The Issue Whether Petitioner's application for registration as a trainee real estate appraiser should be denied on the ground set forth in the Florida Real Estate Appraisal Board's Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a 35-year-old divorced man (born in October 1972) who resides in Miami-Dade County, Florida, with his parents. He is the father of a six-year-old son whom he shares custody of with his former wife. In early 2003 (when he was 30 years of age), fueled by a desire to increase his wealth, Petitioner engaged in the trafficking of counterfeit Procrit to drug wholesalers. (Procrit is a prescription drug manufactured by Amgen, Inc.) In so doing, Petitioner recklessly exposed the intended consumers of these counterfeit drugs to the risk of serious bodily harm. Prior to engaging in this criminal enterprise, Petitioner had lived a law-abiding life. Petitioner was arrested on or about February 28, 2003, and subsequently charged in the United States District Court for the Southern District of Florida with the federal crime of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320. The information against Petitioner alleged, in pertinent part, that, "[f]rom on or about January 20, 2003 to on or about February 27, 2003, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendant, Eddy Gorrin, did intentionally traffic and attempt to traffic in goods, that is, Procrit prescription drugs, and knowingly used a counterfeit mark on and in connection with such goods without authorization from Amgen, Inc., such mark being identical with and substantially indistinguishable from the genuine mark in use and registered for those goods by Amgen, Inc. on the principal register in the United States Patent and Trademark Office, and the use of which counterfeit mark was likely to cause confusion, to cause mistake, and to deceive." With Petitioner's post-arrest assistance, the authorities recovered all of the counterfeit Procrit that Petitioner and his co-perpetrators had distributed. On or about May 22, 2003, Petitioner entered into a plea agreement with the federal prosecutor's office. The agreement provided, in pertinent part, as follows: The defendant agrees to waive prosecution by indictment and plead guilty to Count One of an Information, which charges the defendant with intentionally trafficking and attempting to traffic in goods and knowingly using a counterfeit mark on those goods in violation of Title 18, United States Code, Sections 2320 and 2. The defendant is aware that the sentence will be imposed in conformity with the Federal Sentencing Guidelines and Policy Statement (hereinafter "Sentencing Guidelines"), and that the applicable guidelines will be determined by the Court. The defendant is also aware that a sentence imposed under the guidelines does not provide for parole. Knowing these facts, the defendant agrees that this Court has jurisdiction and authority to impose any sentence within the statutory maximum set for his offense. This Office and the defendant agree that, although not binding on the Probation Office or the Court, they will jointly recommend that the Court make the following findings and conclusions regarding the applicable Sentencing Guidelines: Applicable Offense Guideline: That pursuant to Section 1B1.2(a) of the Sentencing Guidelines, the offense guideline applicable to the defendant's offense is Section 2B5.3 of the Sentencing Guidelines, which provides for a base offense level of eight; Amount of Loss: That under Sections 2B1.1(b)(1) and 1B1.3 of the Sentencing Guidelines, the amount of loss resulting from the defendant's offense conduct is between $200,001 and $400,000, increasing the defendant's offense level by twelve levels. Manufacture of Counterfeit Drug: That under Section 2B5.3(b)(2) of the Sentencing Guidelines, the defendant's offense involved the manufacture of the counterfeit prescription drug Procrit and that his offense level should therefore be increased by two levels. Conscious or Reckless Risk of Serious Bodily Injury: That under Section 2B5.3(b)(4) of the Sentencing Guidelines, the defendant's offense involved the conscious or reckless risk of serious bodily harm, and that as a result, his offense level should be increased by two levels. Acceptance of Responsibility: That under 3E1.1 of the Sentencing Guidelines, the Sentencing Guideline level applicable to the defendant's offense should be reduced by three levels based upon his recognition and affirmative and timely acceptance of personal responsibility for the offense, provided further that the defendant makes a full, accurate and complete disclosure to the United States Probation Office of the circumstances surrounding defendant's relevant conduct and does not engage in any misconduct after entering into this agreement . . . . Other Adjustments: That no other additional downward adjustments from Chapters 2 or 3 of the Sentencing Guidelines are applicable in this case. Restitution and Fine: That pursuant to Section 5E1.1(a) of the Sentencing Guidelines, the defendant agrees that he shall pay restitution in the amount of $8,000 to the U.S. Food and Drug Administration, which takes into account the $25,000 voluntarily restituted in March 2003, prior to the filing of the information in this case. It is also agreed that this