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.
Findings Of Fact At all times pertinent to the issues herein, the Florida Real Estate Appraisal Board was and is the state agency responsible for the licensing of real estate appraisers in Florida and for the regulation of the real estate appraisal profession in this state. Respondent was a state certified residential real estate appraiser under license number RI 0000912, who was and still is in practice as a residential appraiser in Safety Harbor, Florida. On or about April 13, 1994, William Podolsky, Jr., a state certified appraiser employed by SMS, conducted an appraisal on property located at 4934 Bayway Drive, Hillsborough County, incident to a sale of the property. As a part of the addendum to his appraisal report, Mr. Podolsky recommended an inspection of the roof on the property be made to determine its estimated remaining life, but he was unable to do it. Sometime later, Ms. Levy, an employee of the Barnett Bank, which was i nvolved in the closing on the property, contacted SMS and left a message requesting the property be reappraised to include the roof because Mr. Podolsky, who had done the original appraisal, had not had time to get back and amend the appraisal to include the roof. Ms. Levy's message was given to Respondent when he got to the office about 1:00 PM that day. Consistent with Ms. Levy's request, Respondent, who was the lead appraiser at SMS, pulled the file on the property and found that Mr. Podolsky had done the original appraisal. Respondent claims he then contacted Mr. Podolsky through his beeper and told him the bank wanted a roof inspection. Mr. Podolsky wanted to know why and asked that Respondent call the bank and clarify the request. When Respondent called the bank he spoke with Ms. Levy who indicated it was because Mr. Podolsky had originally recommended such an inspection. Respondent asserts he again contacted Mr. Podolsky to report what he had learned. At that time, Podolsky reputedly said he could not do it at that time because he had to take his son to the doctor that afternoon. Respondent claims Podolsky asked him to do it for him. Podolsky claims he merely suggested Respondent get another inspection made. The fact is that Respondent, along with someone else from his office, went out to the property, looked at the roof, and, seeing new shingles, concluded the needed roof repairs had been done. He thereupon went back to the office and notified the Barnett Bank representative that the job had been done. He then notified Mr. Podolsky. Before checking the roof himself, Respondent advised Ms. Levy at Barnett Bank that Mr. Podolsky could not do the reappraisal as quickly as the bank needed it. He asked if the bank had any objection to him doing it and was advised there was none. Ms. Levy, at hearing, confirmed this, indicating she was satisfied that Respondent did the reappraisal and the work he had done was what the bank needed and was satisfactory, and the transaction went successfully to closing. There is no indication any defect was found in the title or the property and no financial loss was incurred by any party because of Respondent's action in issue. Before leaving, Respondent went to Podolsky's computer terminal and amended the appraisal report which Podolsky had entered into the computer to indicate that the reappraisal had been done. He did not sign his own name to the change and as a result, it appeared as though Podolsky had done the reinspection. This was not so. Respondent did not advise Mr. Podolsky of the computer entry. Respondent has at no time denied adding the statement regarding the reinspection to Mr. Podolsky's Addendum. He admits he failed to put his own name in the change, utilizing only the term, "appraiser." This was, he claims, an oversight and certainly not an attempt to mislead or confuse anybody. Nonetheless, when Mr. Podolsky found out that Respondent had made a change to his Addendum and had failed to attribute the change to himself, he reported the matter to his reviewing appraiser and supervisor. Mr. Podolsky was told the complaint would be handled internally and Podolsky was not to discuss it outside the office on pain of discipline. At that point, Mr. Podolsky decided to file a complaint with the Department and did so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mark D. Genua, be found guilty of a culpably negligent violation of the Uniform Standards of Professional Appraisal Practice and, thereby, of Section 475.624, Florida Statutes, and that he be reprimanded and pay an administrative fine of $500.00. RECOMMENDED this 2nd day of January, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 2nd day of January, 1996. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mark D. Genua 2437 Navarez Avenue Safety Harbor, Florida 34695 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact On July 3, 1985, Petitioner applied for licensure as a real estate salesman with the Florida Real Estate Commission. On this application Petitioner responded "yes" to Question 6 of the application form which asked if he had ever been convicted of a crime. The details of the conviction supplied by Petitioner, that he had been convicted of delivery of paraphernalia, adjudication was withheld, he was fined $1,000 and placed on probation for five years, were also accurate. At the time of his arrest Petitioner and his brother were partners in a record store. For sale in this store was a milk sugar known as Mannitol. Unbeknownst to Petitioner prior to his arrest, Mannitol is a controlled substance. Drug paraphernalia, the delivery of which Petitioner was arrested and brought to trial, was this Mannitol that was in the record store for sale. At his trial on March 18, 1985, Petitioner pleaded guilty to the charge against him, adjudication of guilt was withheld, he was fined $1,000 which he has paid, and he was placed on probation for five years. This is the only time Petitioner has ever been arrested. He has fully complied with all terms of his parole and his probation officer will recommend an early termination of his parole in March 1987 (Exhibit 6). Subsequent to his trial Petitioner has sold his interest in the record store and disassociated himself from any business dealings with his brother. He is currently employed as a planning technician with the Lee County Zoning Department. Petitioner is 34 years old, has been married for five years, and is the father of a 2-1/2 year old son. He has owned a residence in Lee County for 10 years. References submitted by Petitioner to the effect that Petitioner was honest and trustworthy were submitted by individuals who were aware of his arrest and trial. This one arrest for delivering a substance that Petitioner was not even aware was illegal does not establish that Petitioner is not honest, truthful, trustworthy, and of good character. To the contrary, from the evidence presented at the hearing, Petitioner has those qualities necessary for licensure as a real estate salesman.
Findings Of Fact At all times material to these proceedings, the Respondent was the holder of Florida real estate license number 0201688. The last license issued was as a nonactive broker with a home address of 2281 Euclid Avenues Fort Myers, Florida. On December 10, 1986, the Respondent entered a plea of guilty to the offense of obtaining a controlled substance by fraud in Case No. 861034CF in the Circuit Court of Lee County, Florida. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker. The Respondent did not notify the Petitioner in writing of his plea within the thirty-day period because he believed he had entered a plea to a misdemeanor, which was exempt from the reporting requirement of 475.25(1)(p), Florida Statutes. A letter from his attorney before the plea was entered reflected an intent to enter a plea to a misdemeanor, subject to acceptance by the court. On July 15, 1987, in Case No. 86-1790CF in the Circuit Court of Lee County, Florida, the Respondent entered nolo contendere pleas to uttering a forged instrument in Counts I, III, V, VII, IX, XI, and XIII and grand theft in Counts II, VI, VIII, X, XII, and XIV. These charges involved personal business affairs and did not involve misconduct by the Respondent as a real estate salesman or broker. The Respondent notified the Florida Real Estate Commission of his adjudication of guilt for the grand thefts and the utterings of forged instruments in Case No. 86-1790CF by letter dated August 7, 1987. There are no specific findings of mitigating or aggravating circumstances as none were presented during the hearing of this case.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact At all pertinent times, James C. Adkison held a real estate salesman's license. From 1985 until September of 1987, his license was registered with Carrier Realty, Inc. Later in 1987, Mr. Adkison caused his license to be registered with J & W Properties of Panama City Beach, Inc. Even after he left off working for J & W Properties of Panama City Beach, Inc., in early to mid 1988, possibly May or June, his license continued to be registered there, albeit in an inactive status. In May or June of 1986, John W. Mortland spoke to respondent Adkison on the telephone for the first time: Mr. Adkison called him at his home in Kissimmee to inquire about purchasing the duplex Mr. Mortland owned at 112 Lakeside Circle in Panama City Beach. In June of 1986, respondent mailed Mr. Mortland an offer to buy the duplex, for his own account, for $47,000. Petitioner's Exhibit No. 1. The offer recited that "James Adkison is a licensed real estate agent." Id. Mr. Mortland countered with an offer to sell for $50,000. No agreement was reached, until the spring of the following year. By that time, First Federal Savings & Loan Association of Panama City had threatened to foreclose on a second property Mr. Mortland held as an absentee landlord, a duplex on Center Avenue in Panama City. Over the telephone, he agreed to sell respondent the Lakeside