The Issue Whether the Respondent, Antonio Prieto, committed the violations alleged in the Administrative Complaint involving the standard for the development of or the communication of a real estate appraisal and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, the Petitioner is the state agency charged with the responsibility of regulating persons holding real estate appraisers' licenses in Florida. At all times material to the allegations of this matter the Respondent has been a State-certified residential real estate appraiser holding license number RD0000591. On or about July 6, 1995, the Respondent prepared an appraisal report for property located at 2821 Coacoochee Street, Miami, Florida. The appraisal report completed for this property did not contain a certification page. When the Department requested Respondent's entire appraisal file for the Coacoochee property, the Respondent failed to produce a certification page in connection with the work performed for this appraisal. The Respondent acknowledged that an appraisal report without the certification page is considered incomplete. The Respondent provided no credible explanation for the failure to maintain the certification page for the Coacoochee appraisal report file. On or about September 8, 1998, the Respondent was responsible for a second appraisal report for real property located at 12695 Southwest 92nd Avenue, Miami, Florida. As of the date of the second report, the estimated value of the subject property was noted to be $395,000. In the development of the second report the Respondent acted as a supervisory appraiser to Rita Rindone, a State-registered assistant real estate appraiser. In the Respondent's presence, Ms. Rindone provided the Department with a copy of the entire work file for the second property's appraisal report. Inconsistent and incomplete information in the work file for the second property revealed errors in following USPAP standards. For example, the alleged existence of an unrecorded quit claim deed and the disparity between the subject property's listed price ($268,000) and the appraised value should have been "red flags" to the Respondent. In fact the listing was not even disclosed in the appraisal report (an error the Respondent acknowledged). As the supervisor to Ms. Rindone, the Respondent was responsible to ensure that the standards of USPAP were followed. Based upon the testimony of the expert, DeFonzo, it is determined that the Respondent's failures in connection with the second appraisal report constitute negligence, gross negligence, incompetence, or fraud. The USPAP standards require appraisers to maintain records for at least five years. Some circumstances may warrant a longer retention of records. At the minimum the Respondent should have maintained a complete work file for the relevant period of time for the Coacoochee property. The failure to make that complete file available to the Department is a violation of law. The USPAP standards require that the methodology option used in preparing an appraisal report be prominently stated. The option used for the second property was not so stated. Such failure is a violation of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Appraisal Board enter a Final Order determining the Respondent has violated Sections 475.624(14), and (15), Florida Statutes, and imposing an administrative fine in the amount of $3000.00, together with suspending the Respondent's license for a period of five years. Further, it is recommended that prior to being actively licensed, the Respondent be required to complete a continuing education course to establish familiarity with USPAP and all rules and regulations governing licensees in this state. DONE AND ENTERED this 23rd day of December, 2002, in Tallahassee, Leon County, Florida. _________________________________ J. D. PARRISH 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 December, 2002. COPIES FURNISHED: Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 James R. Mayfield, Esquire 18080 Palm Point Drive Jupiter, Florida 33458 Stacy N. Robinson Pierce, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Suite N308 Orlando, Florida 32802
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 Whether the Respondent committed the violations alleged in the Administrative Complaint dated March 3, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the state agency responsible for investigating complaints filed against registered, licensed, or certified real estate appraisers and for prosecuting disciplinary actions against such persons. § 455.225, Fla. Stat. (2005). The Florida Real Estate Appraisal Board ("Board") is the state agency charged with regulating, licensing, and disciplining real estate appraisers registered, licensed, or certified in Florida. § 475.613(2), Fla. Stat. (2005). At the times material to this proceeding, Mr. Rutan was a certified residential real estate appraiser in Florida, having been issued a license numbered RD 2791. Mr. Rutan had been a certified residential real estate appraiser in Florida for approximately 10 years. At the time of the events giving rise to this action, Mr. Rutan was employed by Excel Appraisal. Mr. Rutan interviewed and hired Frank Delgado, Juan Carlos Suarez, and Ricardo Tundador to work at Excel Appraisal as state-registered assistant real estate appraisers. At all times material to this proceeding, Mr. Rutan was Mr. Suarez’s supervisor and was responsible for Mr. Suarez’s appraisals. On or about June 16, 1999, Mr. Suarez prepared an appraisal for property located at 9690 Northwest 35th Street, Coral Springs, Florida, in which he valued the property at $325,000. The property is a multi-family, four-plex property. Mr. Rutan