payment will be a condition of the defendant's probation and/or supervised release. After a through review by the parties of both the offense conduct and the application of the Sentencing Guidelines to this offense conduct as outlined in paragraph 3 of this Agreement, this Office and the defendant agree, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that the applicable total resulting offense level in this case is an offense level 21. This Office does not object to the defendant's request to be sentenced at the low end of the guideline range, that is, 37 months. The defendant understands and agrees that the Court may impose any sentence authorized by law and that the defendant may not withdraw his plea solely as a result of the sentence imposed. The defendant also understand and agrees that the Court may impose a statutory maximum term of imprisonment of up to ten years, followed by a maximum supervised release term of three years. In addition to a term of imprisonment and supervised release, the Court may impose a fine up to $2,000,000. The defendant understands and agrees that, in addition to any sentence imposed under paragraph 5 of this agreement, a special assessment in the amount of $100 will be imposed on the defendant. The defendant agrees that any special assessment imposed shall be paid at the time of sentencing. The defendant is aware that the sentence has not yet been determined by the Court. The defendant is also aware that any estimate of the probable sentencing range that he may receive from his counsel, the government or the Probation Office, is a prediction, not a promise, and is not binding on the government, the Probation Office or the Court. * * * After entering his plea of guilty, Petitioner was sentenced to 37 months in federal prison. He was also fined and ordered to pay restitution. Petitioner began serving his prison sentence on October 16, 2003. While in prison, Petitioner took a correspondence course in real estate appraising. He also participated in and completed a nine-month alcohol rehabilitation program (for which he was eligible because he had a history of alcohol abuse). As a result of his completion of the program, his prison sentence was shortened. In March 2005, Petitioner was released from prison and placed on supervised probation for a period of three years. For the first six months of his probation, Petitioner was under house arrest and had to wear a monitoring device on his ankle. Petitioner's probation officer recommended that he be discharged early from probation inasmuch as he had "complied with the rules and regulations of probation/supervised release and [was] no longer in need of supervision." On November 22, 2006, the sentencing judge issued an order adopting this recommendation and discharging Petitioner from probation. Since his release from prison in March 2005, Petitioner has led a crime-free life and become a productive member of society. He has abstained from the use of alcohol, with the exception of having an occasional glass of wine. He has gone back to school and completed the necessary coursework to obtain his Associate of Arts degree from Miami- Dade Community College. He has been gainfully employed throughout the post- incarceration period. From March 2005, to April 2006, Petitioner worked for two companies owned by Patsy Stecco: Mortgage Processors of South Florida, Inc., where he helped process mortgages, work that required him to handle money (which he did without incident); and Buyers Home Connection, Inc., where he was a credit analyst with managerial responsibilities. During this time period, he took a "real estate mortgage broker course . . . to get more of an understanding of what the work entail[ed]." Ms. Stecco has known Petitioner for the past ten years,1 having first met him "through a niece of [hers who] was friend[ly] with his ex-wife."2 Ms. Stecco was aware of Petitioner's criminal past when she hired him. In April 2006, Petitioner went to work for a Florida- certified residential appraiser, Gaston Gosselin, Jr. Mr. Gosselin owns his own appraisal business, Precision Appraisers and Company, Inc. He hired Petitioner based upon Ms. Stecco's recommendation. Before hiring Petitioner, Mr. Gosselin did not inquire as to whether Petitioner had a criminal record, and Petitioner did not volunteer that he did. It was not until two or three months after Petitioner began working for him that Mr. Gosselin found out (from Ms. Stecco) about Petitioner's criminal past. When Mr. Gosselin confronted Petitioner about the matter, Petitioner was candid and forthright, and he apologized to Mr. Gosselin for not making the disclosure sooner. While Mr. Gosselin was concerned about Petitioner's "initial[]" lack of openness regarding the matter, Petitioner had so impressed him during the "short time" they had known each other that, despite this concern, Mr. Gosselin retained Petitioner as an employee. Petitioner did research and marketing work for Mr. Gosselin. He also assisted with office personnel matters. In February 2008, Mr. Gosselin had to let Petitioner go because, due to deteriorating business conditions, he could no longer afford to keep Petitioner on the payroll. He has "stayed in touch" with Petitioner, however, and now "consider[s] him a friend." Ms. Stecco and Mr. Gosselin (both of whom testified, credibly, at the final hearing on Petitioner's behalf3) found Petitioner to be a hardworking, quick-learning, reliable, dedicated, competent, honest, and trustworthy employee. Mr. Gosselin would not hesitate to serve as Petitioner's supervising appraiser were Petitioner's application for registration as a trainee real estate appraiser to be granted.4 He believes that Petitioner would be a "great asset to [him] and [his] business." Since February 2008, Petitioner has been a staffing manager with Robert Half International (RHI). RHI does not "know about [Petitioner's] criminal history." It has not "inquire[d] [of Petitioner] about [his] criminal past," and Petitioner has not come forward and made any unsolicited disclosures regarding the matter. In addition to working full-time for RHI, Petitioner works evenings and weekends for his father's company, EDGO General Consulting Services, Inc. (EDGO), which "owns rental properties." Petitioner collects rents and makes deposits, as well as does needed repair work, for the company. Petitioner had worked for EDGO prior to his incarceration. In 2001, he was "involved in overseeing" a residential construction project undertaken by the company. In applying for the staffing manager position he now holds with RHI, Petitioner submitted a copy of a resume, wherein he had listed, "oversee construction development of single family spec homes," as one of his duties at EDGO. In so doing, he meant to convey that "oversee[ing] construction development of single family spec homes" was one of things that he had done during his employment with EDGO, not that it was among his current job duties. The resume also contained the following entry regarding his employment with Precision Appraisers and Company, Inc. (under the heading of "Professional Experience"): Precision Appraisers & Company, Inc., Office Manager/Appraiser 04/2006-02/2008 Establish productive marketing strategies and incentives for existing and potential clients. In charge of interviewing new prospective personnel for clerical and administrative positions. Research all records of properties being appraised and provide all information to the appraiser performing the appraisal. Organize bi-weekly payroll for staff and independent contractors. It was Petitioner's intent, in describing his position as "Office Manager/Appraiser," to indicate that he was an "office manager for an appraiser firm," not that he himself was an appraiser. Under the heading of "Education/Qualifications" on the resume appeared the following: Real Estate Appraiser Real Estate Mortgage Broke[r] Associates in Arts, Business Administration Petitioner listed "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" under this heading to indicate that he had taken "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" coursework. He did not mean to represent that he was authorized to act as a "Real Estate Appraiser" and a "Real Estate Mortgage Broke[r]." While the resume entries discussed above were not models of precision, neither were they intentionally deceptive. Petitioner has become a more mature and responsible person than he was at the time he engaged in the criminal conduct that led to his incarceration. He is repentant and remorseful about his crime and recognizes the importance of his being a positive role model for his son. He understands all too well what his ill-advised decision five years ago has cost him and his family, particularly his son, who did not have a father around during the time Petitioner was in prison. More importantly, he feels "terribly" about the potential harm to which he exposed the public and is "thankful that no one was [actually] harmed." Petitioner is embarrassed and ashamed of what he did and is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his son and the rest of his family. He has "learned [a] lesson" from the price he and his family has paid for his one criminal indiscretion. He has no intention of ever "put[ing] [him]self in a position like that again." In short, in the five years that have passed since his crime, Petitioner has been rehabilitated, and it appears that the interest of the public will not likely be endangered if he is granted the registration he seeks and is able to work as a trainee real estate appraiser under the supervision of a licensed or certified appraiser.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order granting Petitioner's application for registration as a trainee real estate appraiser. DONE AND ENTERED this 11th day of July, 2008, in Tallahassee, Leon County, Florida. S 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 11th day of July, 2008.
The Issue The issue in this case is stated in three counts set forth the Administrative Complaint1/: Count I, whether Respondent, Ronald C. Hormes ("Hormes"), is guilty of violating section 475.624(15), Florida Statutes (2008),2/ by failing to exercise reasonable diligence when preparing or developing an appraisal report; Count IV, whether Hormes is guilty of obstructing an investigation in violation of section 475.626(1)(f); and Count V, whether Hormes is guilty of failing to properly and adequately supervise a registered trainee appraiser in violation of section 475.624(4); and Florida Administrative Code Rule 61J1-4.010.
