The Issue Petitioner's Administrative Complaint dated March 5, 1997, charges that Respondent, Barbara Cogan, obtained a license by means of knowingly submitting false information or engaging in misrepresentation in violation of Section 475.624(12), Florida Statutes. The issue for disposition is whether that violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent Barbara E. Cogan is a state-certified residential real estate appraiser, having been issued license no. 0002758 on or about April 22, 1996, pursuant to Chapter 475, Florida Statutes. Beverly Ridenauer is presently a complaint analyst, but previously was an administrative assistant in appraiser certification for the Department of Business and Professional Regulation (DBPR). As part of her duties at the time, Ms. Ridenauer reviewed Ms. Cogan's application for state certified residential appraiser in March 1996. The application on its face was complete and the requisite fee was attached. Ms. Cogan achieved the required hours of education and passed the state examination. Her application was, therefore, approved. In the meantime, Ms. Ridenauer, as required by law, commenced an audit of the work experience claimed by Ms. Cogan in support of her application for certification. In response to a letter request from Ms. Ridenauer, Ms. Cogan promptly submitted copies of appraisal reports that she had prepared in her pre- certification employment experience. The appraisal reports submitted by Ms. Cogan were all signed by Thomas M. Hayes, a state certified residential appraiser, with the additional notation "assistance by Barbara E. Cogan." In the course of her review, Ms. Ridenauer determined that Ms. Cogan had no real estate sales or broker's license, nor was she registered or certified as an appraiser. Ms. Ridenauer sent a memo to the DBPR complaint division because she deemed that the experience claimed by Ms. Cogan in the application process was invalid: qualifying appraisal experience may only be obtained when an individual is licensed to perform the appraisals. There are no false statements on Ms. Cogan's application. She did not claim any other professional licenses in Florida and she truthfully answered "no" to the question whether she had ever been registered, licensed, or certified in another jurisdiction. Nor did Ms. Cogan misrepresent her work experience. She did all of the work on the appraisals under the supervision of Thomas Hayes, with whom she worked for 2 and 1/2 years. She successfully completed the required appraisal education courses and was trained by Mr. Hayes. Neither Ms. Cogan nor Mr. Hayes had the slightest notion that Ms. Cogan was performing work for which she was not appropriately licensed. The appraisals signed by Mr. Hayes and submitted by Ms. Cogan to the agency as evidence of her experience include this statement in the appraiser's certification: I personally prepared all conclusions and opinions about the real estate that were set forth in the appraisal report. If I relied on significant professional assistance from any individual or individuals in the performance of the appraisal or the preparation of the appraisal report, I have named such individual(s) and disclosed the specific tasks performed by them in the reconciliation section of this appraisal report. I certify that any individual so named is qualified to perform the tasks. . . . (Petitioner's Exhibit no. 4, emphasis in original) The emphasized language in the above text of the certification was underlined by hand and an asterisk was placed in the margin. Below Mr. Hayes' signature and next to an asterisk is the notation acknowledging Ms. Cogan's assistance that is described in paragraph 4, above. When she took her appraisal education courses, Ms. Cogan observed that she was the only student who was not a registered appraiser. She asked her teacher if she had to be registered in order to get certified and he said, "no." Ms. Cogan also had obtained, and was thoroughly familiar with, a 2-sided sheet from the Department of Business and Professional Regulation, Division of Real Estate, titled "Essential Information for Real Estate Appraiser Applicants." The information sheet provides instructions for completing applications. It also describes the qualifications for registered appraiser (75 classroom hours of approved courses), licensed appraiser (75 classroom hours plus 2 years' experience in real property appraisal), certified residential appraiser (120 