20-004792PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Stacy L. Fretina Status: Closed Recommended Order on Monday, March 8, 2021.

Summary: Petitioner proved 2 of 3 counts charged in the Administrative Complaint. Recommend probation, fine, and continuing education courses.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF B USINESS A ND

P ROFESSIONAL R EGULATION , D IVISION OF

R EAL E STATE ,

Petitioner , Case No. 20 - 4792PL

vs.

S TACY L. F RETINA ,

Respondent .

/

R ECOMMENDED O RDER

On January 5, 2021 , Yolonda Y. Green, a duly - designated Administrative

Law Judge of the Division of Administrative Hearings (ÑD OAH Ò), conducted a

hearing pursuant to section 120.57(1), Fl orida Statutes (2020 ), by Zoom

conference.

A PPEARANCES

For Petitioner: Delhon Braaten, Assistant General Counsel

James Fortunas, Esquire

Department of Business and

Professional Regulation

2601 Blair S tone Road

Tallahassee, Florida 32399

For Respondent: Daniel Villazon, Esquire

5728 Major Boulevard , Suite 535

Orlando, Florida 32819

S TATEMENT OF T HE I SSUE S

Whether Respondent violated F lorida law related to real estate appraisal

professionals as alleged in the administrative complaint; and if so , what

penalty is appropriate.

P RELIMINARY S TATEMENT

On March 6 , 20 20 , Petitioner, Department of Business and Professional

Regulation (ÑPetitionerÒ or Ñ Department Ò), filed a three - count Administrative

Complaint against Re spondent, all eging: 1) a violation of section 475.624(4),

Florida Statu tes, by failing to comply with Florida Administrative Code Rule

61J1 - 9.001, by failing to comply with the U niform Standards of Professional

Appraisal Practice (ÑU SPAP Ò) rules; 2) a violation of sect ion 455.227(1)(m) ,

Florida Statutes ; and 3) a violation of section 475.624(15). Respondent timely

requested a formal hearing to dispute the allegations in the Administrative

Complaint.

On October 27 , 2020, the Department referred this matter to DOAH for

a ssignment of an A dministrative Law J udge and this matter was assigned to

the undersigned. The undersigned scheduled this matter for final hearing on

January 5 and 6, 2021 .

Prior to the final hearing, the parties filed a Joint Pre - H earing

St ipulation , in which they stipulated to certain facts. T o the extent relevant,

the parties' stipulated facts have been incorporated in the findings below.

During preliminary matters, the undersigned heard argument from both

parties regarding PetitionerÔs Motion for Ju dicial Notice. After hearing

argument from both parties, the undersigned denied the motion.

On January 5 , 2021, the undersigned co mmenced the final hearing.

Petitioner presented the testimony of two witnesses : Teresa White (mortgage

underwriting expert) a nd Joel Salley (general real estate appraiser expert).

The undersigned admitted PetitionerÔs Exhibits 1 through 14 and

18 through 23 in to evidence. Respondent testified on h er own behalf and

presented no other witnesses. Respondent Ôs exhibits 1 through 3 w ere

admitted into evidence.

The one - volume Transcript was filed with DOAH on February 4, 2021.

The parties timely filed P roposed Recommended Orders ("PRO") , which have

been considered in preparation of this Recommended Order.

Except where otherwise in dicated, all references to the Florida Statutes in

this Recommended Order are to the 201 9 edition. See McCloskey v. DepÔt of

Fin. Servs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013)(holding that statutes

and rules in effect at the time of the allegations apply , unless otherwise

specified).

F INDINGS OF F ACT

Background

1. Petitioner is the state agency charged with regulating the practice of

real estate appraisal pursuant to s ection 20.165 and c hapters 455 and 475,

Florida Statutes.

2. At all times material to th is matter, Respondent was licensed as a state

certified general real estate appraiser in the s tate of Florida, having been

issued license number RD 6606. Respondent is also certified as an appraiser

in Texas. Respondent has no prior discipline.

