05-001651PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Omari Murray Status: Closed Recommended Order on Tuesday, August 30, 2005.

Summary: Respondent may not accept payment for and prepare appraisals without the consent and supervision of the registered appraiser for whom he is to work.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1651PL

)

OMARI MURRAY, )

)

Respondent. )

_________________________________)

RECOMMENDED OR DER

Pursuant to notice a formal hearing was held in this case

on July 14, 2005, in West Palm Beach, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Alpheus C. Pa rsons, Esquire

Senior Attorney

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orlando , Florida 32801

For Respondent: Omari Murray, pro se

201 Southwest Eleventh Avenue

Boynton Beach, Florida 33435

STATEMENT OF THE ISSUE

Whether the Respondent, Omari Murray, committed the

violations alleged in the Ad ministrative Complaint and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

On September 21, 2004, the Petitioner, Department of

Business and Professional Regulation, Division of Real Estate

(Department or Petitioner), filed an Administrative Complaint

against the Respondent, Omari Murray (Respondent). The

Complaint alleged that the Respondent had violated six

provisions of the real estate license laws in connection with

an appraisal report for an individual named Cesar. More

specifically, t he Complaint alleged that the Respondent was

guilty of fraud, misrepresentation, concealment, false

promises, false pretenses, dishonest conduct, culpable

negligence, or breach of trust in any business transaction in

violation of Section 475.624(2), Florid a Statutes (2004); that

the Respondent had violated the standards for the development

or communication of a real estate appraisal (the ethics rules)

in violation of Section 475.624(14), Florida Statutes (2004);

that the Respondent had obstructed or hindere d the enforcement

of Chapter 475, Florida Statutes, by failing to respond to an

authorized representative of the Petitioner in violation of

Section 475.626(1)(f), Florida Statutes (2004); that the

Respondent had received payment directly from the recipient of

an appraisal report in violation of Section 475.6221(3),

Florida Statutes (2004); that the Respondent had failed to

communicate an appraisal without good cause in violation of

Section 475.624(16), Florida Statutes (2004); and that the

Respondent had fa iled to comply with the disclosure and

display requirements in violation of Section 475.624(4)(e),

Florida Statutes (2004). The Respondent filed an Election of

Rights disputing the allegations.

The case was referred to the Division of Administrative

Hear ings for formal proceedings on May 9, 2005, and was

promptly scheduled for hearing. A Notice of Hearing was

entered on May 19, 2005, and was mailed to the Respondent at

his address of record. The hearing was scheduled for West

Palm Beach, Florida.

In ad dition to the Notice of Hearing, an Order of Pre -

Hearing Instructions was provided to the parties. Such order

contemplated that the parties would confer prior to the

hearing to discuss the case, explore settlement possibilities,

and disclose witnesses and exhibits to be offered at trial.

The Petitioner filed a Response to Order of Pre - hearing

Instructions on June 27, 2005. The Respondent filed a letter

on July 13, 2005, seeking a continuance in order to retain an

attorney. That motion was denied.

At th e hearing, the Respondent renewed his motion for a

continuance and alleged that he needed additional time to

retain an attorney to represent him in the matter. The

Respondent alleged that he had spoken with an attorney

(unnamed in the record) but was unab le to reach an agreement

regarding representation because he was “not a hundred percent

comfortable with the attorney.” Prior to the taking of

evidence, the Respondent was afforded a second opportunity (in

addition to the procedures granted in the Order o f Pre - hearing

Instructions) to review the evidence to be presented in the

matter. The Respondent was advised that the burden of proof

in the case was with the Petitioner and that he would be

entitled to cross - examine any and all witnesses called by the

De partment. A recess was provided to give the Respondent

sufficient time to review the documents the Petitioner

intended to offer into evidence.

