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.
Findings Of Fact Respondent has been a registered salesman with the Commission since November 2, 1972. On or about June 14, 1979, Respondent submitted to the Commission an application for registration as a salesman which contained the following questions: 17. (a) Has any license, registration or permit to practice any regulated profession, occupation or vocation been denied, 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 now pending? (b) Have you ever resigned or withdrawn from, or surrendered, any license, registration or permit to practice any regulated profession, occupation or vocation, while such charges were pending? Respondent responded negatively to both the above quoted questions on his application form. In reliance on these statements, the Commission registered the Respondent as a real estate salesman on November 22, 1972. Prior to his submission of an application for registration as a Florida real estate salesman, Respondent had been a practicing attorney in the State of New York. In the course of his practice of law, Respondent had been investigated by the Brooklyn Bar Association and charged with defrauding clients of proper shares of settlements; failing to maintain a special escrow account, and commingling personal funds with those of his clients; giving false testimony before a Grievance Committee of the Brooklyn Bar Association; failing to obtain court approval of infants' settlements; filing numerous retainer and closing statements which he knew to contain false information; failing to file retainer and closing statements with the Judicial Conference; grossly neglecting the prosecution of clients' cases; concealing the infancy of clients and failing to have guardians appear for infants in court action; representing conflicting interests; and engaging in systematic solicitation of negligence cases. While the above-mentioned charges were pending, Respondent submitted his resignation as a member of the Bar of the State of New York, effective February 1, 1971. Respondent's resignation was accepted by the Appellate Division of the Supreme Court of the State of New York by Opinion issued March 1, 1971. On February 24, 1970, Respondent applied for membership in the Florida Bar. In his application for membership in the Florida Bar, Respondent answered falsely to an inquiry concerning whether any charges or complaints, formal or informal, had ever been made or filed, or proceedings instituted against him while practicing law in any other jurisdiction. Subsequently, Respondent's license to practice law in Florida was revoked by Opinion of the Florida Supreme Court dated July 21, 1971.
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 Should Petitioner discipline Respondent's real estate sales- person's license for alleged conduct evidencing fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction in violation of Section 475.25(1)(b), Florida Statutes?
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. In particular, Petitioner carries out its duties in compliance with Chapters 20, 120, 455 and 475, Florida Statutes and the rules promulgated under authority set forth in those statutes. At times relevant to the inquiry, Respondent was, and is now, a licensed Florida Real Estate salesperson. Her license number is 0591902. That license was issued in accordance with Chapter 475, Florida Statutes. At times relevant to the inquiry, Respondent worked as a licensed real estate salesperson for Ideal Real Estate Central Florida, Inc., t/a Coldwell Banker Ideal Real Estate in Orange City, Florida (Ideal). The broker for that firm was John S. Chinelli. On April 13, 1993, Respondent listed an exclusive right of sale for property owned by Jason and Kelly Foster at 2853 Sweet Springs Avenue, Deltona, Florida. That listing contemplated that Ideal would earn a real estate commission of 7 percent of the gross purchase price. The listing price in the exclusive right of sale was $69,900. In arriving at the sales price, Mr. Foster relied upon Respondent's advice. That advice included a consideration of the price received for the sale of comparable homes. The establishment of comparable prices as a means to arrive at the listing price for the Foster property involved the use of the Coldwell Banker buyer/seller presentation booklet, as well as a marketing analysis. The price $69,900 was chosen to attract those buyers who were looking for homes that cost less than $70,000. That choice was designed to garner more interest in the home. While the Foster home was being advertised, it was available through the multiple listing pool. Respondent showed the house two times between April 13, 1993, and May 14, 1993. This did not involve a showing to any prospective buyers. Other brokers or salespersons showed the house twice to prospective buyers, but no offers were generated from those showings. Subsequently, Respondent suggested to Mr. Foster that the Foster residence might be appropriate for her use. Respondent offered to buy the Foster property for $65,000. On May 14, 1993, Respondent and Mr. Foster entered into a contract for sale and purchase of the Foster residence. The purchase price was $65,000. Respondent deposited $500 into the escrow account managed by Ideal in furtherance of her interest in the property. The earnest money deposit was placed