3. At all t imes material to this matter, RespondentÔs address of record was

11 Racetrack Road Northeast, Suite F4, Fort Walton Beach, Florida 32547.

4. Respondent has a 15 - year history of practicing in the area of appraising

property and preparing appraisal reports. She has appraised approximately

15 properties in Santa Rosa C ounty, and has significant knowledge of the

geographical area to perform appraisals in Santa Rosa C ounty.

5. Respondent has taken college courses to develop her education of

appraisal practice, and she has taken courses on proper supervision of a n

appraisal trainee .

6. In this case, Respondent was retained by Value Links, an appraisal

management company to appraise a residential real estate property located

at 6839 Gordon Evans Road, Navarre, F lorida 32566 in Santa Rosa County

(ÑSubject PropertyÒ) . Value Lin ks was serving as the agent for George Mason

Mortgage, LLC (ÑIntended UserÒ or ÑLenderÒ ) .

7 . The engagement letter required that the final appraisal report include

original photo s of all comp arable sales. M ultiple L isting S ervices (ÑMLSÒ)

photos were a cceptable if original photos were not available, so long as the

report includes a comment disclosing that MLS photos were used.

8 . The final apprais al report w as required to be submitted to the I ntended

User.

First Appraisal Report

9 . At the outset of receiving the appraisal assignment, Respondent

assigned the appraisal to herself and had her appraiser trainee, Stephanie

Lanette Hansen, assist her with the assignment. Ms. Hansen, a state

registe red trainee appraiser, has been issued license number RI24220.

10 . It is customary that an appraiser trainee under the supervision of a

certified residential appraiser is permitted to perform all aspects of an

appraisal assignment including inspecting and measuring the Subject

Property with or without their supervisor present.

11 . Respondent Ô s appraiser trainee, Ms. Hansen, who did not testify at the

hearing, has been training with Respondent since 2014 .

1 2 . Ms. Hansen performed a physical inspection i ncluding taking pictures

of the interior and exterior of the Subject Property. Respondent did not

p hysica l ly visit the property , but rather she visually examined the

photographs Ms. Hansen took during her inspection.

13 . A ma terial issue of dispute in th is matter is whether RespondentÔs

review of the photographs taken by her trainee could be considered an

inspection of the property. PetitionerÔs expert testified that the term ÑvisualÒ

inspection is known within the real estate appraisal industry to mean

Ñ personalÒ inspection. Petitioner also pointed to the language of USPAP

Standards Rule 2 - 3 for guidance regarding the meaning requirement of a

personal inspection.

14 . USPAP Rule 2 - 3 provides a standard certification that the appr aiser

shall indicate whet her he or she made a personal inspection of the property

that is the subject of th e report . The language of the rule does not require a

personal inspection . Moreover, the certification cites to an advisory opinion

regarding Inspection of Subject Property. See USPAP Advisory Opinion 2

(AO - 2) . The advisory opinion regarding minimum level of inspection provides

as follows: ÑAn appraiser may use any combination of property inspection,

plans and specifications, asset records, photographs , property sketches,

reco rded media, etc., to gather information about the relevant characteristics

of the subject propertyÈ. Ò

1 5 . On or about September 5, 2019, with an effective date of August 23, 2019,

Respondent prepared and transmitted the first appraisal report for the

Sub ject Property , with the assistance of her trainee . Respondent assessed the

market value of th e property at $388,000.

1 6 . In the appraisal report , Respondent indicated in the additional

certification comments section that : ÑS tate R egistered Trainee Apprais er

Florida License Number RI 24220, Stephanie Lanette Hanson has

contributed significant assistance in this report. The extent of the assistance

includes: inspecting, gathering, analyzing, and verifying data of the [ Subject

Property ] and comparable propert ies, data entry , market adjustments,

reporting and reconciliation of market value. Ò

17 . In the first appraisal report, Respondent did not identify the presence

o f any fireplace .

18 . Respondent used MLS photos for the comparable properties. However,

she did not disclose in the report that the photo s were not original.