Despite the foregoing, the Respondent continued to

maintain he required a continuance and could not proceed

with out counsel. The Respondent was advised that his

objection to the proceedings and renewed Motion for

Continuance were denied. After the Respondent was advised

that his request was denied he announced he would not

participate in the proceedings. In fact, the Respondent

refused to participate without counsel. The Respondent was

advised that proceedings would continue with or without his

participation and he was encouraged to participate. When

questions were posed to the Respondent, he stated, “I’m not

an swering any questions or participating in the hearing. I’m

just listening. I’ll seek counsel after the hearing is over

and I’ll see if I can appeal.” Thereafter, if the Respondent

answered by shaking his head (an inaudible response) his

response

was no ted for the record. Eventually, the Respondent left the

hearing room and did not return.

The Petitioner called the following witnesses: Michael

Slade, a real estate appraiser and consultant with the firm of

Callaway & Price; Harvel Gray, a real estate ap praiser;

Kenneth Drummond, a real estate appraiser; Mona Cesar, the

owner of a vacant lot located at 4229 Southwest Jarmer Road,

in Port St. Lucie, Florida; and Jonathan Platt, an

investigator employed by the Petitioner. The Petitioner’s

Exhibits numbered 1 - 11 were admitted into evidence.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on July 29, 2005.

Thereafter, the Petitioner filed a Proposed Recommended Order

that has been considered in the preparation of this order. A

letter addressed to the Petitioner’s counsel filed by Timothy

A. Smith (an attorney retained to represent the Respondent

subsequent to the hearing) has not been considered a request

for relief of any type. Thus the Objection to Motion to

Extend Time filed by the Petitioner has been deemed premature.

FINDINGS OF FACT

1. At all times material to the allegations of this

case, the Petitioner was the state agency charged with the

responsibility to administer and enforce the real estate

licensing laws found in Chapter 475, Florida Statutes (2004).

2. At all times material to the allegations of this

case, the Respondent was a registered trainee appraiser who

was subject to the provisions of Chapter 475, Florida Statutes

(2004). As an appraiser trainee , the Respondent was required

to perform appraisal services through a fully registered real

estate appraiser licensed pursuant to Florida law.

3. On or about December 21, 2002, Ms. Cesar paid the

Respondent $550.00 to perform an appraisal for her vacant lot

located at 4229 Southwest Jarmer Road, Port St. Lucie,

Florida. Ms. Cesar paid the Respondent by check drawn on her

personal bank account. The check was payable to the

Respondent individually. The check was negotiated and the

account was debited in the full amount of the check. At the

time she tendered the check to the Respondent Ms. Cesar was

under the impression that the Respondent was an appraiser who

could lawfully perform the appraisal sought.

4. The Respondent did not advise Ms. Cesar that he was

only a trainee appraiser and that his supervisor would have to

sign any appraisal report generated in connection with the

Cesar property.

5. Additionally, at that time, the Respondent’s

supervising appraiser, Harvel Gray, was not aware of the

appra isal assignment from Ms. Cesar, did not authorize the

Respondent to accept the job, and did not authorize the

Respondent to accept payment for the appraisal in his

individual name. The funds for the Cesar appraisal were not

forwarded to Mr. Gray.

6. When Ms. Cesar asked the Respondent for the appraisal

she had paid for, the Respondent told her it was illegal for

him to give her a copy of the appraisal. She did not

understand why she had paid $550.00 and was not provided with

a copy of the appraisal.

7. Ms. Cesar had planned to build a house on the vacant

lot. She believed the Respondent could facilitate that

project as he represented to her that he could get plans

drawn, perform the appraisal, and help her through the entire

process. In total Ms. Cesar paid the Respondent over $2000.00

to further the construction of the house.

8. On or about July 7, 2003, an authorized

representative of the Department, Jonathan Platt, contacted

the Respondent and requested that the Respondent provide a

copy of the appr aisal performed for Ms. Cesar.

9. On or about August 11, 2003, the Respondent produced

a “comparative market analysis” report (the report) dated

December 27, 2002, for the subject property (Ms. Cesar’s

vacant lot).

10. The report was on a Uniform Residen tial Appraisal

Report form and identified the Respondent as the appraiser.

Additionally, the form noted the Respondent’s license number

as 0005168. The report did not indicate that the report had

been reviewed or approved by a licensed appraiser.