with Mr. Chinelli pending the closing of the sale. The contract called for Respondent to assume an existing mortgage of $63,556. The contract identified that the Respondent was a licensed real estate agent in Florida, but the purchase was not being made through Ideal. Under this contract, the real estate commission that had been contemplated initially would not be paid to Ideal and Respondent. When Respondent entered into a contract to buy the Foster property, she did not tell Mr. Foster that she would no longer be representing him as a real estate salesperson. The contract between Respondent and Mr. Foster called for a closing date on or before June 30, 1993. In entering into the agreement for Respondent to purchase the home, Respondent told Mr. Foster that she intended to personally occupy that property. Respondent never told Mr. Foster that she entered into the contract to purchase his home with the intent to sell the home to another person. Originally that was not her intention. Respondent held to the view that in the event that her purchase of the home was not concluded, Respondent would still represent Mr. Foster in his desire to sell the home. This is taken to mean that she would be representing Mr. Foster as a real estate salesperson. Sometime around June 20, 1993, Kai and Denise M. Hansen, husband and wife, contacted Ideal to show the Hansens property in the Deltona area. Respondent assisted the Hansens in this pursuit, acting as a real estate salesperson. There was no written agreement between Respondent or her firm signed with the Hansens to represent them in their attempt to purchase a home. Respondent showed the Hansens 8 to 12 homes in the Deltona area. The Hansens were not interested in purchasing those homes. At that point, Respondent suggested that the Hansens look at the home that she was purchasing from Mr. Foster. Respondent told the Hansens that Respondent was buying the Foster house from the Fosters who were moving out of town and that Respondent was helping the Fosters "out of a bind." Respondent told the Hansens that the home might be "too big for her anyway." Respondent told the Hansens that if she could help the Hansens out she would sell the Foster home to the Hansens if the Hansens liked that property. If a suitable home had been found through a real estate listing, other than the Foster residence, a commission would have been paid from the seller of the hypothetical house to the broker for Ideal. In that circumstance, the Hansens would not be responsible for paying a commission to the Respondent or Ideal. The properties other than the Foster property which Respondent was showing the Hansens were shown by Respondent as a sub-agent for the sellers. Respondent showed the Hansens the Foster residence during the week of June 20, 1993. On June 24, 1993, Respondent entered into a contract with the Hansens for sale and purchase of the Foster property. An addendum to that contract indicated that "this contract is contingent upon seller obtaining clear Title on 2853 Sweet Springs, Deltona, FL." The Hansens paid a $1,000 earnest money deposit toward the purchase of the Foster property. That deposit was placed in the escrow account for Ideal. That deposit was to be held until the closing date scheduled for July 16, 1993. Again, it was not contemplated that a real estate commission would be paid to Respondent and Ideal. The price arrived at between Respondent and the Hansens to purchase the Foster property was $72,500. Initially, Respondent had offered to sell the property for $73,000. The Hansens counter-offered to pay $72,000 leading to the final purchase price of $72,500. The contract between the Respondent and the Hansens called for an assumption of a mortgage in the amount of 63,500. Although Respondent had advised the Hansens that the property was being purchased from the current occupants, the Fosters, Respondent did not advise the Hansens of the price the Respondent was paying the Fosters to purchase that property. Respondent never advised the Fosters that the Hansens had sought to purchase the Foster home and that Respondent had entered into a contract with the Hansens for the Hansens to purchase that property. On June 29, 1993, the closing occurred between Respondent and the Fosters and a warranty deed was prepared noting the change in ownership. At the closing Respondent told the Fosters that she still intended to occupy the home. On July 16, 1993, the closing occurred between the Respondent and the Hansens and a warranty deed was drawn conveying the property from the Respondent to the Hansens. As established by Mark A. Carper, a real estate appraiser, the value of the Foster property on April 13, 1993 was between $65,000 and $72,500. In anticipation of moving into the Foster home, Respondent had made arrangements to move out of the residence where she had been living by giving notice that she intended to move.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a Final Order be entered which dismisses the administrative complaint against Respondent. DONE AND ENTERED this day of July, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 day of July, 1997. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 William A. Parsons, Esquire Woerner & Parsons 2001 South Ridgewood Avenue South Daytona, Florida 32119 Henry M. Solares, Division Director Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission enter its final order directing Capitol Rental and Realty, Inc. and Lawrence D. Van Ore cease and desist from using non-registrants as real estate salesmen and further from failing to use the full name of the registrant and the term "Broker" or "Realtor" within its classified advertisements. The Hearing Officer further recommends that the registration of the registrant be suspended until the corporate broker and associate broker Lawrence D. Van Ore have complied with said order of the Commission. DONE and ORDERED this 26th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Gough, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Don Scarlet, Esquire 801 Magnolia - Suite 317 Orlando, Florida 32803