19 . RespondentÔs appraisal report included a standard Fannie Mae

certification f orm. The certification form listed a provision regarding

perform ance of a complete ÑvisualÒ inspection of th e interior and exterior of

the Subject Property.

20. Respondent testified that she performed a visual inspection of the

property by examining the photographs, which, according to her experience,

is permitted in the appraisal industry.

21 . Respondent sign ed the first appraisal report as the primary appraiser ,

instead of as the supervising appraiser . RespondentÔs signature on the report

was her attestation that she certified the representations in the report.

22 . Respondent also maintained a work file for her appraisal of the

Subject P roperty. RespondentÔs work file contained all documentation

required to comply with USPA P rules, including the name of the Intended

User, copies of all written reports , all data, and documentation necessary to

support her opi nion and conclusion s.

2 3 . After transmission of the first appraisal report, the Intended User

contacted Respondent and advised her that the buyer, sellers, and listing

agent wanted reconsideration of the value of the property . Respondent agreed

to amend h er report.

Second Appraisal Report

2 4 . Respondent revised her first appraisal report as requested and

addressed the concerns in the second report, including a comparable sales

assessment for a comparable property, the absence of a fireplace, and the

valu e assessment of the property.

2 5 . In her second appraisal report , Respondent addressed the requested

revisions. First, she noted that the comparable sale assessment as a Q3

construction rating and supported her reason for assessing the Subject

Property a s a Q4 rating because it was located in a superior neighborhood

with amenities. Respondent also addressed the omission of the fireplace . She

testified that she inadvertently missed the permanent fireplace. She furth er

explained that the second alleged fire place was electric and , thus, considered

personal property. A s a result, she did not give the electric fireplace

consider ation in the assessment. She provided this same support for her

decision in the second appraisal report.

2 6 . Based on her identificat ion of the permanent fireplace, Respondent

corrected the assessment of the property to reflect a $2,000 inc rease in value .

2 7 . RespondentÔs $2,000 increased adjustment for the fireplace was also

supported in RespondentÔs work file that she maintained for this appraisal

assignment. In determining the value of the Subject PropertyÔs fireplace ,

Respondent considered the cost stated in Marshall Swift Cost Handbook that

she maintains in her office, the local builders in the area, consultation with

her father wh o is a general contractor , and her peers in the area where the

Subject P roperty is located.

2 8 . Respondent testified that she did not intend to mislead anyone when

she transmitted the report. She inadvertently failed to include the fireplace

in the first report, but corrected her mistake when she revised the report.

29 . On or about September 16, 2019, with an effective date of August 23,

2019, Respo ndent submitted the am ended appraisal report for the Subject

P roperty. In that report, Respondent assessed the value of the property at

$390,000 . As she did with the first report, s he signed the second report as the

primary appraiser.

PetitionerÔs Expert

3 0 . PetitionerÔs expert , Joel Salley, a State Certified Residential

Appraiser, reviewed RespondentÔs rep ort to determine compliance with

USPAP rules . Mr. Salley was critical of Respondent Ôs performanc e in

appraising the property and her reports. He was critical of RespondentÔs

omission of the fireplace from her first report . He credibly testified that the

om ission of the fireplace impacted the assessed value of the property.

Mr. Salley also credibly testified that RespondentÔs work file included a

description compliant with a Q3 quality rating for comparable property No. 4.

He further testified that the alleg ed lack of inspection resulted in omission of

other things, which will not be addressed as a violation in this matter, as

they were not alleged in the Administrative Complaint. 1

RespondentÔs T estimony

3 1 . Respondent asserted that she did not intend to mi slead the Intended

User by using MLS photographs of the comparable sale, the Intended User

never complained about RespondentÔs use of MLS photographs , and the use of

MLS photographs had no overall e ffect on the credibility of the appraisal

report.

3 2 . Re spondent testified that she signed both appraisal reports as the

primary appraiser to demonstrate that she was accepting full responsibility

for the appraisal reports. S he also indicated in both of her reports that her

appraiser trainee provided significan t assistance with the appraisal. She

asserted that w hen more than one appraiser is involved in an assignment,

USPAP allows for only one appraiser to sign the certification as long as it is

disclosed that another appraiser provided significant assistance an d the

1 The allegations of fact set forth in the Administrative Complaint are the grounds upon

which this proceeding is predicated. Trevisani v. DepÔt of Health , 908 So. 2d 1108, 1109 (Fla.