classroom hours plus 2 years' experience in real property appraisal), and certified general appraiser (165 classroom hours plus 2 years' experience in real property appraisal, including non-residential appraisal work). Ms. Cogan correctly noted that neither the information sheet nor her appraiser rules booklet states plainly that a candidate for certification as a residential appraiser must be first registered or licensed as an appraiser, a real estate salesperson, or a broker. When she was notified of the administrative complaint, she was thoroughly surprised and confused. She never intended to obtain her certification under false pretenses. While agreeing that the rules and statute are not perfectly clear, the agency contends that Chapter 475, Florida Statutes, requires that appraisals must be done by appropriately- licensed individuals. The agency concedes that Ms. Cogan did the work she claimed and that it was good, competent work. But for the fact that she was not registered or licensed when she did the work, Ms. Cogan is fully qualified for her residential real estate appraiser certificate.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency enter its Final Order dismissing the Administrative Complaint against Barbara Cogan. DONE AND ORDERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Barbara E. Cogan 3745 Oak Lane Melbourne, Florida 32934 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact The Petitioner, Roger B. Wozniak, applied for Florida licensure as a real estate salesman on February 25, 1987. R. Ex. 1. The Florida Real Estate Commission proposed to deny his application due to his answers to questions 6, 13, and 14, in his application, and his admission that he was not a Florida resident as of March 18, 1987. (Letter to the Petitioner dated May 3, 1987, from Randy Schwartz, Assistant Attorney General, which accompanies the request for formal administrative hearing and request for assignment of hearing officer, filed in the files of the Division of Administrative Hearings, and now officially recognized.) The answers to questions 6, 13, and 14 concern the Petitioner's conviction which will be discussed in subsequent findings of fact. On the date that he applied for licensure, the Petitioner was not a Florida resident. T. 26. At the time of the formal administrative hearing, the Petitioner was and is now a Florida resident, and resides in Tequesta, Florida, with his family. P. Exs. 13 and 14; T. 11, 24. He closed on his home in Tequesta on June 10, 1987. T. 24. The Petitioner was licensed as a real estate salesperson in Illinois from 1967 until the early 1980's. P. Ex. 1; T. 12. He worked as a licensed real estate salesperson and real estate appraiser during these years in Illinois. Id. By indictment filed on October 4, 1984, the Petitioner was charged with multiple felony counts involving twelve false applications for FHA and VA loans, obstruction of justice, and failure to report income for income tax purposes. P. Ex. 15. The first offense was alleged to have occurred on January 29, 1980, and the last offense was alleged to have occurred on December 6, 1982. Id. In January, 1985, the Petitioner was convicted of counts one through nine, eleven, twelve, fourteen, and fifteen. T. 13, 29; R. Ex 15. He was initially sentenced to a term of imprisonment for two years on counts one, fourteen and fifteen, concurrently. On June 24, 1985, the sentence was modified by suspension of the sentence of imprisonment and imposition of five years probation. P. Ex. 15. In his application, the Petitioner provided the Real Estate Commission with P. Ex. 15. T. 30, 36. (This exhibit was referred to by counsel as exhibit A, but became P. Ex. 15.) P. Ex. 15 contained only the indictment and the last order reducing his sentence, but from these documents the Real Estate Commission could easily discern the counts upon which the Petitioner was found guilty because the sentencing order was accompanied by a form which completely lists the counts upon which sentence was premised. Thus, in his application the Petitioner disclosed all material matters concerning his conviction. As a result of his conviction, the State of Illinois revoked the Petitioner's real estate license. T. 13. Following his conviction, the Petitioner attended real estate courses taught by the Real Estate Education Company in Chicago, Illinois, receiving credit for courses in basic real estate transactions, advanced real estate