Circle duplex, if he would also buy the Center Avenue duplex. Their verbal agreement specified no deadline for closing either transaction. On May 16, 1987, Mr. Adkison sent Mr. Mortland a second written offer to buy the duplex for $47,000, along with an offer to purchase the Center Avenue property. In a cover letter, he wrote: The contract on Center Avenue is fairly simple. If you have any questions about it please call me. What I would like to do on Lakeside is do a quiet assumption. This is where basically everything remains as it is right now with the lender in your name but you sign a deed over to me but I don't record it until I can arrange either to assume the existing mortgage or new financing. The reason I would like to do this is because my cash reserve has not been what it used to be. Petitioner's Exhibit No. 5. Before the Center Avenue property could be sold, the mortgage holder foreclosed. Mr. Mortland never accepted respondent's offer to buy the duplex on Lakeside Circle. He eventually sold it to somebody else for $40,000. Before the foreclosure, Messrs. Adkison and Mortland agreed that Mr. Adkison would take over management of both properties, for a fee of ten percent of rents collected. On July 27, 1987, Mr. Mortland wrote respondent, as follows: You must have noticed that Gabriela made her check payable to you. In any case you should retain 10% of what you collect as a management fee until we can effect our transaction. You may also hold any deposits you collect. Petitioner's Exhibit No. 3. In time, things were sorted out, although not without some suspicion on Mr. Mortland's part. Respondent eventually remitted ninety percent of all rent moneys he collected from tenants at both duplexes to Mr. Mortland. Until after the arrangement had ended, it never came to the attention either of Johnnie Paulie Carrier, a broker with Carrier Realty, Inc., or of John Thomas Ray, the registered real estate broker for J & W Properties of Panama City Beach, Inc. No money respondent collected from tenants of the duplexes Mr. Mortland owned was deposited in any real estate broker's account. While he managed the properties, Mr. Adkison exterminated insects, maintained lawns, effected various repairs, and replaced a vinyl floor in one of the apartments on Lakeside Circle, without monetary compensation, apart from a tithe of the rentals.
The Issue The issues in this case are whether Respondent, Jessalyn Rodriguez, committed the violations alleged in a seven-count Administrative Complaint, filed with the Petitioner Department of Business and Professional Regulation on June 10, 2008, and, if so, what disciplinary action should be taken against her Florida real estate appraiser certification.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes. The Division is charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. Respondent, Jessalyn Rodriguez, is, and was at the times material to this matter, a Florida-certified residential real estate appraiser having been issued license number 4120. The last license issued to Ms. Rodriguez is now an inactive Florida-certified residential real estate appraiser license at 12071 Southwest 131st Avenue, Miami Florida 33166. Appraisal of 6496 Southwest 24th Street. On or about June 1, 2007, Ms. Rodriguez developed, signed and communicated an appraisal report (hereinafter referred to as the “Appraisal”), for property located at 64967 Southwest 24th Street, Miami, Florida 33155 (hereinafter referred to as the “Subject Property”). At the time the Appraisal was made, Ms. Rodriguez was a Florida-certified residential real estate appraiser. The Subject Property, however, was zoned BU-1, a commercial district. The Administrative Complaint entered against Ms. Rodriguez, however, does not allege that Ms. Rodriguez committed any violation by performing an appraisal on commercially zoned property. Errors and Omissions in the Appraisal. Ms. Rodriguez on her sketch of the Subject Property contained in the Appraisal indicates that the total square footage of the Subject Property is 2,105 square feet. On the sketch, she breaks down the property into a 34.0 x 55.6 area of 1890.4 square feet, and a 5.0 x 43.0 area of 215 square feet. In her documentation for the Appraisal, Ms. Rodriguez notes that the adjusted square footage of the Subject Property is 1,890 square feet and that the property appraiser reported the square footage at 1,709 square feet. Ms. Rodriguez failed to verify that the reported 2,105 square feet contained in the Appraisal was accurate. Ms. Rodriguez admitted in her Answer and Response to Administrative Complaint, Respondent’s Exhibit 1, that she failed to verify that a rear addition to the Subject Property, most likely the 5.0 x. 43.0 additional area she measured, had not been permitted through Miami-Dade County. This unpermitted addition would account for the discrepancy in the square footage of the Subject Property noted in Ms. Rodriguez’s notes. Had she investigated the discrepancy in square footage, it is