06-003387PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Victor Harrison Status: Closed Recommended Order on Wednesday, May 30, 2007.

Summary: The proof was insufficient to show that Respondent violated the statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Cas e No. 0 6 - 3387 PL

)

VICTOR HARRISON, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on March 20 , 200 7 , a formal hearing

was held in this case . The authority for conducting the hearing

is set forth in Section s 120.569 and 120.57(1), Florida Statutes

(2006). The hearing was con ducted by video - teleconference

between sites in Pensacola, Florida , and Tallahassee , Florida .

The hearing was held by Charles C. Adams, Administrative Law

Judge .

APPEARANCES

For Petitioner: Racquel White , Esquire

Departmen t of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N 801

Orlando , Florida 32 801

For Responde nt: Thomas M. Brady, Esquire

3250 Navy Boulevard, Suite 204

Post Office Box 12584

Pensacola , Florida 32 591 - 2584

STATEMENT OF THE ISSUE

Should the Florida Real Estate Appraisal Board ( the B oa rd)

take action a gainst Respondent , a licensed real estate appraiser

(appraiser) , for violations set forth in Chapter 475, Part II,

Florida Statutes (1995) ?

PRELIMINARY STATEMENT

On August 6, 200 3 , the Board in Florida Department of

Business and Pr ofessional Regulation, Division of Real Estate,

Petitioner, vs. Victor Harrison, Respondent , FDBPR Case

No. 200 180524 , cha r ge d Respondent with violations of Chapter 475,

Part II, Florida Statutes (1995), in his capacity as an

appraiser. The A dministrative C omplaint dealt with an appraisal

report allegedly developed and communicated on January 9, 1997,

for property known as 693 Broad Street, Pensacola, Florida . The

exact details of the Allegations of Material Fact are discussed

in the Conclusions of Law. Based upon the alleged fac ts, the

Board in five separate co unts accuses Respondent of violating

Chapter 475, Part II, Florida Statutes (1995), and Standards

Rules with the Uniform Standards of Professional Appraisal

Practice (1997), commonly known as USPAP . T hose counts to the

Administrative Complaint are explained in the Conclusions of Law.

On December 10, 2003, the Division of Real Estate legal

department received Respondent 's response to the Administrative

Complaint detailing his position concerning fact ual allegations

and denying any violation of law alleged in C ounts I through V to

the Administrative Complaint . Petitioner treated this as a

request for formal proceeding pursuant to Section s 120.569 and

120.57(1), Florida Statutes (2003 ).

On Septe mber 11, 2006 , the Division of Administrative

Hearings (DOAH) in the person of Robert Cohen, Director and Chief

Judge , received the request for formal hearing, together with a

copy of the Administrative Complaint and Respondent 's letter

requesting hearing. The case was assigned to the present

administrative law judge as DOAH Case No. 06 - 3387PL.

On September 19, 2006, Respondent filed a motion to dismiss

the Administrative Complaint for failure to state a claim. On

September 20, 2006 , Petitioner filed a motion to strike

Respondent 's m otion to d ismiss. On September 25, 2006 , an order

was entered denying the m otion to d ismiss.

On November 13, 2006 , Respondent filed his Objection to

Notice of Hearing by Video Conference and Motion for Continuanc e

and Consolidation With DOAH Case No. 06 - 3389PL. On t hat same

date , a Joint Motion to Continue was filed. On November 13,

2006 , a n order was entered denying the objection to proceed with

a video - teleconference hearing and continuing the case to be

heard on January 29, 2007. The request to consolidate was

granted to the extent that the present case and DOAH Case

No. 06 - 3389PL would proceed to hearing on the same date and time

upon a common record where appropriate.

On January 12, 2007 , Respondent filed a M otion for

C ontinuance, A lternatively Respondent 's Attorney's Motion to

Withdraw . On January 29, 2 007 , an order was entered granting the

continuance and rescheduling the hearing to be heard on March 20,

2007 . Respondent 's counsel remained as cou nsel.

On January 17, 2007 , Respondent filed "Respondent's Notice

of Filing His Fla. Stat. 57.105 Motion to Dismiss Counts I

through V of the Administrative Complaint . " On January 5, 2007 ,

Petitioner had filed a response to the pending motion to dismiss.

On January 22, 2007 , an order was entered denying the motion to

dismiss.

On March 12, 2007 , Respondent filed an A mended A nswer and

Affirmative Defenses to the Administrative Complaint .

