09-006822PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Fred Catchpole Status: Closed Recommended Order on Tuesday, April 27, 2010.

Summary: Petitioner did not prove the allegations in the Amended Administrative Complaints by clear and convincing evidence. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case Nos. 09-6822PL

) 09-6824PL

FRED CATCHPOLE AND )

WILLIAM WOODS, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

On April 26, 2010, a hearing was held by means of video

teleconferencing, with sites in Tallahassee and Jacksonville,

Florida, before Lisa Shearer Nelson, a duly-appointed

Administrative Law Judge.

APPEARANCES

For Petitioner: Robert Minarcin, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite N801

Orlando, Florida 32801

For Respondents: Fred R. Catchpole, pro se

5449 Marcia Circle

Jacksonville, Florida 32210

William Woods, pro se

2103 Herndon Street

Dover, Florida 33527

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondents violated

the provisions of Section 475.624, Florida Statutes (2007), and

Florida Administrative Code Rule 61J1-7.001, as charged in the

Administrative Complaints, and if so, what penalty should be

imposed?

PRELIMINARY STATEMENT

On October 8, 2009, the Department of Business and

Professional Regulation, Division of Real Estate, filed separate

Administrative Complaints (DBPR Case Nos. 2009016581 and

2009016587, respectively) against Fred Catchpole and William

Woods, alleging violations of Section 475.624, Florida Statutes

(2007), and Florida Administrative Code Rule 61J1-7.001. Each

Respondent disputed the allegations in the Administrative

Complaints, and on December 17, 2009, the cases were forwarded to

the Division of Administrative Hearings for assignment of an

administrative law judge.

Because the allegations in the Administrative Complaints

concerned the preparation of the same appraisal report, the cases

were consolidated, and were originally scheduled for hearing

February 16 and 17, 2010. At the request of Respondents, the

matter was continued and rescheduled for April 26 and 27, 2010.

The Department moved to amend the Administrative Complaints

because of a typographical error in Count II, and the Motion to

Amend was granted by Order on March 10, 2010. The hearing began

as scheduled, and at the commencement of the hearing, Petitioner

announced that it was proceeding only on Counts I and II of the

Amended Administrative Complaints. Petitioner's Exhibits

numbered 1-4, and 7-8 were admitted into evidence with no

objection. The Department submitted the testimony of James

Courchaine. In light of the events that took place during the

hearing, the remaining relevant procedural matters will be

included in the Findings of Fact and Conclusions of Law below.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of real estate appraisers pursuant to

Section 20.165 and Chapters 455 and 475, Part II, Florida

Statutes (2009).

2. Respondent, Fred Catchpole, is a licensed real estate

appraiser, having been issued license number RD-7674.

3. Respondent, William E. Woods, is a registered trainee

appraiser, issued license RI-4855. At the times relevant to

these complaints, Mr. Woods was supervised by Respondent

Catchpole.

4. On October 8, 2009, the Department issued Administrative

Complaints against both Respondents. At the heart of both

Administrative Complaints were allegations related to an

appraisal report allegedly prepared by Catchpole and Woods. With

the exception of the order in which Respondents are identified,

the allegations in paragraphs four and six of the Administrative

Complaints are identical. Quoting from the Administrative

Complaint in Case No. 09-6822 (DBPR Case No. 2009016581), the

Administrative Complaint alleges the following:

4. On or about September 25, 2007, Fred

Catchpole (Respondent) and William Woods

developed and communicated an appraisal

report (Report 1) for property commonly known

as 2250 Braxton Street, The Villages, Florida

32162 (Subject Property), and estimated its

value at $190,000.00. A copy of Report I is

attached hereto and incorporated herein as

Administrative Complaint Exhibit 1.

* * *

6. Respondent made the following errors and

omissions in Report 1:

A) Incorrect effective on the cover of the

report, the correct date is September 25,

2007;

B) Incorrect effective date on in the

Reconciliation section of the report;

C) Incorrect effective date on the signature

page of the Report;

D) Incorrect Subject Property Inspection

date on the signature page of the Report;

E) Incorrect Comparable Sales inspection

date on the signature page of the report; . .

. .

5. The Amended Administrative Complaint alleges the same

facts, with the same dates.

6. At hearing, it was established that there is no

appraisal report developed or communicated that is dated

September 25, 2007. The Report, attached to each Administrative

Complaint and each Amended Administrative Complaint, is actually

dated February 25, 2007.

7. Once it was established that there was no appraisal

report matching the dates alleged in the Administrative

Complaint, the Department moved to dismiss the Amended

Administrative Complaints in their entirety, with prejudice.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties to this action in

accordance with Sections 120.569 and 120.57(1), Florida Statutes

(2009).

9. These disciplinary actions by Petitioner are penal

proceedings in which Petitioner seeks to discipline Respondents’

licenses as real estate appraisers. Petitioner bears the burden

of proof to demonstrate the allegations in the Amended

Administrative Complaints by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

10. Once it was established that there was no appraisal

report developed or communicated on the date identified in the

Amended Administrative Complaints, the Department elected not to

present any further evidence. Accordingly, the Department failed

to sustain the allegations against Respondents by clear and

convincing evidence.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Florida Real Estate Appraiser's Board enter Final

Orders with respect to each Respondent dismissing the Amended

Administrative Complaints in their entirety.

DONE AND ENTERED this 27th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of April, 2010.

COPIES FURNISHED:

Robert Minarcin, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801-1757

Fred Catchpole

5449 Marcia Circle

Jacksonville, Florida 32210

William Woods

2103 Herndon Street

Dover, Florida 33527

Reginald Dixon, 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 N801

Orlando, Florida 32801-1757

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.