possible she would have discovered the unpermitted addition and reported it in the Appraisal. Ms. Rodriguez indicates in the Appraisal that the Subject Property has a “porch.” The “porch” she was referring to is a rather small area in the front of the Subject Property which has an overhang. The evidence failed to prove that this area, which is depicted in photos accepted in evidence, does not constitute a “porch.” Ms. Rodriguez incorrectly indicated in the Appraisal that the Subject Property had a “patio.” Her suggestion that a “grass area” constituted a patio is rejected as unreasonable. While the Subject Property has a small “yard,” it does not have a patio. Ms. Rodriguez failed to indicate in the Appraisal that the Subject Property did not have any “appliances.” The fact that appliances were to be installed after closing fails to excuse this omission. Ms. Rodriguez did not make any adjustment for, or any explanation of, the 13-year age difference between the Subject Property and comparable sale 3. The Supplemental Addendum section of the Appraisal incorrectly reports that the Subject Property had wood floors and that it had a new pool deck. Ms. Rodriguez has admitted these errors, indicating that they are “[t]ypographical error[s] but did not effect value since no monetary adjustment was made.” Failure to Document. Ms. Rodriguez’s documentation for the Appraisal lacked a number of items, all of which Ms. Rodriguez admits were not maintained. The missing documentation included the following items which were not contained in her work file: Support for a $40 per square foot adjustment for comparable sale 1 and comparable sale 3 in the Sales Comparison Approach section of the Appraisal; Support for a site size adjustment made to comparable sale 1 and comparable sale 2 in the Sales Comparison Approach section of the Appraisal; Support for a $1,500.00 “bathroom” adjustment to comparable sale 1, comparable sale 2, and comparable sale 3 in the Sales Comparison Approach section of the Appraisal; Support for a $5,000.00 “good” location adjustment made to comparable sale 1 and comparable sale 2 in the Sales Comparison Approach section of the Appraisal; Support for the $4,000.00 garage adjustment made to comparable sale 2 in the Sales Comparison Approach section of the Appraisal; Support for the $15,000.00 pool adjustment made to comparable sale 2 in the Sales Comparison Approach section of the Appraisal; Support for the $350,000.00 Opinion of Site Value in the Cost Approach section of the Appraisal; Support for the $10,000.00 adjustment for the “As Is” Value of Site Improvements in the Cost Approach section of the Appraisal; Support for the $20,000.00 adjustment for Appliances/Porches/Patios/Etc. in the Cost Approach section of the Appraisal; and Marshall and Swift pages for the time frame that the Appraisal was completed to justify the dwelling square footage price in the Cost Approach section lf the Appraisal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission: Finding that Ms. Rodriguez is guilty of the violations alleged in Counts One through Seven of the Administrative Complaint as found in this Recommended Order; Placing Ms. Rodriguez’s appraiser license on probation for a period of two years, conditioned on her successful completion of the 15-hour USPAP course; Requiring that she pay an administrative fine of $2,000.00; and Requiring that she pay the investigative costs incurred in this matter by the Division. DONE AND ENTERED this 23rd of February, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2009. COPIES FURNISHED: Ainslee R. Ferdie, Esquire Ferdie & Lones, Chartered 717 Ponce de Leon Boulevard Suite 223 Coral Gables, Florida 33134 Jessalyn Rodriguez 9972 Southwest 125th Terrace Miami, Florida 33176 Robert Minarcin, Esquire Department of Business & Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801-1757 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue at the hearing was whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Petitioner is the sole proprietor of an unincorporated business engaged in the real estate brokerage business. Petitioner's principal office is located in Niceville, Florida. Petitioner's business does not employ more than twenty- five (25) full-time employees and has a net worth not exceeding $2,000,000.00. In DOAH Case No. 88-3758, the Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint dated June 23, 1988. The Administrative Complaint alleged that the Petitioner was guilty of having failed to account and deliver to any person at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, deposit, draft or other documents or things of value, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain, under the circumstances in violation of Subsection 475.25(1)(d), Florida Statutes. The facts allegedly supporting the Administrative Complaint were Petitioner's failure, after entry of a County Court Judgment, to return a sum of money to the potential buyers of Petitioner's own house. The money was received