On March 13, 2007, Respondent 's Motion to Compel Discovery

was filed. On March 14, 2007 , Petitioner filed a Response to

Respondent 's Motion to Compel. On March 15, 2007 , Respondent

filed a Reply to Petitioner 's Response to Respondent 's Motion to

Compel Discovery and a Motion to Continue. At hearing,

Respondent ' s Motion to Compel Production and Motion to Continue

were denied as explained in the hearing transcript.

On April 23, 2007 , Respondent filed a Motion for Leave to

File Supplement to his Recommended Order . On April 24, 2007 ,

Respondent filed an amendmen t to the motion. The purpose of the

motion was to allow the submission of information concerning a

F inal O rder in the Peyno case, previously referred to as

Respondent 's Reserved Exhibit numbered 33 for identification.

Counse l for the parties were informe d, together with counsel for

Respondent in DOAH Case No. 06 - 3389PL , that the leave to amend

was granted to the extent that a copy of the F inal O rder

represented in Respondent's Exhibit numbered 33 would be received

in the record , as it has been . Th is refe rence in the P reliminary

S tatement confirms that the M otion for L eave to F ile S upplement

is granted.

At hearing , Petitioner called Fred Clanton and Daniel Ryland

as its witnesses. The latter witness , who is a licensed

appraiser , was not allowed to testi f y as an expert for reasons

that are explaine d in the hearing transcript. Petitioner's

Exhibit s numbered 3 through 9 we re admitted into evidence.

Respondent testified in his own behalf and adopted the testimony

of Fred Catchpole , Respondent in DOAH Case No. 06 - 3389PL . The

Respondent's Exhibit numbered 2 , taken from Petitioner 's Exhibit

numbered 2, the I nvestig ative Report, pages 98 through 142;

Respondent's Exhibit numbered 25 , taken from the Catchpole

exhibits; Respondent's Exhibit s numbered 1 through 5 6 taken from

h is pre - hearing exhibits were o ff ered , excluding 3 through 8, 30,

31, 34, 46, 50 and 51 , which were not offered . Respondent's

Exhibit numbered 25 , upon which ruling was reserved , is denied

admission. Respondent's Exhibit s numbered 32 and 33 initially

denied admission a re admitted. All other exhibits offered by

Respondent were admitted at hearing.

Respondent 's Exhibit numbered 56 is Petitioner 's responses

to the Respondent 's first interrogatories in DOAH Case No. 06 -

3387PL .

In compl iance with a prehearing order , the parties entered

into a stipulation of undisputed facts. Those undisputed facts

are set forth in the findings of fact to the Recommended Order .

On April 13, 2007 , a hearing transcript was filed. It only

refers to DOAH Case N o. 06 - 3389PL . It is also in association

with DOAH Case N o. 06 - 3387PL. On April 16, 2007, Respondent

filed a proposed recommended order. On April 23, 2007 ,

Petitioner filed a proposed recommended order. Respondent ' s

proposed recommended order was re - substituted on April 24, 2007 ,

to address a problem with legibility. All w ritten submissions by

the parties have been considered in preparing the Recommended

Order .

Respondent Harrison 's fifth affirmative defense calling for

disposition based upon alleged prejudice occasioned by delay in

the prosecution is denied. 1/

FINDINGS OF FACT

Stipulated Facts :

1 . Respondent is a s tate - l icensed appraiser.

2. On or about January 9, 1997, Respondent , Fred Catchpole,

and Rhonda Guy developed and c ommunicated an appraisal report for

property commonly known as 693 Broad Street, Pensacola, Florida

32819.

3. In developing the s ubject p roperty appraisal report, the

Cost Approach and the Sales Comparison Approach were utilized.

Additional Facts :

4 . Eventually the circumstances concerning the Uniform

Residential Appraisal Report (the Report) at the 693 Broad

Street, Pensacola, Florida , property (the Property) came to

Petitioner 's attention upon a complaint. On February 13, 2001,

the complaint was made. The complaint was made by Daniel Alvin

Ryland, a Florida - licensed appraiser who has provided appraisal

services in Escambia and Santa Rosa counties in Florida. The

investigation of the complaint covered the period February 20,

2001 , through Decemb er 26, 2001.

5. Benjamin F. Clanton was the princip a l investigator. At

present , he is an investigator supervisor for Petitioner . He has

held that position since 2002.