1st DCA 2005); see also Cottrill v. DepÔt of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

Thus, the scope of this proceeding is restricted to those matters as framed by Petitioner.

M.H. v. DepÔt of Child. & Fam. Servs. , 977 So. 2d 755, 763 (Fla. 2d DCA 2008).

nature of the assistance . The undersigned does not find RespondentÔs

explanation for signing the appraisal reports as the appraiser instead of the

supervisory appraisal persuasive. The undersigned finds that the competent

substantial evidence demonst rates that she signed both appraisal reports as

the appraiser when she actually served as the supervising appraiser.

3 3 . Although t he Intended User was aware of the errors made regarding

the appraisal assignment, it did not file the complaint against R espondent

and Value Link continues to retain Respondent to perform appraisals.

Ultimate Findings of Fact

3 4 . The undersigned finds that there is no clear and convincing evidence

that Respondent did not inspect the property as the term is used under the

USPAP rules, which govern s appraisers.

3 5 . Respondent included a description and support in her work file to

support the Q3 quality construction rating for comparable property No. 4.

3 6 . Respondent failed to identify a fireplace in the Subject Property i n the

first appraisal report , but corrected her error in the second report.

3 7 . The c ompetent substantial evidence demonstrated that Respondent

was reasonably diligent in her preparation of the appraisal reports to meet

the needs of the Intended User. Whi le there may have been errors in the

initial report, the competent substantial evidence demonstrates that

Respondent exercise d reasonable diligence in preparing the appraisal reports

to meet the needs of the Intended User.

C ONCLUSIONS OF L AW

3 8 . The Divis ion of Administrative Hearings has jurisdiction over the subject

matter of this proceeding and of the parties thereto pursuant to sections 120.569

and 12 0.57(1).

39 . The Department has authority to investigate and file administrative

complaints charging vi olation s of the laws governing real estate appraisers .

§ 4 75.624 , Fla. Stat.

4 0 . Petitioner seeks to take disciplinary action against the appraiser license of

Respondent. A proceeding to impose discipline against a professional license is

penal in nature, and Petitioner bears the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence. Dep't of Banking &

Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987).

4 1 . Cle ar and convincing evidence Ñrequires more proof than a Ópreponderance of

the evidenceÔ but less than Óbeyond and to the exclusion of a reasonable doubt.ÔÒ In

re Graziano , 696 So. 2d 744, 753 (Fla. 1997). As stated by the Supreme Court of

Florida, the clear and convincing evidence level of proof:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

explicit and the witn esses must be lacking in

confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind

of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson , 913 So. 2d 579, 590

(Fla. 2005). ÑAlthough this standard of proof may be met where the evidence is in

conflict, it seems to preclude evidence that is ambiguous.Ò Westinghouse Electric

Corp. v. Shuler Bros. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

4 2 . Disciplinary statutes must be construed in terms of their literal

meaning and words used by the Legislature may not be expanded to broaden

the application of such statutes. Thus, the provisions of law upon which this

disciplinary action has been brought must be strictly construed, with any

ambiguity construed in favor of the party against whom the penalty would be

imposed . Munich v. DepÔt of Bus. & ProfÔl Reg. , 592 So. 2d 1136, 1143 (Fla. 1st

DCA 1992); see also Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d

929, 931 (Fla. 1st DCA 2011); Beckett v. DepÔt of Fin. Servs. , 982 So. 2d 94,

100 (Fla. 1st DCA 2008); Whitak er v. DepÔt of Ins. , 680 So. 2d 528, 531 (Fla.

1st DCA 1996); Dyer v. DepÔt of Ins. & Treas . , 585 So. 2d 1009, 1013 (Fla. 1st

DCA 1991).