by Petitioner and retained by Petitioner in a transaction involving the sale of his own home. The transaction did not involve Petitioner as a broker and did not involve Petitioner as an escrow agent. The escrow agent specified in the contract was another real estate company. The Administrative Complaint was based on the Board's determination of probable cause at its meeting on June 21, 1988. At that meeting, Mr. Fred Wilson, Chief Staff attorney for the Division of Real Estate, presented the case to the probable cause panel. The presentation of the case was wholly based on the investigative file developed by DPR's investigator. A review of that investigative file and the transcript of the probable cause proceeding does not support a finding of probable cause in this case. In order to support such a finding, the evidence considered by the Board must disclose that there is a reasonable basis in law and fact for the agency to proceed with its intended action. In this case, The agency's intended action was to clearly and convincingly establish that the licensee failed to account and deliver escrowed property to the person entitled to such property in violation of Section 475.25(1)(d), Florida Statutes and in light of the controlling law in this area as set forth in Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983). It is clear that from the inception of these proceedings, the facts which drove the prosecution of this case were that a sale of real property was involved along with an unpaid civil court judgment and a buyer's check with the words "house down payment" written in the space for memos on the check. The investigative report did not contain any facts supporting an escrow between Petitioner and his potential buyers. Nor, did the report contain any facts which established that Petitioner acted as a real estate broker in the transaction involving his house. The investigative report seems to be more concerned with collection of the judgment debt than with ascertaining facts crucial to the determination of a violation in this case. As such, the Division did not have a reasonable basis in law and fact at the time it initiated the action against Petitioner and therefore said proceeding was not substantially justified. After hearing, a Recommended Order was entered on April 11, 1989, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that the Petitioner, Nevin H. Nordal, was acting as the seller of his own property and not as a broker in the transaction in question and that the sum of money received by the Petitioner was not properly escrowable property. Additionally, the recommendation was based on conclusions of law that Subsection 475.25(1)(d), Florida Statutes, the subsection under which the Petitioner was charged, only applies when escrowed property is involved and is not applicable in instances where a real estate broker is acting as the seller of his own real property unless the contract for sale establishes the seller/broker as the escrow agent, citing Fleischman. Other types of contractual disputes, whether involving personal real estate transactions by a licensee or not, may not be enforced by disciplinary action undertaken by a regulatory agency. The fact that a judgment had been rendered against the Petitioner by the civil court does not, by itself, make a contractual dispute actionable by a regulatory agency since such a judgment was nothing more than a debt similar to any debt owed to a bank or a department store. Mere refusal to pay such debts is not a ground for discipline under Chapter 475. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation contained in the Recommended Order and dismissed the Administrative Complaint on May 16, 1989. The Petition for Attorney's Fees and Costs pursuant to Rule 22I-6.035, Florida Administrative Code, and Section 57.111, Florida Statutes, subsequently filed was timely, having been filed within sixty days (60) after the date on which the Petitioner became a prevailing small business party. According to the initial Affidavit filed by Petitioner's attorney, Petitioner initially incurred legal fees in the amount of $5,160.00 and costs in the amount of $505.65 in DOAH Case NO. 88-3758. These fees and costs are reasonable. At the Final Hearing in this cause, Petitioner's attorney filed an Affidavit as to Additional Fees and Costs incurred by Petitioner in the preparation for and litigation of Petitioner's entitlement to an award of attorney's fees and costs under Section 57.111, Florida Statutes. Said Affidavit stated the additional attorney's fees incurred as $530.00 and the additional costs as $15.40. The additional fees and costs are reasonable. No evidence was presented that demonstrated the presence of any special circumstances which would make an award of attorney's fees and costs unjust in this case. Petitioner is entitled to an award of attorney's fees in the amount of $5,690.00 and costs in the amount of $521.05 for a total amount of $6,211.05 due to Petitioner from Respondent.