signed Mr. Suarez's appraisal as the supervisory appraiser and certified on the appraisal that he had inspected the property by placing an “X” in the "Inspect Property" box. The appraisal form signed by Mr. Rutan contains a "Supervisory Appraiser's Certification" that provides: If a supervisory appraiser signed the appraisal report, her or she certifies and agrees that: I directly supervise the appraiser who prepared the appraisal report, have reviewed the appraisal report, agree with the statements and conclusions of the appraiser, agree to be bound by the appraiser's certifications numbered 4 through 7 above, and am taking full responsibility for the appraisal and the appraisal report. It is the custom in the industry that a supervisory appraiser who certifies that he or she has inspected the property in question must inspect the property inside as well as outside before he or she can sign the appraisal. Mr. Rutan inspected the property the day after he signed the appraisal and only inspected the property from the outside. The appraisal report on the property at issue herein listed a prior sale of the property from Rodney Way to Doyle Aaron for $325,000 on April 28, 1999. The appraisal failed to list the sale of the property on the same day from Julius Ohren to Rodney Way for $230,000. Mr. Rutan did not investigate the relevant sales history of the property and was unaware, therefore, that the property had been “flipped” and was considerably overvalued in the appraisal report.2 Mr. Rutan admitted that he did not investigate prior sales and that the property was substantially overvalued. Mr. Suarez listed in the appraisal report three "comparable sales," that is, sales of properties similar in type and location to the property being appraised, to support the valuation of $350,000. The first comparable property used in the appraisal was property located at 4102 Riverside Drive, Coral Springs, which was listed in the appraisal report as being previously sold for $315,000. Earlier on the day that the Riverside Drive property was sold for $315,000, however, it had been sold for $185,000. Mr. Rutan failed to research and review the sales of the comparable properties that were included in Mr. Suarez's appraisal report, and the "comparable sale" of property on Riverside Drive was not properly used to value the property that was the subject of the appraisal report at issue herein. Mr. Suarez failed to make the proper adjustments in value on the Riverside Drive property based on the features of that property that were superior to the features of the subject property. The Riverside Drive property was located on a canal and should have had a negative adjustment with respect to the subject property, which was not on a canal. Mr. Suarez included a positive adjustment in the comparable sales data for the Riverside Drive property. Mr. Rutan failed to review the comparable property adjustments submitted by Juan Carlos Suarez for the appraisal of the subject property. Mr. Suarez overstated the rental income of the subject property in his appraisal report. Mr. Rutan failed to research and review the rental figures Mr. Suarez submitted. When Mr. Rutan was notified by Brokers Funding, a company that purchased the loans on the subject property, that there were problems with the appraisal done by Mr. Suarez, Mr. Rutan checked additional comparable sales and interviewed the tenants in the building. He also hired another appraiser to conduct an appraisal of the subject property. Based on his investigation and Mr. Salimino’s appraisal, Mr. Rutan discovered the problems in Mr. Suarez's appraisal and report of the subject property. Mr. Salimino’s appraisal for the subject property was $290,000, but Mr. Rutan estimated that his appraisal would have been approximately $250,000. Mr. Rutan fired Mr. Suarez, as well as Frank Delgado, and Ricardo Tundador, all three of whom were subsequently indicted on federal charges relating to real-estate-appraisal scams. In a Final Order entered on April 22, 2002, Mr. Rutan was found guilty by the Board of violating Sections 475.624(14) and 475.624(15), Florida Statutes, and was ordered to pay an administrative fine of $1,000. Mr. Rutan trusted Mr. Suarez to do an honest and competent appraisal and was rushed by Mr. Suarez to approve the appraisal on the subject property. The evidence presented by the Division is sufficient to establish with the requisite degree of certainty that Mr. Rutan failed to carry out his responsibilities as Mr. Suarez's supervisory appraiser, failed to review Juan Carlos Suarez’s appraisal for accuracy, and failed to inspect the inside of the subject property, which caused or contributed to the substantially over-stated valuation of the subject property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Appraisal Board enter a final order finding that William Rutan is guilty of violating Section 475.624(10), (14), and (15), Florida Statutes, as alleged in Counts I through IV of the Administrative Complaint and revoking Mr. Rutan's Florida certification as a real estate appraiser. DONE AND ENTERED this 31st day of August, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 31st day of August, 2005.
The Issue Did the Respondent, Howard Klahr, fail to deliver or communicate appraisals of properties located at 5821 Southwest 20th Street, Miami, Florida and 2761-63 Southwest 31 Place, Miami, Florida 33133? Did Respondent, Howard Klahr, commit or make fraud, misrepresentation, concealment, false promises, false pretenses, dishonest conduct, culpable negligence, or breach of trust in his business relationship with Jane Asorey. What is the proper discipline, if any, to be imposed on Respondent, Howard Klahr (Mr. Klahr)?