Alleged Violations

4 3 . At the time the allegations in this matter arose, s ection 475.624

provide d in relevant part:

Di scipline of appraisers. Ð The board may deny an

application for registration or certification of an

appraiser; may investigate the actions of any

appraiser registered, licensed, or certified under

this part; may reprimand or impose an

administrative fine not to exceed $5,000 for each

count or separate offense against any such

appraiser; and may revoke or suspend, for a period

not to exceed 10 years, the registration, license, or

certification of any such appraiser, or place any

such appraiser on probation, if the board finds that

the registered trainee, licensee, or certificateholder:

* * *

(4) Has violated any provision of this part or any

lawful order or rule issued under this part or

chapter 455 .

* * *

(15) Has failed or refused to exercise reasonable

diligence in developing an appraisal or preparing

an appraisal report.

4 4 . At the time t he allegations in this matter arose, s ection 455.227

provide d in pertinent part:

(1) The following acts shall constitute grounds for

which the disciplinary actions specified in

subsection (2) may be taken:

* * *

(m) Making deceptive, untrue, or fraudulent

representations in or related to the practice of a

profession or employing a trick or scheme in or

related to the practice of a profession.

4 5 . At the time the allegations in this matter arose , r ule 61J1 - 9.001

provide d : Ñ All registered, licensed, or cert ified appraisers shall comply with

the 2018 - 2019 Uniform Standards of Professional Appraisal Practice

(USPAP), effective January 1, 2018, which is incorporated by reference. Ò

4 6 . The alleged violations of USPAP provisions at issue here are listed

below b ased on their listing in the Administrative Complaint as follows:

a. USPAP Record Keeping Rule provides in

pertinent part: [t]he workfile must include: all

other data, information, and documentation

necessary to support the appraiserÔs opinions and

conclus ions and to show compliance with USPAP,

or references to the location(s) of suchÈdata,

information, and documentation. An appraiser who

willfully or knowingly fails to comply with the

obligations of the Record Keeping Rule is in

violation of the Ethics Rul e.

b . USPAP Ethics Rule provides in pertinent part:

[a]n appraiser must not advocate the cause or

interest of any party or issue; must not

communicate assignment results with the intent to

mislead or defraud; must not use or communicate a

report or assig nment results known by the

appraiser to be misleading or fraudulent; must not

willfully or knowingly violate the requirements of

the Record Keeping Rule; and must not perform an

assignment in a grossly negligent manner.

c . USPAP Scope of Work Rule provid es in pertinent

part: [f]or each appraisal È, an appraiser must

identify the problem to be solved; determine and

perform the scope of work necessary to develop a

credible assignment results; disclose the scope of

work in the report. Appraisers have broad

f lexibility and significant responsibility in

determining the appropriate scope of work for an

appraisalÈ. Credible assignment results require

support by relevant evidence and logic. The

credibility of the results is always measured in the

context of the in tended user.

d. USPAP Standard Rule 1 - 2(e)(i) provides: [i]n

developing a real property appraisal, an appraiser

must: Identify the characteristics of the property

that are relevant to the type and definition of value

and intended use of the appraisal incl uding: its

location and physical, legal, and economic

attributes .

e. USPAP Standard Rule 1 - 4(a) provides: [w]hen a

sales comparison approach is necessary for a

credible assignment results, an appraiser must

analyze such comparable sales data as are

availa ble to indicate a value conclusion.

f. USPAP Standard Rule 2 - 1(a) provides: [e]ach

written or written appraisal report must: clearly

and accurately set forth the appraisal in a manner

that will not be misleading.

4 7 . T he three - count Administrative Compl aint alleged Respondent

violated the following: 1) a violation of section 475.624(4), by failing to comply

with r ule 61J1 - 9.001, by failing to comply with the USPAP rules; 2 ) a

violation of section 455.227(1)(m); and 3) a violation of section 475.624(15) .

4 8 . As to Count One, Petitioner alleged Respondent violated section

4 75.624 ( 4 ) , by failing to comply with r ule 61J1 - 9.001, by failing to comply

with the USPAP rules.