11. Th e report claimed the analysis was both “as is” and

subject to the completion of work as specified in plans and

specifications. There were no plans or specifications

attached or included with the report.

12. The report was not signed by a licensed real estate

appraiser.

13. After review of the report, Mr. Platt asked the

Respondent for the work file that supported the appraisal

report. Requests for the work file were made on August 12,

2003, September 30, 2003, and October 1, 2003. As of the time

of hearing the Respondent had not made such file available to

the Department.

14. Harvel Gray is a licensed real estate appraiser.

Mr. Gray appraises real estate and equipment and knows the

Respondent. Mr. Gray met the Respondent when he applied to

become a trainee appraiser about five years ago. For

approximately three or four months Mr. Gray was technically

the Respondent’s supervisor but performed no appraisals with

the Respondent. In fact, Mr. Gray terminated his relationship

with the Respondent befo re any appraisals could be performed.

Mr. Gray did not know anything about the appraisal that was to

be performed for Ms. Cesar.

15. Ken Drummond is also a licensed real estate

appraiser. Mr. Drummond knows the Respondent from a Gold

Coast continuing ed ucation class. Mr. Drummond has never been

the Respondent’s

supervising appraiser. Mr. Drummond has not performed

appraisals with the Respondent.

16. According to licensing records, the only supervising

appraiser with whom the Respondent was listed du ring the

pertinent period of time as an appraiser trainee was Mr. Gray.

17. Neither Gray nor Drummond authorized the Respondent

to perform an appraisal or complete the report for Ms. Cesar.

18. Neither Gray nor Drummond authorized the Respondent

to accep t payment from Ms. Cesar for any work.

19. Jonathan Platt, the investigator assigned to this

case, spoke with the Respondent and exchanged written

information with him. The Respondent did not provide

information requested by Mr. Platt and did not explain how the

report was generated. According to Mr. Platt the Respondent

maintained that Mr. Drummond was his supervising appraiser

during the time the Cesar report was performed.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdictio n over the parties to and the subject matter of

these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

(2004).

21. The Petitioner bears the burden of proof in this

matter. The Petitioner must establish by clear and convincing

evidence the allegations a gainst the Respondent. Ferris v.

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

22. Clear and convincing evidence “requires more proof

than a ‘preponderance of the evidence’ but less than ‘beyond

and to the exclusion of a reasonable doubt.’” In re Graziano ,

696 So. 2d 744 (Fla. 1997). In this case, the witnesses

presented testimony that was precise, explicit, and unclouded.

The evidence is of such weight that the findings reached

herein have been established without hesitancy or uncertainty.

Accordingly, it i s concluded the Petitioner has met the burden

of proof required to establish the allegations against this

Respondent. See In re Davey , 645 So. 2d 398 (Fla. 1994).

Additionally, it is concluded the allegations are fully

supported by the record in this cas e.

23. Section 475.624, Florida Statutes (2004), provides,

in pertinent part:

The board may deny an application for

registration, licensure, or certification;

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 appr aiser, or

place any such appraiser on probation, if

it finds that the registered trainee,

licensee, or certificateholder:

* * *

(2) Has been guilty of fraud,

misrepresentation, concealment, false

promises, false pretenses, dishonest

conduct, culpable ne gligence, or breach of

trust in any business transaction in this

state or any other state, nation, or

territory; has violated a duty imposed upon

her or him by law or by the terms of a

contract, whether written, oral, express,

or implied, in an appraisal a ssignment; has

aided, assisted, or conspired with any

other person engaged in any such misconduct

and in furtherance thereof; or has formed

an intent, design, or scheme to engage in

such misconduct and committed an overt act

in furtherance of such intent, design, or

scheme. It is immaterial to the guilt of

the registered trainee, licensee, or

certificateholder that the victim or

intended victim of the misconduct has

sustained no damage or loss; that the

damage or loss has been settled and paid

after discov ery of the misconduct; or that

such victim or intended victim was a

customer or a person in confidential

relation with the registered trainee,

licensee, or certificateholder, or was an

identified member of the general public.

