03-000717PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Sergio A. Becerra Status: Closed Recommended Order on Thursday, July 10, 2003.

Summary: Real estate appraiser`s failure to advise state of current address and to cooperate with investigator warrants license revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, ) Case 03 - 0717PL

)

vs. )

)

SERGIO A. BECERRA, )

)

Respondent. )

______________________________ )

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted before

Florence Snyder Rivas, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings, on April 30,

2003, in Miami, Florida.

APPEARANCES

For Petitioner: Juana Carstarphen Watkins, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Hurston Building, North Tower

400 West Robinson Street, Suite N - 308

Orlando, Florida 32801

For Respondent: Sergio A. Becerra, pro se

665 West 35th Street

Hialeah, Florida 33012

STATEMENT OF THE ISS UES

At issue is whether Respondent committed the viol ations set

forth in the Administrative Complaint dated April 2, 2002, and,

if so, what penalty should be imposed.

PRELIMINARY STATEMEN T

By Administrative Complaint dated April 2, 2002, the

Petitioner, Department of Business and Professional Regulation,

Di vision of Real Estate (Petitioner or DBPR), charged Respondent

Sergio A. Becerra (Respondent or Becerra), with violations of

various provisions of the laws governing the practice of real

estate appraisal in Florida. In particular, it is alleged that

Respo ndent failed to exercise reasonable diligence in the

development or communication of a real estate appraisal dated

February 2, 1996; that Respondent unlawfully obstructed or

hindered Petitioner in the performance of its statutory duties,

including the duty to investigate complaints against licensees;

that Respondent failed to timely notify Petitioner of changes to

his current mailing address; and that Respondent failed to

retain records related to the February 2, 1996, appraisal for

the statutorily required period of time.

The Administrative Complaint contains a typographical error

in Count IV on page 4, where it references Section 475.624(2).

The reference should be to Section 475.624.(1), the section

which was tried by consent, and the Administrative Compl aint is

deemed to be amended nunc pro tunc to April 2, 2002, inasmuch as

the record of the case demonstrates that Respondent was fully

aware of the details of the charges and not prejudiced in his

defense by this typographical error.

Respondent timely re quested a formal hearing.

At the hearing, Petitioner presented the testimony of

Investigative Supervisor Brain Piper, and offered Petitioner’s

Exhibits 1, 2, and 3 into evidence. Respondent testified in his

own behalf and offered Respondent’s Exhibits 1, S (sic), and 4

into evidence.

A transcript of the hearing was filed on June 12, 2003.

The parties were afforded the opportunity to submit proposed

recommended orders. Petitioner did so, and its Proposed

Recommended Order has been considered in the prepa ration of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is a state agency responsible for the

licensing, regulation and discipline of real estate appraisal

licensees in Florida.

2. At all times material to this case, Respondent was a

Florida sta te - certified residential real estate appraiser.

3. Persons holding such licenses are required by law to

assure that the state is apprised of the licensee's physical

address. The purpose of the law is to assure that state

regulators, as well as clients wh o may have issues regarding

appraisals performed by the licensee, are able to contact the

appraiser in a timely manner.

4. At all times material to the charges against him,

Respondent registered with Petitioner the address of 5299 West

28th Avenue, Hialea h Gardens, Florida 33016 as his current

address.

5. On or about February 2, 1996, Respondent developed and

communicated an appraisal report for residential property

located at 28204 Southwest 43 Court, Homestead, Florida 33033

(subject property).

6. On or about August 12, 1999, Petitioner received a

complaint concerning this appraisal.

7. In furtherance of its legal obligation to investigate

such complaints, Petitioner promptly wrote to Respondent at his

registered address. The letter was not returned , and thus a

legal presumption arises that it was received by the person(s)

residing on the premises. That person was Respondent's mother.

8. At the time the letter was sent and received at

Becerra's registered address, Becerra himself was living in

Colo rado.

9. Because Becerra had never notified Petitioner of the

change of address; (there is no evidence as to whether Becerra's

mother did or did not forward or otherwise deal with her son's

mail) the state was thwarted in its efforts to determine the

bo na fides of the complaint.

