Findings Of Fact Respondent, Robert T. Sharkey (Sharkey), was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0079702. Sharkey was the qualifying broker of Respondent, Appraisal Associates & Consultants, Inc. (Appraisal Associates), a corporation licensed as a real estate broker in the State of Florida, having been issued license number 0238854. The Real Estate Seminar In 1985 Respondents placed numerous advertisements in the help wanted section of local newspapers seeking to employ real estate appraisers, experienced or inexperienced, and offering to train the inexperienced. Elizabeth Townsend (Townsend) and Robert Newman (Newman) responded to such advertisements. The experiences of Ms. Townsend and Mr. Newman, both licensed real estate salespersons, were similar. Upon responding to the advertisement they were advised that a meeting would be held at Appraisal Associates, and the program would be explained. At the meeting, Ms. Townsend and Mr. Newman were advised that Appraisal Associates was conducting a seminar in residential property appraising and that a fee, $150.00 in the case of Ms. Townsend and $200.00 in the case of Mr. Newman, would be charged. Each paid their fee and executed a "Seminar Reservation and Employment Conditions" agreement which provided: SATISFACTORY COMPLETION OF THE PRESCRIBED COURSE OF STUDY THE TRAINEE WILL HAVE THE OPTION TO PLACE THEIR CURRENT REAL ESTATE LICENSE, UPON ACCEPTANCE BY THE MANAGEMENT, WITH APPRAISAL ASSOCIATES .... FOR THE APPRAISER TRAINEE TO OBTAIN EMPLOY- MENT WITH APPRAISAL ASSOCIATES OR ANOTHER ASSIGNED BROKER IN THE FIRM THEY MUST: SATISFACTORILY COMPLETE THE PRESCRIBED SEMINAR AND/OR COMPLETE A WRITTEN EXAM ADMINISTERED BY APPRAISAL ASSOCIATES AND CONSULTANTS, INC. 2 COMPLETE SATISFACTORILY AT LEAST FIVE SINGLE FAMILY RESIDENTIAL DEMONSTRATION REPORTS. HAVE A CURRENT FLORIDA REAL ESTATE LICENSE. COMPLETE AN APPLICATION FOR MEMBERSHIP OR DESIGNATION TO ANY APPRAISAL ORGANIZATION FOR CANDIDACY OR ASSOCIATE MEMBERSHIP .... The seminars attended by Ms. Townsend and Mr. Newman were similar. Each consisted of 16 hours of class work dedicated to filling out a standardized Fanny Mae form for single family residences, a drive by appraisal of a residential home, and an on site inspection and appraisal of a residential home. While Mr. Newman felt that not enough time was devoted to actual appraising, and Ms. Townsend felt the seminar was terminated prematurely, there was no proof offered that the seminars were not adequate to instruct the participants in the basics of real estate appraisal, or that they were otherwise a sham. Mr. Newman did not take the final examination, did not complete the five single family residential demonstration reports, and never requested employment with Respondents. Ms. Townsend conceded she was familiar with the requirements for employment and that, while she received a "Certificate of Seminar Completion", she never applied for membership in any appraisal organization and never requested employment with Respondents. Sharkey's Qualifications At hearing the Department introduced into evidence a document, titled "Qualifications of R. T. Sharkey, MRA, CRA", which its investigator had secured from Respondent Sharkey. (Exhibit 6) Pertinent to this case' the document provided: AFFILIATES * * * AMERICAN RIGHT OF WAY ASSOCIATION * * * LICENSED REAL ESTATE APPRAISER EXPERIENCE * * * APPRAISER RIGHT OF WAY CONDEMNATION FLORIDA DEPARTMENT OF TRANSPORTATION 1972-1975 The foregoing qualifications attributed to Sharkey are inaccurate, misleading or false. The organization known as the American Right of Way Association has not been known by that name for 3-4 years; the State of Florida does not license real estate appraisers; and Sharkey was never employed by the Florida Department of Transportation as an appraiser for right-of-way condemnation. While the document included qualifications attributed to Sharkey that were inaccurate, misleading, or false, there was no proof that the document was ever presented to any person in the conduct of Respondents' business, or that any person placed any reliance on such document.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Counts 1, 2, 7, 8, and 9 of the Administrative Complaint be DISMISSED with prejudice. DONE AND ENTERED this 10th day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986. APPENDIX Respondents proposed findings of Fact Consisted of 8 unnumbered paragraphs. These paragraphs have been designated paragraphs 1-8, and addressed as follows: Addressed in paragraphs 2-3. Addressed in paragraphs 4. Addressed in paragraphs 4-5. Addressed in paragraphs 4-5. Addressed in paragraphs 4-5. Addressed in paragraphs 3-5. Addressed in paragraphs 6-8. Addressed in paragraphs 6-8. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James G. Kincaid, Esquire 4331 North Federal Highway Fort Lauderdale, Florida 33308 Harold Huff, Executive Director Division of Real Estate/DPR 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue is whether Respondent's license as a state certified general real estate appraiser should be disciplined for the reasons cited in the Administrative Complaint filed on March 5, 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1994, Respondent, James M. Milliken, Jr., was licensed as a state registered appraiser, having been issued license no. RI-0001148 by Petitioner, Department of Business and Professional Regulation, Real Estate Appraisal Board (Board). As such, Respondent could perform appraisal services under the supervision of a licensed or certified appraiser. When the events herein occurred, Respondent was employed as a registered appraiser by Gulf/Atlantic Valuation Services, Inc., in Sarasota, Florida. His supervisor was Alan C. Plush, a state certified general appraiser. After the events herein occurred, Respondent