* * *

(4) Has violated any of the provisions of

this section or any lawful order or rule

issued under the provisions of this section

or chapter 455.

* * *

(14) Has violated any standard for the

development or communication of a real

estate appraisal or other provision of the

Unif orm Standards of Professional Appraisal

Practice.

* * *

(16) Has failed to communicate an

appraisal without good cause.

24. Section 475.626, Florida Statutes (2004), provides,

in part:

(1) VIOLATIONS. --

(a) No person shall operate or attempt to

ope rate as a registered trainee appraiser

or licensed or certified appraiser without

being the holder of a valid and current

registration, license, or certification.

* * *

(c) No person shall commit any conduct or

practice set forth in s. 475.624 .

* * *

(f ) No person shall obstruct or hinder in

any manner the enforcement of this section

or the performance of any lawful duty by

any person acting under the authority of

this section, or interfere with,

intimidate, or offer any bribe to any

member of the board or any of its employees

or any person who is, or is expected to be,

a witness in any investigation or

proceeding relating to a violation of this

section.

25. Section 475.6221, Florida Statutes (2004), provides:

(1) A registered trainee real estate

appr aiser must perform appraisal services

under the direct supervision of a licensed

or certified appraiser who is designated as

the primary supervisory appraiser. The

primary supervisory appraiser may also

designate additional licensed or certified

appraiser s as secondary supervisory

appraisers. A secondary supervisory

appraiser must be affiliated with the same

firm or business as the primary supervisory

appraiser and the primary or secondary

supervisory appraiser must have the same

business address as the r egistered trainee

real estate appraiser. The primary

supervisory appraiser must notify the

Division of Real Estate of the name and

address of any primary and secondary

supervisory appraiser for whom the

registered trainee will perform appraisal

services, and must also notify the division

within 10 days after terminating such

relationship. Termination of the

relationship with a primary supervisory

appraiser automatically terminates the

relationship with the secondary supervisory

appraiser.

(2) A registere d trainee real estate

appraiser may only receive compensation

through or from the primary supervisory

appraiser.

26. Florida Administrative Code Rule 61J1 - 8.002 sets

forth the disciplinary guidelines applicable to this case.

The rule provides, in pertin ent part:

(1) Pursuant to Section 455.2273, F.S.,

the Florida Real Estate Appraisal Board

sets forth below a range of disciplinary

guidelines from which disciplinary

penalties will be imposed upon licensees

guilty of violating Chapter 455 or Part II,

Chap ter 475, F.S. (For purposes of this

rule, the term licensee shall refer to

registrants, license holders or certificate

holders.) The purpose of the disciplinary

guidelines is to give notice to licensees

of the range of penalties which normally

will be im posed for each count during a

formal or an informal hearing. For

purposes of this rule, the order of

penalties, ranging from lowest to highest,

is: reprimand, fine, probation, suspension,

and revocation or denial. Pursuant to

Section 475.624, F.S., combi nations of

these penalties are permissible by law.

Nothing in this rule shall preclude any

discipline imposed upon a licensee pursuant

to a stipulation or settlement agreement,

nor shall the ranges of penalties set forth

in this rule preclude the probable cause

panel from issuing a letter of guidance

upon a finding of probable cause, where

appropriate.

(2) As provided in Section 475.624, F.S.,

the Florida Real Estate Appraisal Board

may, in addition to other disciplinary

penalties, place a licensee on pr obation.

The placement of the licensee on probation

shall be for such a period of time and

subject to such conditions as the Board may

specify. Standard probationary conditions

may include, but are not limited to,

requiring the licensee: to attend pre -

li censure courses; to satisfactorily

complete a pre - licensure course; to attend

and satisfactorily complete continuing

education courses; to submit to

reexamination through the state -

administered examination, which must be

successfully completed; to be subje ct to

periodic inspections and interviews by an

investigator of the Department of Business

and Professional Regulation.

(3) The penalties are as listed unless

aggravating or mitigating circumstances

apply pursuant to subsection (4):

* * *

(e) Secti on 475.624(2), F.S.