49. R egarding the USPAP Record Keeping Rule, Petitioner conceded in itÔs

PRO that ther e was no evidence to prove by clear and convincing evidence

that Respondent violated USPAP Rule 1 - 4(a) or the USPAP Record Keeping

Rule. In addition, the record establishes sufficient evidence that Respondent

complied with this rule.

50 . Regard ing the US PAP Ethics Rule, one of the issues raised was

related to the photos used for the comparative properties . T he engagement

agreement indicated that Respondent , as the appraiser , was permitted to use

MLS photos with an included comment. However, Respondent did not include

a comment regarding the use of MLS photos for the comparable properties.

Petitioner must prove that RespondentÔs failure to make the disclosure of the

origin of the photos was considered intentional ly and knowing ly

communicating a report that was misleading. The evidence clearly

establishes that Respondent examined photographs of the comparable

properties. However, u pon examination of the report in the comments about

the Subject Property, including the comparative properties, Respondent did

not provide a comment that they were not original photos. It is noted that

Respondent provided an explanation related to her traineeÔs inspection of the

property, but again did not provide information regarding the origin of the

compara ble property photos. By signing the certification, Respondent

attested to the truth of its contents. The only reasonable inference that may

be drawn here is that she knowingly intended to submit the report which was

misleading as to the origin of the comparative property photos. See Walker v.

DepÔt pf Bus. & ProfÔl Reg. , 705 So. 2d 652, 654 (Fla. 5th DCA 1998)

(circumstantial evidence is sufficient to prove an intentional act) . Thus,

Petititioner proved that Respondent violated the USPAP E thics R ule.

51. Regarding the USPAP Sco pe of Work Rule, t he evidence offered at

hearing established that Respondent inadvertently omitted the fireplace

from her initial appraisal report. She then corrected the error when it was

called to her attention. Thus, t here is insufficient clear and conv inc ing

evidence that Respondent violated the Scope of Work Rule.

52. Regarding USPAP Standard Rule 1 - 2(e)(i) , as stated herein,

Respondent did not include the fireplace in the initial appraisal report, which

was relevant to the value of the Subject Prope rty. While Respondent

explained that it was an unintended oversight, Respondent Ô s failure to

include the fireplace led to her initial assessment of $2,000 less than the

value of the property. Respondent corrected her error and adjusted the value.

However, the evidence demonstr a tes that she initially failed to include a

characteristic of the property that was relevant to the propertyÔs value. Thus,

Petitioner proved by clear and convincing evidence that Respondent fail ed to

comply with USPAP Rule 1 - 2(e)(i).

53. Regarding USPAP Standard Rule 1 - 4(a) , Petitioner conceded in its

PRO that there was insufficient evidence to prove by clear and convincing

evidence that Respondent violated USPAP Rule 1 - 4(a) . In addition, the record

establishes sufficient evidence th at Respondent complied with this rule.

54. Regarding USPAP Standard Rule 2 - 1(a) , a t issue is whether

Respondent truthfully certified the type of inspection she performed of the

property. As discussed above, there was insufficient clear and convincing

evid ence she violated r ule 2 - 1(a) by performing a visual inspection of the

property utilizing photograph s , which is permitted under the rule.

55. Based on the foregoing, Petitioner proved Respondent violated section

475.624(4) by failing to comply with r ule 61J1 - 9.001, and by failing to comply

with USPAP R ule 1 - 2(e)(i) and USPAP Ethics Rule .

56. As to Count Two, Respondent inadvertently omitted the fireplace from

the initial report . An honest mistake would not constitute deceptive or

fraudulent representati ons , as Petitioner would need to prove intentional

conduct. The listing of incorrect information in the first report was , however,

untrue . Thus, Petitioner proved by clear and convincing evidence that

Respondent violated section 455.227(1)(m).

57. As to C ount Three, for the reasons discussed in the Findings of Fact

above, the evidence does not support a violation for failure to exercise

reasonable diligence in developing an appraisal or preparing an appraisal

report. While there may have been errors in the initial report, the competent

substantial evidence demonstrates that Respondent exercise d reasonable

diligence in preparing the appraisal reports to meet the needs of the Intended

User. Thus, Petitioner did not prove a violation of section 475.624(15).