Findings Of Fact The Division is responsible for monitoring all licensed and certified real estate appraisers in the state. It is the Division's duty to ensure that all appraisers comply with the standards set forth in relevant statutes and rules. Hormes has been a certified residential real estate appraiser for approximately 30 years. He operates a family-owned real estate appraisal business. At all times material hereto, Mariano M. Alvarez II ("Alvarez"), a state-registered trainee real estate appraiser, was performing appraisal duties under Hormes' supervision. Alvarez is one of approximately 55 trainees who have worked under Hormes' supervision since 1993. Alvarez first became a trainee in Hormes' office in May 1997. He left the office early in 2004, but returned as a trainee in July 2004. Alvarez remained a trainee in Hormes' office until April 2011. At issue in this case are three appraisals which will be referred to collectively herein as the "Townsend" appraisal. In May 2008, Alvarez was technically working as a trainee with Hormes. However, Hormes had not given Alvarez any assignments since some time in 2007. Alvarez had become engaged in the operation of a business outside the area of real estate appraising and was not actively seeking work from Hormes in the appraisal field. In the Spring of 2008, Alvarez received a request to engage in some appraisal work. He received an assignment letter for appraisal work from Karen Maller, an attorney representing some members of the Townsend family who were in a dispute concerning land and property left in an estate. The assignment letter dated May 30, 2008, asked Alvarez to prepare an appraisal and also to be an expert witness in an upcoming trial. It appears the assignment letter was emailed to Alvarez, i.e., there is no physical address for Alvarez on the letter. Most assignments are commenced by way of a letter setting forth the scope of the intended work to be performed. Sometimes the assignments are made by way of email, but hard copy letters are most common. The assignment letter was sent directly to Alvarez; Hormes was not an addressee on the letter, and it was not copied to him. A real estate appraisal trainee is generally not authorized to accept appraisal assignments directly. Alvarez apparently accepted the assignment from Maller and began working on the Townsend appraisal. The correspondence listed below followed the initial assignment letter: A June 30, 2008, letter from Maller concerning the upcoming trial dates in January 2009. The letter contained no physical address, but had email addresses for both Alvarez and Hormes. The email address for Hormes was his personal address, not his work address. A September 8, 2008, email from Maller to Alvarez, copied to Hormes, indicating receipt of Alvarez's draft appraisal. A September 14, 2008, email from Maller to Alvarez, copied to Hormes, seeking a draft for the residential portion of the appraisal. A September 15, 2008, email from Maller addressed to both Alvarez and Hormes, providing comments on the appraisal that had been submitted. A November 7, 2008, letter addressed to Alvarez (only) at Hormes' business address. Hormes does not admit any knowledge of the assignment accepted by Alvarez prior to receiving Maller's emails in September. At that time, Hormes became concerned and called Maller to inform her that she was not a client of his office. Hormes left messages with Maller concerning this fact, but it is unclear whether he ever talked directly to Maller. Hormes also attempted to call Alvarez about the purported assignment. Hormes testified that, "I put in, you know, phone calls to him. He is difficult to contact." Again, it is unclear at what point in time Hormes initially talked directly to Alvarez about this matter. After Hormes contacted Maller to inform her that she was not his client, Maller then sent Alvarez a letter in which Hormes was not copied. That letter dated November 7, 2008, basically reiterates the facts concerning the upcoming trial in January 2009, one of the two purposes set forth in the original assignment letter to Alvarez. The computer-generated footer at the bottom of the letter states: T:\Carrie\Geiger,William\ Townsendv.Morton\Correspondence\Witness 002-Alvarez.doc, as compared to the footer on the original (June 30, 2008) letter which says: F:\Carrie]Geiger,William\Townsendv.Morton\ correspondence\Alvarez-Hormes 001.wpd. Clearly the November correspondence was meant for Alvarez only. The reason for that change