obtained his licensure as a certified general appraiser. His most recent license number is 0002351, also issued by the Board. Respondent also held a real estate license during this period of time, but it was inactive when the alleged misconduct occurred. Pursuant to a change in state law, all registered appraiser licenses automatically expired on November 30, 1994. Renewal notices were sent by the Board to each licensee approximately sixty to ninety days before that date. Unless a licensee renewed his license by the expiration date, he was unable to lawfully "operate" as an appraiser. The evidence shows that Respondent's registration expired on November 30, 1994, and it was not renewed until March 9, 1995, after Respondent had sent a check and application to the Board, and his registration was then renewed. Therefore, between December 1994 and when the license was renewed, he was not authorized to have his name appear on an appraisal report or operate as an appraiser. Respondent later applied for licensure as a certified general appraiser. As a part of that process, he was required to provide evidence of appropriate experience obtained as a registered appraiser. To establish his experience, Respondent provided, among other things, copies of two appraisals he performed in December 1994. Those appraisals have been received in evidence as Petitioner's Exhibits 4 and 5. Respondent's name is found on both documents as being one of the appraisers preparing the reports. As a part of a routine, random audit to verify Respondent's experience to qualify as a certified general appraiser, a Board analyst reviewed his file and discovered that the above two appraisals had apparently been performed when Respondent's registration had expired. This prompted an investigation. During the course of the Board investigation, a Board investigator interviewed Respondent, who acknowledged that he had performed the two appraisals in question, one dated December 9, 1994, and the other dated December 15, 1994. Thereafter, an administrative complaint was issued. At hearing, Respondent indicated that when his registration expired on November 30, 1994, he was attempting to secure a date from the Board on when he could be examined for licensure as a certified general appraiser. Because he did not want to pay a fee for both his current registration and the new licensure, he delayed sending in his registration renewal application and check. When Respondent could not get a satisfactory date for the examination, he forwarded a check to the Board in February 1995 to renew his registration. Respondent contended that he was under the impression that there was a grace period in which he could renew his registration without having his license expire. Testimony at hearing established, however, that no such grace period existed. Respondent also contended that the Board failed to prove that he prepared the reports since his signature does not appear on either document copy. However, his name, title, and license number are typed on the front page of each report, and witness Plush established that Respondent's signature would only appear on the original copy sent to the client, while copies retained by the appraiser's office are customarily unsigned. Further, his supervisor confirmed that Respondent actively participated in the two projects, and as noted above, Respondent acknowledged to an investigator that he worked on both reports. Finally, in seeking a new license, Respondent represented to the Board that he had prepared the two reports. It can be reasonably inferred from the evidence that at least a portion of the appraisal work for the two reports in question was performed by Respondent prior to November 30, 1994, when his registration was still active. Even so, the remainder of the work was completed after his registration had expired. By doing so, Respondent operated as an appraiser without being registered. Both reports make reference to the fact that they were prepared in conformity with "all regulations issued by the appropriate regulatory entities, regarding the enactment of Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989 (FIRREA)." It is fair to assume, then, that the two matters are federally related transactions within the meaning of the law. Each of the two evaluations exceeded one million dollars. Without offering a specific citation, the Board analyst "believed" that the threshold under the federal law in 1994 was $150,000.00, and that any federally related transaction exceeding that value required the use of a state licensed appraiser. If this is correct, Respondent had to be licensed in order to perform appraisal services on the two subject properties. In mitigation, it is noted that this is the first time Respondent has ever been subject to disciplinary action by the Board. In addition, no member of the public or user of the reports suffered harm by virtue of the violation. The violation also appears to be somewhat minor, and there is only one count in the complaint. Finally, Respondent is presently a law student attending school on student loans, and he will suffer financial hardship as a result of the imposition of a fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Real Estate Appraisal Board enter a Final Order finding that Respondent violated Section 475. 