6 . Mr. Clanton started investigating appraisal cases in

1995, when he retired fr om the Birmingham Police Department in

Birmingham, Alabama. In that year , he was employed by the

Alabama Real Estate Appraisal Board. While there , he took three

courses : the Appraisal of Real Estate, a 45 - hour course; the

Basic How to Appraise, a 25 - hou r course; and Uniform Standards of

Professional Appraisal Practices ( U SPAP), a 16 - hour course. He

took an update in USPAP in 1997, a four - hour course. Mr. Clanton

continued with A ppraisal I nstitute courses or courses involving

appraisal principles and pr ocedures, basic income capitalization,

residential case studies and a national USPAP course and other

updates.

7 . As part of the investigation , Mr. Clanton interviewed

Respondent Harrison. Mr. Clanton sought documentation from the

Respondent in the int erest of the recreation of the C ost A pproach

in the R eport. Mr. Clanton asked for the work files supporting

the Report. Respondent provided work files. D iscrete

information concerning recreation of the C ost A pproach was not

recei ved by Mr. Clanton .

8 . From his observations related to the Cost A pproach

within the R eport, Mr. Clanton describes problem s with the

calculations of the C ost A pproach where the stated effective age

in the comments on the C ost Approach was 25 years. T hat

calculated to be signi ficantly different, in his understanding ,

than the number u sed in the depreciation in the C ost A pproach.

The R eport reflected a remaining economic life of 35 years and a

total life expectancy of 60 years. He refers to the Report's

statement of the effect ive age of the Property as 15 years. In

his testimony, Mr. Clanton describe s the age life depreciation

method leading to establishment of the effective age but he was

never qualified as an expert to allow consideration of the

tes timony on the age life dep reciation method or other issues

related to the Cost Approach. T herefore , no further facts are

found on that topic.

9 . When interviewed by Mr. Clanton , Respondent Catchpole in

DOAH Case No. 06 - 3389PL acknowledged that there were errors in

the C ost A ppr oach formulations attributed to Respondent Harrison .

The nature of any errors was not explai ned. Without that

explanation t hey become in con s equential .

10. More particularly , the P roperty neighborhood is

slightly north of Interstate 10 in Pensacola , Florida , west of

Pine Forrest Road, to the west side of Highway 29 , and south of

Alternate 90 . The P roperty is located in what is referred to as

the Ensley area. The P roperty is one of the largest residences

in the Ensley area, in particular in Ensley Ga rdens. Immediately

off of Highway 29 are rows of commercial buildings. Behind those

rows is a railroad track. The P roperty is about 200 feet from

the railroad track . A n Escambia County utilities substation,

pumping station , is located north of the P rop erty. The Escambia

County public utilities facility is about 200 feet from the

P roperty . The Property i s located north of Broad Street. The

Property is on a large lot. Homes across from the P roperty on

Broad Street are located on smaller lots.

11. The property is not in a Planned Unit Development

(PUD). The area of the subject property is not homogenous , in

that the homes vary widely in quality, design, age and size.

12. By choice of the appraiser, t he Sales Comparison

Approach was used in det ermining the appraisal for the P roperty.

There were three comparable sales.

13. At the time the R eport was written the P roperty was 27

years old.

14. Comparable sale one was two years old.

15. Comparable sale two was 12 years old.

16. Comparable sa le three was 9 years old.

1 7 . The P roperty site was 120 feet by 260 feet according to

the R eport. This was larger than the c omparable sale s sites.

18 . Respondent , in providing information from the work file

related to the Report, included informatio n from a Multiple

Listing Service (MLS) for January 1997 from the Pensacola

Association of Realtors. In reference to comparable sale one,

the MLS refers to the location as Creekside Oaks Subdivision,

a luxury home under construction and a Parade Home e ntry.

It refers to a sprinkler system, pantry, cathedral ceilings,

security alarm , two closets in the master bedroom, separate

shower in the master bedroom, an open patio, laundry/utility

room, on a golf course, with a two - car garage. It has a

whir lpool for the master bedroom bath. It has double pane glass.

1 9 . In relation to comparable sale two, the MLS refers to

soaring cathedral ceilings with a fireplace in living room and

screen porch, a hot tub and gorgeous yard with pool. The pool is

desc ribed as an in - ground pool. There is a reference to a unique

atrium, an inside laundry, walk - in closets, sprinkler systems,

laundry/utility room and security alarm.