cannot be determined from the evidence presented at final hearing in this matter. It may reasonably be inferred that as of November, Maller no longer considered both Hormes and Alvarez her expert appraisers. Instead, the November 7, 2008, letter is addressed solely to Alvarez as "Expert-Appraiser." Alvarez was using Hormes' office during the time he was acting as a trainee. Hormes expected each of his trainees to do their work at his office, rather than operating remotely. Trainees had access to the office computers, fax machines, copiers, and a library of information. That being the case, it is difficult to ascertain why Hormes had difficulty contacting Alvarez once he found out about the Maller assignment. That is, if Alvarez was using Hormes' office to prepare the appraisal, he would seem to be accessible to Hormes. During his interview with the Division's investigator in December 2009, Hormes acknowledged some supervisory involvement with the Townsend appraisal. Hormes could not remember making any statement to that effect to the investigator at the final hearing in this matter. However, the investigator received confirmation from both Hormes and Alvarez that the appraisals provided to Maller were only in draft form. The investigator's testimony in this regard is credible. Hormes' attorney wrote a letter to the Division dated December 9, 2009, in which Hormes was described as the "Supervising Appraiser" for the Townsend appraisal. The attorney who wrote the letter was eventually released by Hormes based upon issues relating to competency. The attorney's law firm did not require Hormes to pay for that attorney's work. Hormes seemed to insinuate at final hearing that the release of his attorney indicates that the statements made in the December 9, 2009, letter were inaccurate. However, there was no competent or persuasive evidence to support that insinuation.3/ During the investigation undertaken by the Division concerning the propriety of the Townsend appraisal, Hormes and Alvarez were questioned by an investigator at a single interview. During that interview, Alvarez did most of the talking and responded to most of the questions about the appraisal. It is clear that Alvarez had the greatest amount of knowledge and information concerning the Townsend appraisal, but it is unclear how much knowledge Hormes had. Hormes was at least aware of the work that Hormes had done on the appraisal. The Townsend appraisal was, by everyone's admission, not an acceptable work product. It was flawed in many areas and failed to meet the minimum standards for a real estate appraisal. Hormes simply says that Alvarez had "gone rogue" and that he had done the appraisal on his own. At final hearing, Hormes disavowed any direct work on the appraisal or that he supervised Alvarez's work on the appraisal. In fact, Alvarez admitted to the investigator that he had forged Hormes' signature on the reports and that Hormes was not aware of that fact. During the course of the investigation by the Division, Hormes was asked to provide copies of the Townsend appraisal, along with the two other draft appraisals that Alvarez had been working on for Maller. Hormes advised the investigator that he would provide copies of the report, but he did not provide them. Portions of the work file from Hormes' office were provided to the investigator, but copies of the reports were never provided to the Division. Hormes contends he never knew about the Townsend appraisal and, therefore, did not have a work file concerning the report. However, if Alvarez was working on the reports using Hormes' office and equipment and Alvarez was still under Hormes' supervision at the time of the investigation, it is difficult to reconcile Hormes' stated inability to have the appraisal reports and Alvarez's work file made available. Further, as Alvarez's supervising appraiser, it seems that Hormes would be able to direct Alvarez to provide the reports. Alvarez was retained as a real estate appraisal trainee in Hormes' office throughout the investigation and during the preparation for final hearing in this matter. At some point just prior to the final hearing, Alvarez was released by Hormes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate, finding Respondent, Ronald C. Hormes, guilty of Count V of the Administrative Complaint. A fine of $1,000.00 and a two-year period of probation should be imposed. DONE AND ENTERED this 10th day of June, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of June, 2011.