principles, contracts and conveyances, finance, and appraisal. P. Exs. 2 and 4. In December, 1986, the Petitioner became a designated member of the National Association of Real Estate Appraisers, and became entitled to the designation of Certified Real Estate Appraiser (C.R.E.A.). P. Ex. 3. He is listed in the 1987 national directory of the National Association of Real Estate Appraisers as a Certified Real Estate Appraiser. P. Ex. 10. In February, 1987, the Petitioner received a certificate for completion of a three hour training session and satisfactory completion of a written test sponsored by the National Association of Realtors. P. Ex. 5. Prior to his felony conviction, the Petitioner was enrolled as a correspondence student in the California Coast University. T. 16. He completed his course of study, and on March 19, 1987, he received a bachelor of science degree in business administration from California Coast University. P. Ex. 9 and 6. As a part of his five year probation, the Petitioner was required to undergo counseling. He was referred to a Dr. Schneider and Dr. Indovina of the DuPage County Health Department in Wheaton, Illinois. He was first seen by Dr. Schneider on November 21, 1985. Both Dr. Schneider and Dr. Indovina were of the opinion that the Petitioner had made considerable-progress since his first referral. As of March 10, 1987, both physicians were of the opinion that the Petitioner had learned the consequences of his past behavior and would not engage in illegal behavior in the future. P. Ex. 8. The Petitioner is currently licensed by the State of Illinois as an insurance producer, and that license was never revoked by Illinois for Petitioner's felony conviction. P. Ex. 11; T. 32. After an administrative hearing at which the Petitioner presented evidence of rehabilitation, the State of Illinois reissued Petitioner's real estate salesperson license. P. Ex. 12; T. 31, 22-23. The Petitioner currently holds a real estate salesperson license from Illinois. Id. The Petitioner is currently serving the remainder of his probation, having about three more years of probation to serve. He reports monthly to a probation officer in West Palm Beach.
Recommendation For these reasons, it is recommended that the Florida Real Estate Commission enter its final order denying the application of Roger B. Wozniak for licensure as a real estate salesman in Florida. DONE and ENTERED this 27th day of July, 1987. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2018 The following are rulings upon findings of fact proposed by the parties (using the numbers used by the parties) which have been rejected. Findings of fact proposed by the Petitioner: 2-6. There was no evidence presented concerning the deliberations of the Florida Real Estate Commission. Moverover, this evidence is subordinate to finding of fact 1. Findings of fact proposed by the Respondent: 5. A finding of fact that the Petitioner was elusive cannot be made on this record. As discussed in finding of fact 6 above, the Petitioner candidly provided the Real Estate Commission with a copy of the materials in P. Ex. 15, and from those documents one can easily determine the counts upon which the Petitioner was adjudicated guilty. 8. The two year prison term was suspended. The Petitioner has in fact taken occupancy. There is no contrary evidence in the record. While the voter's registration is evidenced by a temporary card, the temporary card clearly states that it is only to be used until a permanent voter identification card is received. It is inferred that the temporary card is issued only when a permanent voter's registration will soon be issued. There is no evidence in the record that the Petitioner has only registered temporarily. COPIES FURNISHED: Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Roger B. Wozniak 14 Hickory Hill Road Tequesta, Florida 33469 Lawrence S. Gendzier, Esquire Assistant Attorney General Room 212, 400 West Robinson Orlando, Florida 32801