The Issue Whether Victor Jesus Monzon (Respondent) committed the violations alleged in the subject Administrative Complaint, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been a state certified residential real estate appraiser, having been issued license RD-4245 on January 3, 2004. Respondent's licensure has not been previously disciplined by Petitioner. Respondent's business is named Heartland Appraisal Group, Inc. Respondent is subject to the regulatory jurisdiction of the Florida Real Estate Appraisal Board (Board) by operation of chapters 455 and 475, Florida Statutes (2010). Petitioner has jurisdiction over disciplinary proceedings for the Board. Petitioner is authorized to prosecute administrative complaints by operation of chapters 455 and 475, Florida Statutes. On April 23, 2007, Respondent developed the Report on the Subject Property, which is a condominium unit located in a condominium complex known as the Jade Residences. Respondent prepared the Report for his client, Infinity Mortgage (Infinity). The Administrative Complaint was prepared in response to a complaint from J. P. Morgan Chase, also known as Chase Home Finance (Chase). No representative of Infinity or Chase testified at the formal hearing, so no finding has been made as to how Chase came to possess or utilize the Report. There is also no finding made as to whether Infinity or Chase was misled by any iteration of the Report. Respondent's work file contains a copy of a contract between "John Michael Pla" as seller and "Jeannette H. Lee Declaration of Trust Dated 9/25/98" as purchaser for the sale of the Subject Property in the amount of $1,307,500 (the contract price). In addition to the iteration of the Report that Petitioner received from Chase, Petitioner introduced four iterations of the Report as part of its Exhibit 1 that were copied from Respondent's work file. What was thought to be a fifth iteration obtained from Respondent's work file was also part of Petitioner's Exhibit 1, but it was later determined to be a duplicate of one of the other iterations. For ease of reference, the five iterations will be referred to by the letter I followed by a hyphen and its assigned number. Pages 18-40 of Petitioner's Exhibit 1 constitute the iteration of the Report Petitioner's investigator obtained from Chase (I-1). Respondent's work file did not have a copy of I-1. Page 20 of I-1 contains a photocopy of Respondent's handwritten notation: "Original 1." The handwritten notation does not appear on any of the other iterations. Pages 211-234 of Petitioner's Exhibit 1 constitute I- 2., pages 236-259 constitute I-3, pages 261-284 constitute I-4, and pages 311-335 constitute I-5. All five iterations of the Report were signed by Respondent. I-1 was signed April 24, 2007; I-2, I-4, and I-5 were signed on April 25, 2007; and I-3 was signed on July 25, 2007. All five iterations were effective as of April 23, 2007. All five iterations of the Report valued the Subject Property at $1,400,000. There was no evidence that the Report overstated the value of the Subject Property. There are two separate pages for I-1 marked "page one." On the I-1 page one with the handwritten notation, the name of the borrower is Jeannette Lee and the name of the owner of public record is John Pla. This same information is found on the page ones of I-2 and I-3. On the page one of I-1 without the handwritten notation, the name of the borrower is "LEE," and the name of the owner of record is "Wells Fargo Bank NA" (Wells Fargo). On the page one of I-4 and I-5, the name of the owner of record is Wells Fargo and the name of the borrower is Jeannette Lee. The contract price listed on all iterations except I-1 is $1,307,500. On both pages marked "one" on I-1, the contract price is listed as being $1,307,500 in one place and $1,370,500 in another place. In the "Comparable Sale" section of the reports, the unit number for comparable sale 3 is not listed for I-1 or I-5. The unit number for comparable sale 3 is listed for the other iterations. Also in the Comparable Sale section of the reports, I- 1 reflects the contract price for the subject property as being $1,370,500. In the same place on the other iterations, the contracted sales price is listed as being $1,307,500. Stating the contracted sales price for the subject property at $63,000 more than the actual contracted sales price was a mistake. There was insufficient evidence to establish that it was a deliberate mistake. There is nothing in the record to suggest that the mistake was anything other than a typographical error that Respondent subsequently caught and corrected. Petitioner