626(1)(a), Florida Statutes, and that he be given a reprimand. DONE AND ENTERED this 24th day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of December, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Post Office Box 1900 Orlando, Florida 32802-1900 J. Murray Milliken, Esquire Post Office Box 174 Floral City, Florida 34436-0174 James Kimbler, Acting Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Petitioner's Administrative Complaint dated March 5, 1997, charges that Respondent, Barbara Cogan, obtained a license by means of knowingly submitting false information or engaging in misrepresentation in violation of Section 475.624(12), Florida Statutes. The issue for disposition is whether that violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent Barbara E. Cogan is a state-certified residential real estate appraiser, having been issued license no. 0002758 on or about April 22, 1996, pursuant to Chapter 475, Florida Statutes. Beverly Ridenauer is presently a complaint analyst, but previously was an administrative assistant in appraiser certification for the Department of Business and Professional Regulation (DBPR). As part of her duties at the time, Ms. Ridenauer reviewed Ms. Cogan's application for state certified residential appraiser in March 1996. The application on its face was complete and the requisite fee was attached. Ms. Cogan achieved the required hours of education and passed the state examination. Her application was, therefore, approved. In the meantime, Ms. Ridenauer, as required by law, commenced an audit of the work experience claimed by Ms. Cogan in support of her application for certification. In response to a letter request from Ms. Ridenauer, Ms. Cogan promptly submitted copies of appraisal reports that she had prepared in her pre- certification employment experience. The appraisal reports submitted by Ms. Cogan were all signed by Thomas M. Hayes, a state certified residential appraiser, with the additional notation "assistance by Barbara E. Cogan." In the course of her review, Ms. Ridenauer determined that Ms. Cogan had no real estate sales or broker's license, nor was she registered or certified as an appraiser. Ms. Ridenauer sent a memo to the DBPR complaint division because she deemed that the experience claimed by Ms. Cogan in the application process was invalid: qualifying appraisal experience may only be obtained when an individual is licensed to perform the appraisals. There are no false statements on Ms. Cogan's application. She did not claim any other professional licenses in Florida and she truthfully answered "no" to the question whether she had ever been registered, licensed, or certified in another jurisdiction. Nor did Ms. Cogan misrepresent her work experience. She did all of the work on the appraisals under the supervision of Thomas Hayes, with whom she worked for 2 and 1/2 years. She successfully completed the required appraisal education courses and was trained by Mr. Hayes. Neither Ms. Cogan nor Mr. Hayes had the slightest notion that Ms. Cogan was performing work for which she was not appropriately licensed. The appraisals signed by Mr. Hayes and submitted by Ms. Cogan to the agency as evidence of her experience include this statement in the appraiser's certification: I personally prepared all conclusions and opinions about the real estate that were set forth in the appraisal report. If I relied on significant professional assistance from any individual or individuals in the performance of the appraisal or the preparation of the appraisal report, I have named such individual(s) and disclosed the specific tasks performed by them in the reconciliation section of this appraisal report. I certify that any individual so named is qualified to perform the tasks. . . . (Petitioner's Exhibit no. 4, emphasis in original) The emphasized language in the above text of the certification was underlined by hand and an asterisk was placed in the margin. Below Mr. Hayes' signature and next to an asterisk is the notation acknowledging Ms. Cogan's assistance that is described in paragraph 4, above. When she took her appraisal education courses, Ms. Cogan observed that she was the only student who was not a registered appraiser. She asked her teacher if she had to be registered in order to get certified and he said, "no." Ms. Cogan also had obtained, and was thoroughly familiar with, a 2-sided sheet from the Department of Business and Professional Regulation, Division of Real Estate, titled "Essential Information for Real Estate Appraiser Applicants." The information sheet provides instructions for completing applications. It also describes the qualifications for registered appraiser (75 classroom hours of approved courses), licensed appraiser (75 classroom hours plus 2 years' experience in real property appraisal), certified residential appraiser (120 classroom hours plus 2 years' experience in real property appraisal), and certified general appraiser (165 classroom hours plus 2 years' experience in real property appraisal, including non-residential appraisal work). Ms. Cogan correctly noted that neither the information sheet nor her appraiser rules booklet states plainly that a candidate for certification as a residential appraiser must be first registered or licensed as an appraiser, a real estate salesperson, or a broker. When she was notified of the administrative complaint, she was thoroughly surprised and confused. She never intended to obtain her certification under false pretenses. While agreeing that the rules and statute are not perfectly clear, the agency contends that Chapter 475, Florida Statutes, requires that appraisals must be done by appropriately- licensed individuals. The agency concedes that Ms. Cogan did the work she claimed and that it was good, competent work. But for the fact that she was not registered or licensed when she did the work, Ms. Cogan is fully qualified for her residential real estate appraiser certificate.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency enter its Final Order dismissing the Administrative Complaint against Barbara Cogan. DONE AND ORDERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Barbara E. Cogan 3745 Oak Lane Melbourne, Florida 32934 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 Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