10. Eventually, Becerra came back into compliance with his

obligation to provide the state with an accurate address. On

January 29, 2002, state investigator Brian Piper (Piper)

arranged to meet Becerra at his new location, 665 West 35th

Street, Hialeah, Florida, a private residence where Becerra

maintained a home office. Becerra knew that the purpose of

Piper's visit was to investigate the 1999 complaint regarding

his appraisal of the subject property in particular, and

Becer ra's appraisal business in general.

11. Under Florida law, real estate appraisers must

maintain a file with all documents pertaining to an appraisal

for at least five years after the date of the issuance of the

appraisal, and for at least two years afte r final disposition of

any judicial proceeding in which testimony concerning the

appraisal was given, whichever period expires last.

12. Thus, by the time Piper met with Becerra regarding the

February 2, 1996 appraisal, Becerra was no longer legally

oblig ated to have documents relating to that appraisal in his

possession.

13. He was, however, required to cooperate with Piper's

investigation. Instead, he was hostile, suspicious, and

secretive in his dealings with Piper.

14. Becerra would have been withi n his rights to say,

unambiguously, that the file concerning this appraisal, or any

1996 appraisal for that matter, had been discarded in the

ordinary course of business sometime after the five - year

statutory record keeping period expired.

15. Becerra did not make such a representation. Instead,

he suggested to Piper that his documents were maintained on a

computer, and/or at another location. As an afterthought, he

raised the possibility that the documents no longer existed.

16. Piper asked, as he was entitled to do, questions

regarding Becerra's practices regarding the development and

maintenance of records concerning appraisals. Becerra refused

to answer.

17. Frustrated in his efforts to determine whether the

complaint regarding the 1996 appraisal w as valid, Piper sought

to exercise on behalf of the state its right to conduct a spot -

audit of Becerra's books and records related to pending

appraisals.

18. Observing what appeared to be appraisal request forms

taped to the wall of the Becerra's office, Piper sought access

to the files concerning these appraisals. Becerra refused to

cooperate and demanded that Piper leave his home/office.

19. Becerra did not then and did not at hearing claim that

Piper had requested information or made demands that he was not

lawfully entitled to request or make. Instead, he contended

that because more than five years had elapsed between the date

of the appraisal and the time the state was able to find Becerra

to ask him to produce the documents, Becerra cannot be

dis ciplined for failing to produce the documents.

20. The evidence established that Piper and DBPR acted at

all times reasonably and in accordance with their legal duty to

investigate specific complaints and to, more generally, monitor

the operations of stat e - licensed appraisers to assure that they

are performing their jobs in accordance with Florida law and the

public interest. The evidence further established that

Becerra's failure to fulfill his statutory duty to keep the

state informed of his whereabouts was the sole reason the state

had been unable to directly inform Becerra of its need to review

the documents, and to conduct appropriate investigations into

the quality of the February 2, 1996, appraisal; and, later, into

the management of his appraisal b usiness at the time of Piper's

visit to Becerra's home office on January 29, 2002.

21. A comparison of the February 2, 1996, appraisal for

the subject property with public records which were available at

the time the appraisal was rendered revealed seve ral

discrepancies.

22. For example, the appraisal reported an incorrect folio

number for the subject property, an error which Becerra admits.

23. In addition, the appraisal contained inaccurate

information regarding the then - owner of the property and t he

square footage of the house. It also omitted reference to a

previous sale, and made no mention of the fact that the subject

property was located in a gated community.

ansactions cited in the appraisal as comparable

sales were not, in fact, compa rable. The appraisal left out the

impacts of Hurricane Andrew upon the property; those impacts

were, at the time of the appraisal, significant.

25. While the evidence is sufficient to establish that the

appraisal was not a model of accuracy and attention to detail,

the absence of Becerra's records, coupled with the fact that

several pages of the appraisal were missing from the (anonymous)

complaint which precipitated the investigation, render it

impossible to determine whether Becerra did, in fact, fail t o

fulfill the minimum standards expected in an appraisal prepared

by a Florida licensee.

26. By the time the state was able to locate Becerra and

conduct its investigation, the statutory period for which

documents pertaining to the appraisal had expired, and it was no

longer possible to determine whether Becerra had fulfilled his

legal duty to maintain the file for five years. Additionally,

it was no longer possible to determine whether there were

credible explanations for the discrepancies and apparent e rrors

in the appraisal of the subject property, or whether he had in

fact performed the appraisal negligently.