failed to prove that the error had any effect on the appraised value Respondent put on the subject property. FARES is a software program which stands for "First American Real Estate Solutions." It is acceptable practice for an appraiser to use FARES in determining the ownership of property. Utilizing FARES, Respondent determined that the owner of the subject property was Wells Fargo. A Multiple Listing Service (MLS) entry reflected an unknown closed sale of the subject property with a sales price of $1,133,000. Respondent advised Infinity of the conflict, and he advised that he was using FARES instead of the MLS listing because he believed that FARES was more reliable. The copy of the sales contract in Respondent's work file reflected that the seller was JJohn (sic) Michael Pla. On March 8, 2007, Wells Fargo deeded the subject property to John Pla. This deed was recorded on April 14, 2007. The FARES search done by Respondent did not reveal the deed. The likely explanation for that failure is the delay in indexing public records in Dade County. After Respondent was able to verify this sale, he changed the name of the owner of the subject property on his Report and reflected the date of sale and the sales price of $1,133,000. I-1 and I-5 do not reflect a sale of the Subject Property in September 2004 for the amount of $860,000. Petitioner's expert agreed that that failure had no effect on the appraised value of the Subject Property in April 2007. I-2 and I-3 reflect that Pla was the owner and they reflected the $860,000 sale of the Subject Property in September 2004 and the sale of the property to Pla in 2007. On July 5, 2007, Infinity requested that Respondent change the name of the owner from Wells Fargo to Pla and provided Respondent with a copy of the deed from Wells Fargo to Pla. I-3, signed by Respondent on July 5, 2005, was prepared in response to that request. The record is unclear how I-2, signed on April 25, 2007, had that updated information. After I-3 was issued, the owner of record, the amount of the contract, and the sales history of the property were correctly stated. Respondent used four comparable sales in determining the value of the subject property. Respondent used a computer program to search for comparable sales that were similar in square footage, distance from the subject property, and time of sale. The use of the computer program and the parameters he used in selecting the comparable sales were reasonable. Petitioner asserted that Respondent erred in using comparable sale 1 because the use of that comparable inflated the price of the subject property. There was insufficient evidence to establish that comparable sale 1 was a fraudulent transaction or that Respondent erroneously relied on comparable sale 1 in determining the value of the subject property. Comparable sale 1 was another unit in the Jades Residences condominium complex that was on a higher floor than the Subject Property. Respondent made an adjustment to the sales price for comparable sale 1 to reflect the differences between the two units. There was insufficient evidence to establish that the adjustment was inappropriate. Further, Respondent used a weighted average which gave less consideration to comparable sale 1 than to the other comparables used. Respondent testified, credibly, that he sent two iterations of the Report to Infinity. The first report listed Wells Fargo as the owner and did not list the September 2004 sale of the property or the sale of the property to Pla in March 2007. That appears to be I-5, which was signed April 25, 2007. The other iteration was I-3, which was signed July 5, 2007. Petitioner's expert agreed that it was reasonable for Respondent to amend his Report in July 2007 after he learned of the September 2004 sale and after he verified the sale from Wells Fargo to Pla. The Jade Residences condominium complex became notorious for mortgage fraud in the latter part of 2007. There was no evidence that Respondent was aware of that mortgage fraud when he prepared his original Report in April 2007 or when he amended his original Report in July 2007. Respondent signed the Report which included the following representation: I performed this appraisal in accordance with the requirements of the Uniform Standard of Professional Appraisal Practice that were accepted and promulgated by the Appraisal Standards Board of the Appraisal Foundation and that were in place at the time this appraisal report was prepared. Appraisers are not required by state law to comply with USPAP standards, but it is the industry practice to do so.
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 finding Respondent not guilty of the violations alleged in the Administrative Complaint. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 7th day of June, 2011. COPIES FURNISHED: Thomas W. O'Bryant, Jr., Director Division of Real Estate 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donna Christine Lindamood, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757 Daniel Villazon, Esquire Daniel Villazon, P.A. 1420 Celebration Boulevard, Suite 200 Celebration, Florida 34747
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order DENYING Charles A. Pantino's application for licensure as a real estate salesman. RECOMMENDED this 29th day of October, 1980, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1984.
