The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, as amended, and, if so, what penalties should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a state agency. It is responsible for administering and enforcing the provisions of Chapter 475, Part II, Florida Statutes. Respondent is now, and has been since June 1, 1996, a Florida-certified residential real estate appraiser (holding certificate number RD 0002087 issued by Petitioner). 3/ At no time during the period of his certification has he had any disciplinary action taken against his certificate. At all times material to the instant case, Steve Mohan was the owner of the following income-producing properties: attached "twin homes" located at 3976 and 3978 West Roan Court, Lake Worth, Florida; and a triplex located at 517 South F Street, Lake Worth, Florida (Subject Properties). In or about March of 1998, Mr. Mohan approached Brett Matchton, a mortgage broker, to inquire about refinancing the loans that he (Mr. Mohan) had obtained to purchase the Subject Properties. Mr. Matchton advised Mr. Mohan that, in order to obtain such refinancing, Mr. Mohan needed to have the Subject Properties appraised. On or about March 2, 1998, Mr. Matchton asked Respondent if he would appraise the Subject Properties (which Mr. Matchton described as a duplex and a triplex) for Mr. Mohan (Appraisal Assignment). Respondent told Mr. Matchton that he would accept the Appraisal Assignment, provided that he was paid either "at the door" (in advance) or upon delivery of the appraisals. Mr. Matchton advised that Mr. Mohan would pay Respondent by check "at the door." Respondent deemed such an arrangement to be acceptable. That same day, accompanied by Mr. Mohan, Respondent inspected, photographed, and made rough sketches of the Subject Properties. He also obtained information about the properties from Mr. Mohan. Before departing, Respondent received two checks (both made out to him) from Mr. Mohan. One check (in the amount of $400.00) was for "a duplex income property appraisal on the [West] Roan Court property" and the other check (in the amount of $450.00) was for "a triplex income property appraisal on the F Street property." Following his visit, using his computer, Respondent accessed local government public records (that were available "on line") on the Subject Properties and on other "comparable" properties ("to find comparable sales"). His examination revealed, among other things, that there were actually "two single-family twin homes" (not a duplex) located at 3976 and 3978 West Roan Court. Respondent subsequently spoke with Mr. Matchton and informed him that a separate appraisal needed to be done for each of the "twin homes." Mr. Matchton responded that he "wanted it done as a duplex," not as two separate properties. Mr. Matchton also told Respondent what "minimum valuations" were required "to make the [refinancing] work." Based upon the preliminary work he had done, Respondent determined that the fair market values of the Subject Properties were "far and above" these "minimum valuations." Sometime after April 1, 1998, Respondent contacted Mr. Matchton and advised that he (Respondent) was not going to do any additional work on the Appraisal Assignment because of ethical concerns he had regarding the manner in which (in accordance with Mr. Matchton's instructions) he was to complete the assignment. 4/ On or about April 10, 1998, Respondent spoke with Mr. Mohan over the telephone. During this telephone conversation, Mr. Mohan told Respondent to "forget about" appraising the Subject Properties and "just refund the money back." Respondent agreed to refund, in full, the $850.00 he had received from Mr. Mohan for the Appraisal Assignment, but indicated that, because of his financial situation, it was "going to take [him] some time" to make such a refund. Respondent never completed any appraisal reports concerning the Subject Properties (although he had started working on such reports). Not having received the promised refund from Respondent (who was experiencing serious "cash flow" problems at the time), Mr. Mohan, on May 26, 1998, filed a formal written complaint with Petitioner. The complaint read as follows: I, Steve Mohan requested Tony J. Maffei to appraise the following properties, 517 South F Street, Lake Worth Florida and 3976 and 3978 West Roan Court, Lake Worth, Florida. On March 2, 1998, Mr. Maffei came out and looked at the above properties and I paid him the amounts of $400 and $450 (copies of checks enclosed). On 3/16/98, Mr. Maffei was contacted to inquire about whether the appraisals were done. He said that they were not. Mr. Maffei was contacted almost every other day between 3/17/98 and 4/7/98, only to be told that the appraisals were not done. On 4/10/98, Mr. Maffei was contacted by phone, at which time he said that he could not do the appraisals and he would refund the monies back. Today is 5/13/98 and I have not received anything from him. Mr. Mohan's complaint was assigned to Dennis Thresher, an investigator specialist with Petitioner, on June 15, 1998. Mr. Thresher interviewed Respondent on July 30, 1998, at which time he requested Respondent to produce "copies of the two appraisals that were supposed to be provided to Mr. Mohan." On August 18, 1998, after some delay, Respondent provided Mr. Thresher with a copy of his work file