The Issue The issues in this case are whether the allegations of the Amended Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a certified residential real estate appraiser, holding Florida license number RD3233. At all times material to this case, James Berry was a registered real estate appraiser trainee, holding Florida license number RI16607. Mr. Berry was in training with the Respondent, who was his supervisory appraiser. On December 11, 2006, the Respondent and Mr. Berry issued an appraisal report for residential property located at 9602 Whilehall Street, Naples, Florida, 34109, the "subject property." Mr. Berry conducted the appraisal and prepared the computer-generated appraisal report. He thereafter affixed his digital signature to the report as the appraiser. The Respondent reviewed Mr. Berry's appraisal and thereafter affixed his digital signature to the report as the supervisory appraiser. The appraisal report was on a form designated as "Freddie Mac Form 70, March 2005" and "Fannie Mae Form 1004, March 2005." Beginning on page five and continuing onto page six of the form was an "appraiser's certification." Included within the appraiser's certification was a statement that the appraiser "performed a complete visual inspection of the interior and exterior areas of the subject property." Page six of the form included a "supervisory appraiser's certification." The supervisory appraiser's certification did not state that the supervisory appraiser conducted a visual inspection of the property. The lower part of page six contained a boxed portion containing separate parts that were divided only by space between blocks of text. On the left side of the boxed portion was a part titled "APPRAISER" that included the appraiser's name, license number, company name and address, and appraisal date. It also included the appraiser's digital signature and the date of signature. Below the appraiser's information was a part titled "ADDRESS OF PROPERTY APPRAISED" that included the address and valuation of the subject property. Below the part titled "ADDRESS OF PROPERTY APPRAISED" was a part titled "LENDER/CLIENT" that included the relevant information. On the right side of the boxed portion was a part titled "SUPERVISORY APPRAISER (ONLY IF REQUIRED)" that included the supervisory appraiser's name, license number, company name and address, the supervisory appraiser's digital signature, and the date of signature. Below the part titled "SUPERVISORY APPRAISER (ONLY IF REQUIRED)" was a part titled "SUBJECT PROPERTY," which included the following boxes and text: Did not inspect subject property Did inspect exterior of subject property from street Date of Inspection Did inspect interior and exterior of subject property Date of Inspection Below the part titled "SUBJECT PROPERTY" was a part titled "COMPARABLE SALES," which included the following boxes and text: Did not inspect exterior of comparable sales from street Did inspect exterior of comparable sales from street Date of Inspection The appraisal form contained no instructions to specifically indicate whether the appraiser or the supervisory appraiser was responsible for completing the "SUBJECT PROPERTY" part. Mr. Berry had performed the interior and exterior inspection of the subject property. In completing the form on the computer, Mr. Berry checked the box within the "SUBJECT PROPERTY" part indicating that the interior and exterior of the property had been inspected. The Respondent did not inspect the interior and exterior of the subject property. The evidence is insufficient to establish that either Mr. Berry or the Respondent knew that the supervisory appraiser was apparently responsible for completing the "SUBJECT PROPERTY" part of the boxed section. The Petitioner asserted that the client for the appraiser at issue in this proceeding ("Landwatch/Countryside") required that a supervisory appraiser perform an interior and exterior inspection of the subject property. The assertion was not supported by credible evidence and is rejected.
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 Frank LaPlatte in violation of one count of Subsection 475.624(14), Florida Statutes (2006), and imposing an administrative fine of $2,500 and a six-month suspension, during which an appropriate USPAP course must be completed, followed by a three-year period of probation. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 17th day of February, 2009. COPIES FURNISHED: Robert Minarcin, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 David F. Garber, Esquire Garber, Hooley & Holloway, LLP 700 Eleventh Street South, Suite 202 Naples, Florida 34102 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801
The Issue Whether, under section 120.569(2)(e), Florida Statutes, Petitioner, Garber Housing Resorts, LLC ("Garber"), is entitled to its reasonable attorney's fees incurred because of responding to three specific pleadings filed by Respondent, Glenda Q. Mahaney ("Mahaney"), and if so, the amount of such reasonable attorney's fees.