Guilty of fraud, misrepresentation,

concealment, false promises, false

pretenses, dishonest dealing by trick,

scheme or device, culpable negligence or

breach of trust. . . In the case of fraud,

misrepresentation and dishonest dealing

d ishonest dealing, the usual action of the

Board shall be to impose a penalty of

revocation.

In the case of concealment, false promises

and false pretenses, the usual action of

the Board shall be to impose a penalty of a

3 to 5 year suspension and an

admin istrative fine of $1000.00.

In the case of culpable negligence and

breach of trust, the usual action of the

Board shall be to impose a penalty from a

$1000 fine to a 1 year suspension.

* * *

(g) Section 475.624(4), F.S. Violated any

of the provisions o f this section or any

lawful order or rule issued under the

provision of this section or Chapter 455,

F.S. . . . The usual action of the Board

shall be to impose a penalty up to

revocation and an administrative fine up to

$5,000.

* * *

(q) Section 475. 624(14), F.S. Has

violated any standard for the development

or communication of a real estate appraisal

or other provision of the Uniform Standards

of Professional Appraisal Practice...The

usual action of the Board shall be to

impose a penalty from a 5 ye ar suspension

to revocation and an administrative fine of

$1000.

27. It is concluded that the Respondent is not and was

not at any time material to this case, a licensed real estate

appraiser. At all times material to this case he was a

trainee and was only authorized to perform appraisal services

in conjunction with his registered supervising appraiser. The

Respondent accepted payment for, but did not deliver to, the

client, Ms. Cesar, an appraisal for her property. Ms. Cesar

paid for the appraisal be lieving the Respondent to be an

appraiser and she expected the Respondent to deliver a valid

appraisal for her vacant lot. Not only did the Respondent not

deliver the appraisal, he was unable to support the report he

prepared when the Petitioner investiga ted this matter.

Moreover, no licensed appraiser (neither the appraiser of

record for the Respondent nor the one identified by the

Respondent as his supervisor) acknowledged that the report was

performed under the authority of their licenses.

28. It is concluded the Respondent is guilty of

misrepresentation. The Respondent misrepresented himself to

Ms. Cesar and accepted payment for an appraisal he could not

and did not prepare in accordance with applicable laws.

Further, the Respondent is guilty of v iolating the standards

for the development or communication of a real estate

appraisal in that he did not have authority to prepare an

appraisal and did not comply with real estate standards in

preparing the report. Finally, the Respondent failed to

coope rate with the investigation of this matter, did not

provide information to the Department’s representative, and

did not truthfully respond to inquiries made by the

Petitioner. For example, Mr. Drummond never supervised the

Respondent. The collective acti vities of the Respondent

demonstrate he is not trust worthy to perform real estate

appraisals.

29. Florida Administrative Code Rule 28 - 106.210

provides:

The presiding officer may grant a

continuance of a hearing for good cause

shown. Except in cases of emergency,

requests for continuance must be made at

least five days prior to the date noticed

for the hearing.

30. In this case the Respondent filed an untimely

request for a continuance. Respondent maintained he needed

additional time to obtain the ser vices of an attorney. It is

concluded that the Respondent proffered no credible

explanation for why he was unable to obtain an attorney prior

to the hearing. The investigation of this case began long

before the Administrative Complaint was forwarded to t he

Division of Administrative Hearings. It is concluded the

Respondent had sufficient time to obtain the services of an

attorney prior to hearing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Real Estate, enter a

Final Order that finds the Respondent guilty of the violations

outlined by the Administrative Complaint and revokes his

license as a real estate appraiser trainee.

DONE AN D ENTERED this 30th day of August, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

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 30th day of August 2005.

COPIES FURNISHED:

Elizabeth Vieira, Director

Division of Real Esta te

400 West Robinson Street

Suite 802 North

Orlando, Florida 32801

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Alpheus C. Parsons, Esq uire

Department of Business and

Professional Regulation

Hurston Building, North Tower, Suite N801

400 West Robinson Street

Orlando, Florida 32801

Omari Murray

201 Southwest 11th Avenue

Boynton Beach, Florida 33435

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.