on the Subject Properties. Included in the file were data sheets, photographs, and sketches. Because of a hardware problem, he was unable to retrieve and make copies of the "partial," unfinished appraisal reports concerning the Subject Properties that he had stored on his computer. At no time did Respondent "come out and actually say" to Mr. Thresher that he (Respondent) had not completed the appraisal reports concerning the Subject Properties. He reasonably assumed that Mr. Thresher already knew, from reading Mr. Mohan's complaint, that no such appraisal reports were completed by Respondent. Respondent did not intend, at any time, to mislead Mr. Thresher. On or about October 5, 1999, after the filing of the Administrative Complaint in the instant case, Respondent sent the following letter, accompanied by a check in the amount of $400.00, to Mr. Mohan: I have enclosed a bank check in the amount of $400 for the refund of the appraisal fee that you paid to me for the appraisal of one of the properties located in Palm Beach County. An additional bank check for $450 will follow as the refund of the appraisal fee for the other Palm Beach County property. I humbly apologize for the delay of the appraisal refund checks and the inconvenience it has caused you. This was due to my lower- than-typical cash flow and higher-than- typical bills/expenses. As we discussed via telephone, I am personally compelled to compensate you for you inconvenience, loss of interest income and costs you may have incurred due to the delay of the appraisal fee refund. As we agreed upon, I will perform an appraisal report for you on a single family or condominium property at "no fee" after you have received the full $850 appraisal refund. Please be expecting a $450 bank check for payment of the final balance before October 30, 1999. Please note that a copy of this letter and the $400 check will be faxed to the Department of Professional Regulation, Florida Real Estate Appraisal Board for their files. Again, I apologize for the inconvenience this has caused you. Mr. Mohan subsequently received from Respondent the "$450 bank check" Respondent had promised to send to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board issue a final order dismissing Counts I and II of Administrative Complaint; finding Respondent guilty of the violation of Section 475.624(2), Florida Statutes, alleged in Count III (as amended) of the Administrative Complaint; and fining Respondent $500.00 for having committed this violation. DONE AND ENTERED this 30th day of March, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 March, 2000.
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
Findings Of Fact Donald L. Stuart is a real estate broker registered with the Florida Real Estate Commission. He holds license number 215732 with expiration date of 3/3/77. In the renewal application received April 3, 1975 by FREC, Stuart reported his business address to be 407 S. Old Dixie Highway, Vero Beach, Florida. In early August, 1976 an investigator for FREC visited the address on South Old Dixie Highway and found a vacant house with no real estate broker's sign displayed. Inquiry in the neighborhood revealed the house had been unoccupied for a considerable period of time. By Election of Rights form submitted November 26, 1976, Stuart acknowledged receipt of the Administrative Complaint by checking Block 1 in which he acknowledged having read the explanation of rights, did not dispute the allegations made in the Administrative Complaint, and requested a hearing. Notice of Hearing was forwarded by Certified Mail, to the same address, viz. 407 S. Old Dixie Highway, Vero Beach, Florida to which the Administrative Complaint had been forwarded.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, David J. Zachem, is now, and was at all times material hereto, a licensed real estate broker in Florida, having been issued license number 0194936. The last license issued was as a broker c/o Sunstate Tax Consultants, Inc., 220 East Madison Street #512, Tampa, Florida, Respondent, during times material, was licensed as a broker/salesperson with Gary Levone Hall, t/a Gary L. Hall & Associates, 243 Timberland Avenue, Longwood, Florida. On or about July 24, 1991, the Resolution Management Associates, Inc. of Atlanta, Georgia, engaged Henry Mazas, the principal of H.R. Mazas & Associates, an accounting firm to perform an appraisal of real property located in Seminole, Florida (called Seminole Landing) which was owned or controlled by the Federal Resolution Trust Corporation, the federally affiliated agency which is selling off failed savings and loan associations financed or mortgaged properties. While Respondent was licensed as a broker/salesperson with Hall, Mazas engaged Respondent to assist in the appraisal of the Seminole Landing property. Respondent assisted Mazas by doing what is commonly referred to in the trade as the "leg work" such as visually inspecting the property, reviewing public records, compiling comparables and other raw data which was utilized by Mazas in completing his appraisal. Respondent signed on the appraisal letter evidencing his assistance as a consultant who assisted Mazas in completing his appraisal. C.W. Marlow, contracts manager of Resolution Management Associates, received a bill from Mazas for the appraisal service in the amount of $4,830.00, which amount was paid to Mazas on or about October 29, 1991. Mazas deposited the check into his account and thereafter paid Respondent $2,321.11 via a check dated November 5, 1991. On November 8, 1991, Respondent and his wife, Patricia Zachem, endorsed the check for payment. At the time that Respondent assisted Mazas in compiling the raw data to complete his appraisal, Mazas was unaware of Respondent's affiliation with Gary Hall. Respondent signed off on the appraisal to fully disclose to everyone concerned that he consulted with Mazas in compiling the raw data for the appraisal. Gary L. Hall, is a licensed real estate broker since approximately 1982. Hall has known Respondent since 1988. They are friends who assist and consult with each other primarily about political activities. Respondent placed his license with Hall as a matter of convenience and was never active in either buying, leasing or selling real property to the public. Respondent and Hall had no agreement respecting the splitting of fees that Respondent would earn for commissions that he received. According to Hall, Respondent "would have been able to keep the entire commissions that he receive for any work that he performed." Hall knew that Respondent was active in preparing appraisals when he became affiliated with his agency. Respondent is the holder of a real estate salesman's license since 1978 and a broker since 1979. Respondent while licensed as a broker, joined the Pinellas County Property Appraiser's Office. Respondent has been employed in two county property appraiser's offices (Broward and Pinellas counties). Respondent was a senior deputy in Broward County with his employment commencing sometime in 1981. He was so employed until January 1989 when he was employed by Pinellas County. In Pinellas County, Respondent was the chief deputy and the chief appraiser. Since 1980, Respondent has principally been a "mass appraiser" while working in Broward and Pinellas counties. Respondent is the qualifier for Sunstate Tax Consultants, which he is the president. Respondent is a Certified Florida Evaluator (CFE). To be qualified as a CFE, one must have worked in a property appraiser's office in the mass appraisal element for a period in excess of two years and have successfully passed four appraisal courses which are designated courses. Specifically, these courses are income to evaluation, the mechanical application of appraisals, appraisal assessment jurisdiction and vacant land. After successfully completing these courses, the property appraiser for whom the applicant is employed writes a letter of recommendation to the certification committee of the Department of Revenue. That committee reviews the applicant's qualifications and either grant or deny the CFE certificate. Respondent primarily placed his real estate license with Hall such that he could qualify as an expert in the numerous petitions filed with the Value Adjustment Board where the evaluation of properties are subject to litigation. Those appraisers who have an active broker license is an indication that they are fully qualified in the appraisal and real estate business. Respondent, as stated, never engaged in the typical brokerage business of buying, selling, leasing or renting property to the public. Specifically, Respondent's understanding with Hall was that if he engaged in any business that was governed by Petitioner, Hall would be notified. Respondent was never engaged to conduct an appraisal or to act as an appraiser for Mazas or the Resolution Management Associates. Respondent would have so advised Hall had he been involved in such a relationship or any activity that was governed by Chapter 475, Florida Statutes. Eugene Davidson, an ad valorem tax consultant. was tendered and received as an expert appraiser. Davidson was one of three founders that founded the National Society of Fee Appraisers more than 35 years ago. Davidson holds a senior designation as an ASA member. Davidson is a member of the Institute of Real Estate Management and hold the designation as a certified property manager (CPM). Davidson is certified with Florida as a general real estate appraiser. Davidson was a professor at the University of Miami, the University of Florida and in the Bahamas (Nassau and Freeport). Davidson knows Respondent as a person on high morals and integrity and who is knowledgeable in real e stte and appraisinng. Davidson has known Respondent more than twelve years. An appraisal is the act or process of estimating value, or an opinion of value. Consulting is the act or process of providing information, analysis of real estate data and recommendations or conclusions on diversified problems in real estate other than estimating value. Respondent's engagement, to compile raw data, was as a consultant. He was not engaged, nor did he offer an opinion of value or an estimate of value. It is normal industry practice for consultants to sign appraisals when they provide or otherwise furnish significant information to the appraiser and, in doing so, complies with standard 2-3 of Chapter 475, Part II. See Sections 475.611 and 475.624, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing Counts I-IV of the Administrative Complaint filed herein. 1/ DONE and ORDERED this 31st day of March, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 31st day of March, 1993.