Findings Of Fact On March 27, 2019, DEP issued an SRCO after reviewing a limited groundwater assessment dated May 9, 2018, which included a recommendation for risk management option level one. DEP's SRCO stated that the prior conditional SRCO was being replaced because the limited groundwater assessment "demonstrates that conditions on the property have changed and improved such that the [conditional SRCO] is no longer appropriate.” Mahaney's May 13, 2019, petition and Garber's May 23, 2019, motion to dismiss were referred to DOAH on June 25, 2019, and assigned Case No. 19-3429. Garber's petition was 77 pages, 654 paragraphs, and contained 56 pages of attachments. 2 The Office Depot email suggested that an email was sent on January 4, 2020, but without the documents attached. The email address to which the document was allegedly sent was "AskDOAH," which is not a proper method for filing pleadings. The November 6, 2019, Notice from DOAH opening this fees case explained that "Parties not represented may file electronically through eALJ, facsimile, or mail. CHOOSE ONE METHOD of filing for each document." On July 18, 2019, Mahaney's petition was dismissed with leave to amend as legally insufficient under Florida Administrative Code Rule 28-106.201(2). The petition also contained irrelevant allegations that were not cognizable in an environmental administrative proceeding. Mahaney was allowed ten days to file an amended petition that "shall comply with the requirements of rule 28-106.201(2) and shall not contain the irrelevant and immaterial allegations discussed in this Order." On August 1, 2019, DEP received from Mahaney a document titled "Petitioner's 7-25-2019 Amended 5-9-2019 Petition for Hearing Regarding SRCO Dated Dated [sic] 3-27-2019 for Lamont Garber and/or Garber Housing Resorts, Inc., and Motion for Summary Proceedings Regarding Issues Admitted by FDEP and/or Motion to Immediately Revoke SRCO or Motion to Abate Proceedings Until Such Time as Petitioner's Property is Tested" ("amended petition"). DEP forwarded Mahaney's amended petition to DOAH on August 5, 2019. The amended petition was 69 pages, 690 paragraphs, and contained 59 pages of attachments. Garber had already filed, on August 2, 2019, its motion to dismiss the amended petition. On August 13, 2019, Mahaney filed her response to Garber's motion to dismiss the amended petition. A Recommended Order of Dismissal was issued on August 19, 2019, finding that the amended petition remained legally insufficient. The amended petition still contained irrelevant allegations concerning issues outside the subject matter of the SRCO. Those issues included a property boundary dispute, trespass and nuisance claims, alleged violations of pollution laws, alleged non-compliance with local land use regulations, flooding issues, and stormwater runoff issues. DEP issued its Final Order on November 1, 2019. Attached to the Final Order provided to DOAH were Mahaney's exceptions and Garber's responses to exceptions that had been timely filed with DEP. The Final Order denied each of Mahaney's exceptions, adopted the Recommended Order of Dismissal, and approved the SRCO. Mahaney is opposed to Garber's plan to develop the property that is the subject of DEP's SRCO. It was clear from Mahaney's testimony and her history of challenging remediation actions taken by Garber and prior property owners, that her primary purpose for bringing the underlying proceeding was her concern for potential contamination of her well and property. In addition, she was concerned that the SRCO did not "certify the entire [Garber] property as clean." Because of Mahaney's stated belief that DEP has not done its job over the years with regard to Garber's property and her property, she had challenged the prior conditional SRCO, and then the replacement SRCO. In addition, Mahaney testified that additional remediation occurred on Garber's property in February 2019, approximately a month before DEP issued the SRCO. She obtained a letter that was from the remediation company to Mr. Lamont Garber describing the remediation activities. Through reasonable inquiry, she learned that the letter was not in DEP's possession at the time of issuing the SRCO. The circumstances surrounding Mahaney's filing of her petition, amended petition, and exceptions show that her pleadings were not filed for an improper purpose. Garber's expert on reasonable attorney's fees reviewed the invoices of legal fees and the filings in the underlying proceeding. He testified that the time spent and legal fees incurred by Garber responding to Mahaney's pleadings and litigating entitlement to fees, were reasonable.3 Mahaney did not present an expert to dispute his testimony. 3 Garber's Composite Exhibit No. 1 consisted of nine invoices for legal services and three prebilling reports dated through January 21, 2020, which was the date of the final hearing. One invoice and one prebilling report addressed a separate matter titled "Maitland Rezone." One invoice did not separate Mahaney's petition from a separate petition filed by Corinne Garrett. The time spent on the underlying proceeding and this fees case reflected in the other seven invoices and two prebilling reports, total $16,621.00.