27. Becerra unlawfully failed and refused to cooperate

with the state's reasonable inquiry into his current appraisal

cases.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

29. The burden of proof is on the Petitioner to show by

clear and convincing ev idence that the Respondent committed the

acts alleged in the Administrative Complaint and the

reasonableness of any proposed penalty. See Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

30. A real estate appraiser is charged with the knowledge

of the p ortions of Chapter 475, Florida Statutes, which relate

to his professional obligations. Wallen v. Florida Dept. of

Prof. Reg., Div. of Real Estate , 568 So. 2d 975 (Fla. 3rd DCA

1990). In this case, Becerra does not claim to be ignorant of

the law. Rathe r, he asserts that the state cannot base

disciplinary action upon the appraisal of the subject property

because records relating to it no longer exist.

31. The requirement that the evidence against Becerra be

clear and convincing operates in this case to permit Becerra to

benefit from his failure to apprise the state of his

whereabouts. By the time Becerra was located, he was able to

avail himself of the five - year - rule for document retention to

thwart any independent review of the quality of that appraisa l.

32. Clear and convincing evidence has been defined as

credible, precise, explicit evidence, lacking confusion as to

the facts in issue. The evidence must be of such weight that it

produces in the mind of the trial of fact the firm belief or

convictio n, without hesitancy, as to the truth of the

allegations. Evans Packing Co. v. Department of Agric. and

Consumer Servs. , 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989),

citing Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4 th DCA

1983).

33. Having had mont hs to consider his situation, Becerra

came to the hearing with a demeanor that reflected contempt for

the state's regulatory process. His demeanor at hearing, both

under oath and when acting as his own attorney, coupled with the

entire record, rendered th e tribunal skeptical as to whether

Becerra in fact retained the records of the appraisal of the

subject property for five years, and whether he conducted the

appraisal with the diligence expected of state licensees.

However, because those files, and a ful l copy of the appraisal

itself, are not available, it is neither appropriate nor

necessary to make a determination as to whether discipline

should be imposed for failure to fulfill minimum professional

standards in the preparation of that appraisal. Neith er can it

be determined with the degree of certainty the law requires that

Becerra in fact failed to retain the records of this appraisal

for the requisite five years.

34. There is, however, clear and convincing evidence that

Becerra failed to fulfill h is obligation to keep the state

apprised of his whereabouts, and that he hindered the state's

investigation into his professional activities on January 29,

2002.

35. The charges proved in this case are serious. It is a

privilege, not a right, to hold a r eal estate appraisal license.

Licensees have a legal obligation to cooperate with state

officials whose job it is to provide oversight to regulated

professions. Becerra's failure to keep the state apprised of

his whereabouts prevented the state from bein g able to timely

investigate alleged violations of Section 475.624(14) and (15),

Florida Statutes, governing minimum standards for real estate

appraisals, as well as alleged violations of the record

retention requirements of Section 475.629, Florida Statut es.

Thus, those charges must be dismissed.

36. There is, however, clear and convincing evidence that

Becerra failed to comply with his obligation to accurately

register his office location with the state, in violation of

Section 475.623, Florida Statut es, and actively hindered a state

investigator in the performance of his lawful duty in violation

of Section 425.626(1)(f), Florida Statutes . The latter offense,

in particular, is one for which the state is authorized pursuant

to Section 475.624(1), Flori da Statutes, to and usually does

impose the harshest discipline possible, revocation.

37. Becerra has done nothing to show that he has learned

from this disciplinary action. Rather, the record as a whole

compels the conclusion that he is completely unint erested in

cooperating with reasonable state laws governing the practice of

his profession.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law it is RECOMMENDED that a Final Order be entered finding

Respondent guilty of violat ing Section 475.624(1), Florida

Statutes, by reason of his violations of Sections 475.623 and

425.626(1)(f), Florida Statutes, imposing a fine of $5,000 and

permanently revoking respondent's real estate appraisal license.

DONE AND ENTERED this 10th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 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 10th day of July, 2003.

COPIES FURNISHED :

Sergio A. Becerra

665 West 35th Street

Hialeah, Florida 33012

Juan a Carstarphen Watkins, Esquire

Department of Business and

Professional Regulation

Hurston Building, North Tower, Suite N308

400 West Robinson Street

Orlando, Florida 32801

Frank Gregoire, Chairman

Real Estate Appraisal Board

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802 - 1900

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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.