal objection of the Department's expert was to the location of the properties selected as comparables. One of the properties was on a smaller lake, another on a larger lake, and the third on a canal adjoining the St. Johns River. However, in each instance the price of the other properties has been adjusted by Respondent with regard to the site location. Upon cross-examination, the Department's expert indicated that there were few sales of property due to a depressed market at the time the appraisal was conducted and there were a limited number of "comparables" from which to select. The Department's expert was most concerned about the Respondent's choice of comparable sales which the expert felt were inappropriate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Petitioner enter its Final Order finding Respondent in violation of Section 475.624(14), Florida Statutes, and fine him $1,000 and place him on probation for one(1) year. DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997.
The Issue Whether the Respondent, Antonio Prieto, committed the violations alleged in the Administrative Complaint involving the standard for the development of or the communication of a real estate appraisal and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, the Petitioner is the state agency charged with the responsibility of regulating persons holding real estate appraisers' licenses in Florida. At all times material to the allegations of this matter the Respondent has been a State-certified residential real estate appraiser holding license number RD0000591. On or about July 6, 1995, the Respondent prepared an appraisal report for property located at 2821 Coacoochee Street, Miami, Florida. The appraisal report completed for this property did not contain a certification page. When the Department requested Respondent's entire appraisal file for the Coacoochee property, the Respondent failed to produce a certification page in connection with the work performed for this appraisal. The Respondent acknowledged that an appraisal report without the certification page is considered incomplete. The Respondent provided no credible explanation for the failure to maintain the certification page for the Coacoochee appraisal report file. On or about September 8, 1998, the Respondent was responsible for a second appraisal report for real property located at 12695 Southwest 92nd Avenue, Miami, Florida. As of the date of the second report, the estimated value of the subject property was noted to be $395,000. In the development of the second report the Respondent acted as a supervisory appraiser to Rita Rindone, a State-registered assistant real estate appraiser. In the Respondent's presence, Ms. Rindone provided the Department with a copy of the entire work file for the second property's appraisal report. Inconsistent and incomplete information in the work file for the second property revealed errors in following USPAP standards. For example, the alleged existence of an unrecorded quit claim deed and the disparity between the subject property's listed price ($268,000) and the appraised value should have been "red flags" to the Respondent. In fact the listing was not even disclosed in the appraisal report (an error the Respondent acknowledged). As the supervisor to Ms. Rindone, the Respondent was responsible to ensure that the standards of USPAP were followed. Based upon the testimony of the expert, DeFonzo, it is determined that the Respondent's failures in connection with the second appraisal report constitute negligence, gross negligence, incompetence, or fraud. The USPAP standards require appraisers to maintain records for at least five years. Some circumstances may warrant a longer retention of records. At the minimum the Respondent should have maintained a complete work file for the relevant period of time for the Coacoochee property. The failure to make that complete file available to the Department is a violation of law. The USPAP standards require that the methodology option used in preparing an appraisal report be prominently stated. The option used for the second property was not so stated. Such failure is a violation of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Appraisal Board enter a Final Order determining the Respondent has violated Sections 475.624(14), and (15), Florida Statutes, and imposing an administrative fine in the amount of $3000.00, together with suspending the Respondent's license for a period of five years. Further, it is recommended that prior to being actively licensed, the Respondent be required to complete a continuing education course to establish familiarity with USPAP and all rules and regulations governing licensees in this state. DONE AND ENTERED this 23rd day of December, 2002, in Tallahassee, Leon County, Florida. _________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2002. COPIES FURNISHED: Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 James R. Mayfield, Esquire 18080 Palm Point Drive Jupiter, Florida 33458 Stacy N. Robinson Pierce, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N308 Orlando, Florida 32802
Findings Of Fact On October 3, 1975, Respondent filed an application with Petitioner for registration as a real estate broker (Stipulation, Petitioner's Exhibit 2). That said application contained therein Question 8 which is set forth in paragraph 2 of the Amended Complaint and to which Respondent answered "No." (Stipulation, Petitioner's Exhibit 2.) That thereafter the application was approved and the Respondent subsequently received his registration as a real estate broker and has been continuously registered the Petitioner as a broker since December 22, 1975 (Stipulation.) That at the time of the execution of the application, as aforesaid, Respondent'S answer to Question 8 was incorrect in that he failed to reveal, disclose and fully explain a Complaint filed against him on August 6, 1973, in the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, by one Kenneth Beard, an individual, which complaint alleges false representations on the part of the Respondent in a business transaction. A judgment of the aforesaid Circuit Court in the above-mentioned action was in the process of appeal at the time Respondent filed his application for registration as a real estate broker (stipulation.) Respondent testified at the hearing substantially as follows: After the civil action had been filed against him, he sought the advice of counsel who informed him that the complaint therein was defective as a matter of law. He was therefore of the opinion that there was not a viable suit against him at the time he filled out his application, and thus was not attempting to mislead or hide any facts from the Petitioner. He also felt that, since he had not, in fact, committed any fraud or misrepresented any matters to the purchaser of the business in question, a negative answer on the question in the application was justified. However, upon reflection at the hearing, he conceded that, probably he had misread the question and misconstrued its meaning. Respondent's good reputation for truth and veracity in the community and in his business dealings was attested to by past officials of the Clearwater, Largo, Dunedin Board of Realtors (Testimony of Merhige, Blanton).
Recommendation That the Complaint against Respondent, William D. Folz, be dismissed. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Richard B. Moritz, Esquire 801 West Bay Drive Suite 704 Largo, Florida 33540