Findings Of Fact Respondent, Howard Klahr, is a Florida state certified general real estate appraiser trading as Easthill Valuation and Consulting. He holds license number RZ-2678 and has since August 2003. On January 7, 2007, Jane Asorey, now Jane Zuleta, met with Mr. Klahr and engaged him to provide appraisal evaluations of two properties and to provide expert witness and consulting services for Ms. Asorey’s dissolution of marriage case. One property was the marital home, a single family residence located at 5821 Southwest 20th Street, Miami, Florida. The other property was a duplex located at 2761-2763 Southwest 31st Place, Miami, Florida. The duplex appraisal evaluation was to be “retrospective” and evaluate the worth of the duplex in 1991, 1999, and 2005. The appraisal evaluation of the single family residence was to be for the value in 2005. The evaluations were also to include a review of appraisals prepared by others. Ms. Asorey paid Mr. Klahr a retainer of $1,000.00 for the appraisal evaluation and services on November 7, 2007, including a $500.00 charge for the appraisal evaluation. Ms. Asorey made the check out to Mr. Klahr’s company, Easthill Valuation and Consulting. Mr. Klahr accepted the payment and cashed Ms. Asorey’s check. In a November 5, 2007, e-mail, Ms. Asorey provided Mr. Klahr the telephone number and e-mail address for her attorney. That November 5, 2007, e-mail explained that the work was for dissolution of marriage trial scheduled for December 14, 2007. Mr. Klahr and Ms. Asorey did not enter into a written engagement agreement. Despite repeated efforts by Ms. Asorey to obtain the evaluations, Mr. Klahr never provided her or her attorney the appraisal evaluation he agreed to provide and for which he had been paid. Mr. Klahr attended the deposition of an appraiser in the legal proceeding. Ms. Asorey paid him an additional $750.00 for that service. Ms. Asorey spoke to Mr. Klahr on December 20, 2007, and reminded him of the need for his report and a December 28, 2007, deadline for filing the evaluation in her case. Because Mr. Klahr did not provide the appraisal evaluation, Ms. Asorey missed exhibit deadlines in her case and had to continue the trial. On January 2, 2008, Ms. Asorey sent Mr. Klahr an e- mail importuning him to call her, advising him of her repeated efforts to reach him by telephone since December 20, 2007, and emphasizing the urgent need for the report which was overdue. There is no evidence that Mr. Klahr responded to that e-mail. Because Mr. Klahr did not provide the appraisal evaluation, Ms. Asorey had to engage and pay another appraiser to provide the evaluations. On July 26, 2008, the Department advised Mr. Klahr of its investigation and provided him a copy of the complaint. The complaint specified that Mr. Klahr had not provided the appraisal reports and described Ms. Asorey’s efforts to communicate with him. Bernardo Yepes, the Department Investigator, spoke to Mr. Klahr October 15, 2008. Mr. Klahr stated that he had sent the DBPR documents responding to the complaint. Mr. Yepes advised Mr. Klahr that the Department had not received the documents. He asked Mr. Klahr to send them by facsimile transmission. Mr. Klahr did not send the responsive documents to the DBPR by facsimile transmission or any other means. The first time that Mr. Klahr provided any person copies of the appraisal reports that he maintains he prepared was on December 15, 2009; that was the night before the final hearing when Mr. Klahr submitted them to the Clerk of the Division of Administrative Hearings and to the DBPR attorney. Mr. Klahr held a real estate license in 2002 and 2003. He was disciplined for violations of real estate licensing laws in 2002 or 2003. Mr. Klahr had a previous complaint, similar to the complaint in this matter, filed against him. It was dismissed after an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Department of Business and Professional Regulation, Division of Real Estate enter a final order that: Dismisses Count III; Finds that Mr. Klahr violated 475.624(2), Florida Statutes, and imposes a fine of $1,000, 90-day suspension of Mr. Klahr’s license, an 18-month term of probation during which Mr. Klahr must satisfactorily complete 15 hours of education coursework in the areas of Florida Law and Ethics; Finds that Mr. Klahr violated Section 475.624 (16), Florida Statutes, and imposes a fine of $1,000, 90-day suspension of Mr. Klahr’s license, an 18-month term of probation during which Mr. Klahr must satisfactorily complete 15 hours of education coursework in the areas of Florida Law and Ethics; Makes the terms of probation and periods of suspension concurrent with the probation beginning after the period of suspension concludes; and Requires Mr. Klahr to pay Jane Zuleta $1,000.00 within 30 days of the date of the final order. DONE AND ENTERED this 24th day of February, 2010, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 24th day of February, 2010.