P enalty

58 . Respondent is subject to disciplinary action by the Real Estate

Appraisal Board pursuant to section 475.624 .

59 . Section 455.2273(5), Florida Statutes, states that Ñ[t]he administrative

law judge, in recommending penalties in any recommended order, must

follow the penalty guidelines established by the board or department and

must state in writing the mitigating or aggravating circumstances upon

which the recommended penalty is based.Ò

60. Under r ule 61J1 - 8.002 (3) , the following guideline s sh all be used in

disciplinary cases, absent aggravating or mitigating circumstances and

subject to other provisions of that chapter :

(g) Section 475.624(4) , for a first violation,

p robation or revocation and an administrative fine

up to $5,000.

(r) Sectio n 475.624(15), for a first violation, one

year p robation to revocation and an administrative

fine of $1,000.

6 1 . Rule 61J1 - 8.002 (4)(b) provides the following :

(b) Aggravating or mitigating circumstances may

include, but are not limited to, the following:

1. The degree of harm to the consumer or public.

2. The number of counts in the administrative

complaint.

3. The disciplinary history of the licensee.

4. The status of the licensee at the time the offense

was committed.

5. The degree of financial hardshi p incurred by a

licensee as a result of the imposition of a fine or

suspension of the license.

6 2 . The clear, convincing evidence of multiple mitigating circumstances,

with no aggravating circumstances, clearly calls for departing from the high

end of the penalty guidelines that would apply in a normal case without

mitigating circumstances.

6 3 . Under these circumstances, the undersigned has considered the

violations found in two of the three counts , the financial hardship that would

result from imposition of a fine or suspension of license , the fact that

Respondent corrected her mistakes, thus , reducing any harm to the client,

and that Respondent has no prior disciplinary history.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of L aw, it is

R ECOMMENDED that a F inal O rder be entered as follows:

1. Finding Respondent guilty of Counts 1 and 2 of the Administrative

Complaint;

2. Finding Respondent not guilty of Count 3 of the Administrative

Complaint;

3. Imposing a penalty against Re spondentÔs real estate appraisal license

RD 6606 as follows:

a. Placing Respondent on probation for a period of 12 months from the

effective date of the BoardÔs Final Order in this case;

b. Requiring attendance, virtually or in person, at three complet e

Florida Real Estate Appraisal Board meetings within the probationary

period;

c . complet ion of four (4) corrective Continuing Education courses

within six (6) months from the effective date of the BoardÔs Final Order in

this case as follows :

i. Appra iser Self - Protection: Documentation and Record Keeping ;

ii. Report Certifications: What Am I Signing and Why? ;

iii. Residential Report Writing vs. Form Filling ; and

iv. Scope of Work: Appraisals and Inspections .

d . Requiring Respondent to pay sti pulated costs in the amount of $1,000

within the probationary period; and

e . Requir ing Respondent to pay an administrative fine in the amount of

$1,500 within the probationary period.

D ONE A ND E NTERED this 8th day of March , 2021 , in Tallahassee, Leon

Co unty, Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of March , 2021 .

C OPIES F URNISHED :

Mackenzie K. Medich, Esquire Daniel Villazon, Esquire

Department of Business and Daniel Villazon, P.A.

Professional Regulation Suite 535

2601 Blair Stone Road 5728 Major Boulevard

Tallahassee, Florida 32399 Orlando, Florida 32819

Delhon Braaten, Assistant General Counsel Cristy Conolly, Chair

Department of Business and Real Estate Appraisal Board

Professional Regulation Department of Bu siness and

2601 Blair St one Road Professional Regulation

Tallahassee, Florida 32399 400 West Robinson Street, N801

Orlando, Florida 32801

Julie I. Brown, Secretary

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

David Axelman, General Counsel

Office of the General Counsel

Department of Busines s

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptio ns to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.