Findings Of Fact Respondent, Robert T. Sharkey (Sharkey), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0079702. Sharkey was the qualifying broker of Respondent, Appraisal Associates & Consultants, Inc. (Appraisal Associates), a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0238854. The Real Estate Seminar In 1985 Respondents placed numerous advertisements in the help wanted section of local newspapers seeking to employ real estate appraisers, experienced or inexperienced, and offering to train the inexperienced. Elizabeth Townsend (Townsend) and Robert Newman (Newman) responded to such advertisements. The experiences of Ms. Townsend and Mr. Newman, both licensed real estate salespersons, were similar. Upon responding to the advertisement they were advised that a meeting would be held at Appraisal Associates, and the program would be explained. At the meeting, Ms. Townsend and Mr. Newman were advised that Appraisal Associates was conducting a seminar in residential property appraising and that a fee, $150.00 in the case of Ms. Townsend and $200.00 in the case of Mr. Newman, would be charged. Each paid their fee and executed a "Seminar Reservation and Employment Conditions" agreement which provided: SATISFACTORY COMPLETION OF THE PRESCRIBED COURSE OF STUDY THE TRAINEE WILL HAVE THE OPTION TO PLACE THEIR CURRENT REAL ESTATE LICENSE, UPON ACCEPTANCE BY THE MANAGEMENT, WITH APPRAISAL ASSOCIATES .... FOR THE APPRAISER TRAINEE TO OBTAIN EMPLOY- MENT WITH APPRAISAL ASSOCIATES OR ANOTHER ASSIGNED BROKER IN THE FIRM THEY MUST: SATISFACTORILY COMPLETE THE PRESCRIBED SEMINAR AND/OR COMPLETE A WRITTEN EXAM ADMINISTERED BY APPRAISAL ASSOCIATES AND CONSULTANTS, INC. 2 COMPLETE SATISFACTORILY AT LEAST FIVE SINGLE FAMILY RESIDENTIAL DEMONSTRATION REPORTS. HAVE A CURRENT FLORIDA REAL ESTATE LICENSE. COMPLETE AN APPLICATION FOR MEMBERSHIP OR DESIGNATION TO ANY APPRAISAL ORGANIZATION FOR CANDIDACY OR ASSOCIATE MEMBERSHIP .... The seminars attended by Ms. Townsend and Mr. Newman were similar. Each consisted of 16 hours of class work dedicated to filling out a standardized Fanny Mae form for single family residences, a drive by appraisal of a residential home, and an on site inspection and appraisal of a residential home. While Mr. Newman felt that not enough time was devoted to actual appraising, and Ms. Townsend felt the seminar was terminated prematurely, there was no proof offered that the seminars were not adequate to instruct the participants in the basics of real estate appraisal, or that they were otherwise a sham. Mr. Newman did not take the final examination, did not complete the five single family residential demonstration reports, and never requested employment with Respondents. Ms. Townsend conceded she was familiar with the requirements for employment and that, while she received a "Certificate of Seminar Completion", she never applied for membership in any appraisal organization and never requested employment with Respondents. Sharkey's Qualifications At hearing the Department introduced into evidence a document, titled "Qualifications of R. T. Sharkey, MRA, CRA", which its investigator had secured from Respondent Sharkey. (Exhibit 6) Pertinent to this case' the document provided: AFFILIATES * * * AMERICAN RIGHT OF WAY ASSOCIATION * * * LICENSED REAL ESTATE APPRAISER EXPERIENCE * * * APPRAISER RIGHT OF WAY CONDEMNATION FLORIDA DEPARTMENT OF TRANSPORTATION 1972-1975 The foregoing qualifications attributed to Sharkey are inaccurate, misleading or false. The organization known as the American Right of Way Association has not been known by that name for 3-4 years; the State of Florida does not license real estate appraisers; and Sharkey was never employed by the Florida Department of Transportation as an appraiser for right-of-way condemnation. While the document included qualifications attributed to Sharkey that were inaccurate, misleading, or false, there was no proof that the document was ever presented to any person in the conduct of Respondents' business, or that any person placed any reliance on such document.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Counts 1, 2, 7, 8, and 9 of the Administrative Complaint be DISMISSED with prejudice. DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 10th day of November, 1986. APPENDIX Respondents proposed findings of Fact Consisted of 8 unnumbered paragraphs. These paragraphs have been designated paragraphs 1-8, and addressed as follows: Addressed in paragraphs 2-3. Addressed in paragraphs 4. Addressed in paragraphs 4-5. Addressed in paragraphs 4-5. Addressed in paragraphs 4-5. Addressed in paragraphs 3-5. Addressed in paragraphs 6-8. Addressed in paragraphs 6-8. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James G. Kincaid, Esquire 4331 North Federal Highway Fort Lauderdale, Florida 33308 Harold Huff, Executive Director Division of Real Estate/DPR 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