Findings Of Fact Petitioner, Joseph A. Kopec, was a candidate on the real estate salesman examination given on December 17, 1984 in Orlando, Florida. The test is administered by Respondent, Department of Professional Regulation, Division of Real Estate (Division), and requires a score of 75 to pass. Petitioner received a score of 73. The salesman's licensing examination is developed by Respondent and is based on reference books authorized and published by the Division. It contains 100 questions, each having a value of one point. As noted above, seventy five questions must be answered correctly in order to pass the examination. If a candidate wishes to review his examination after his test score is received, he may request a review session with a Division representative in Orlando. Kopec did so, and was given a copy of examination questions and the appropriate answers in order that he might compare the same with the answers which he gave on the test. After reviewing this material, he notified the Division that he wished to challenge questions 58, 62 and 71, and the grading procedures used on the examination. Thereafter, a validation committee comprised of an attorney, the Division education director, and the Division examination development specialist met and reviewed the three questions, found the Division's answers to be correct, and the grading procedures consistent with Division rules. Petitioner was so notified, thereby triggering this proceeding. Other than his own testimony, Petitioner offered no evidence to show that his answers to the above questions were the most correct. At hearing he conceded that his answer to question 58 was incorrect leaving only two questions under challenge. Uncontroverted expert testimony clearly established that Petitioner's answers to the two remaining questions were incorrect, that the challenged questions were drawn from the authorized reference books, and were not "unclear" or "ambiguous" in any respect. Moreover, the procedures used to grade the examination were consonant with agency rules and instructions on the test booklet.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that no change be made to Petitioner's grade on the real estate salesman examination. DONE and ORDERED this 23rd day of July, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1985. COPIES FURNISHED: Mr. Joseph A. Kopec 1107 Live Oak New Smyrna Beach, FL 32069 H. Reynolds Sampson, Esq. 130 N. Monroe St. Tallahassee, FL 32301
The Issue Whether Respondent, an appraiser, committed the offenses alleged in Counts I, II, and IV of the Amended Administrative Complaint1 and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating and enforcing the statutory provisions pertaining to persons holding licenses as real estate appraisers. Petitioner is charged with the duty to prosecute administrative complaints pursuant to Chapters 20, 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. The Report was dated November 30, 1998. At that time, Respondent was a registered appraiser who could only perform appraisals under the supervision of a certified appraiser. As of November 30, 1998, Mr. Mesa served as the certified appraiser who supervised Respondent. Respondent’s expert witness described Respondent’s status while he worked for Mr. Mesa as being a “trainee,” “apprentice,” or “journeyman.” Both Respondent and Mr. Mesa signed the Report. Above Respondent’s signature is the designation “Appraiser.” Under Respondent’s signature is his state license number and a designation indicating his status as a registered real estate appraiser. Above Mr. Mesa’s signature is the designation “Supervisory Appraiser.” Under Mr. Mesa’s signature is his state license number and a designation indicating his status as a certified real estate appraiser. At the top of the Report were the words “Mesa Appraisals.” On the bottom of the Report were the words “Mesa Appraisals, Inc.” Petitioner failed to prove the factual predicate set forth in paragraph 5(a) of the Amended Administrative Complaint. The testimony of Ms. DeFonzo established that there was adequate documentation contained within the Report to support the negative adjustment to comparable sale 1 because that comparable had a swimming pool and the subject property did not. Petitioner failed to prove the factual predicate set forth in paragraph 5(b) of the Amended Administrative Complaint. The testimony of Ms. DeFonzo established that there was adequate documentation contained within the Report to support the negative adjustments to comparable sales 1, 2, and 3 because those comparable sales were sited on larger lots than the subject property. Petitioner failed to prove the factual predicate set forth in paragraph 5(c) of the Amended Administrative Complaint. The testimony of Ms. DeFonzo established that there was adequate documentation contained within the Report to support the values reached under the cost approach methodology. Petitioner failed to prove the factual predicate set forth in paragraph 5(d) of the Amended Administrative Complaint. The testimony of Ms. DeFonzo established that the Report reflected the intended use of the Report and the intended users of the Report. The Report reflects that it was for lending purposes and identifies the lender/client. As to paragraph 5(e), the testimony of Ms. DeFonzo established that industry practice was for the certified appraiser to maintain the original appraisal file and for the registered appraiser not to keep a copy of the original file because of the confidential and proprietary information that may be contained in appraisal file. There was no competent evidence that Respondent acted inconsistently with that industry practice.3
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of each of the counts set forth in the Amended Administrative Complaint. DONE AND ENTERED this 14th day of November, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2006.