20 . The MLS pertaining to comparable sale three refers to

the Kings Road Subdivision in Cantonment , whereas the Report

refers to the location as Pensacola . In relation to comparable

sale three on Kings Road in Cantonment, that neighborhood has

deed restrictions limiting the type of homes and the size of

homes. It has a public sewer. It ha s underground utilities. It

has a concrete curb and gutter. The house is described as having

a fireplace, sprinkler system , screen porch , high ceilings,

security alarm , two - car garage , with a garden tub in the master

bath. It r efers to a laundry inside. There is a pool.

2 1 . The R eport in the section under the C omparable S ales

A pproach , under the sales comparison analysis that refers to

design and appeal described the P roperty and the comparable s as

ranch/average.

22 . The Property and the c omparabl e sale s properties were

all described as suburban - average as to location. The sites were

described as average for the P roperty and inferior f or the

comparables with a $3000 positive adjustment in each c omparable

sale to compensate for the difference.

23. The Property did not have a pool. Two of the

comparable sales had pools.

2 4 . Mr. Clanton asked the Respondent to provide him with a

second appraisal report on the P roperty . Respondent agreed to

provide it and mailed it to Mr. Clanton . A second appra isal

report was not received by Mr. Clanton . Nothing more is known

about a second appraisal report.

2 5 . In the appraiser certification signed by Respondent as

appraiser and signed by Respondent Catchpole , DOAH Case No. 06 -

3389PL, as supervisory apprai ser , under item 8 it was stated: "I

have personally inspected the interior and exterior areas of the

subject property . . . ." Within item 8 to the appraisers

certification , it went on to say that there was a personal

inspection of " . . . the exterior o f all properties listed as

comparables in the appraisal report . . . . "

2 6 . Respondent in th is case did not inspe ct the interior of

the P roperty as part of the appraisal , by contrast to an

awareness of the exterior . Respondent Catchpole , DOAH Case No.

06 - 3389PL, served as the supervisory appraiser and as such did

not inspect the P roperty in any respect . Respondent Fred R.

Catchpole , DOAH Case No. 06 - 3389PL , reviewed comparable property

data in relation to the sales comparison analysis but was not

invo lved in the selection process in choos ing comparable sales.

2 7 . The form used in preparing the Report is referred to

variously as Freddie Mac Form 70 6/93 and Fannie Mae Form 1004

6 / 93. In the R eport in the section involving subject matter ,

Fred and Ju anita Hicks were listed as borrowers and the current

owner of the P roperty . The property rights being appraised were

under the heading "fee simple . " There was a reference to a

lender/client as Home Star Mortgage Lending.

2 8 . The results of the R eport did not lead to any direct

harm to a consumer , in particular, the listed borrow ers , Fred and

Juanita Hicks.

CONCLUSIONS OF LAW

29 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding in acc ordance with Sections 120.569, 120.57(1), and

455.225, Florida Statutes (2006).

3 0 . In this case the Board has disciplinary authority in

accordance with Section 475.624, Florida Statutes (1995) , which

states:

Discipline. - The board . . . may reprima nd ,

fine , revoke , or suspend for a period not to

exceed 10 years, the registration, license,

or cer tification of any such appraiser, or

place any such appraiser on probation . . .

That provision goes on to describe specific grounds for

discipline, some o f which are implicated in this action.

3 1 . Respondent is a "certified real estate appraiser" who

holds certificate number R H - 119 issued by the Department of

B usiness and P rofessional R egulation on November 18, 1996.

§ 475.612 , Fla. Stat. (2006).

32 . In relation to this case the following definitions

pertain. § 475.611, Florida Statutes ( 1995 ):

(1) As used in this part, the term:

(a) 'Appraisal' or 'appraisal services'

means the services provided by certified ,

licensed , o r registered app raisers, and

includes:

1. 'Appraisal assignment' denotes an

engagement for which a person is employed or

retained to act, or could be perceived by

third parties or the public as acting, as an

agent or a disinterested third party in

rendering, an unbiase d analysis, opinion,

review, or conclusion relating to the nature,

quality, value, or utility of specified

interests, or aspects of, identified real

property.

2. 'Analysis a ssignm ent' denotes appraisal

services that relate to the employer's or

client's individual needs or investment

objectives and includes specialized

marketing, financing, and feasibility studies

as well as analyses, opinions, and

conclusions given in connection with

activities such as real estate brokerage,

mortgage banking, or real est ate counseling.

* * *

(c) 'Appraisal report' means any written or

oral analysis, opinion, or conclusion issued

by an appraiser relating to the nature,

quality, value, or utility of a specified

interest in, or aspect of, identified real

property, and includes a report communicating

an appraisal analysis, opinion, or conclusion

of value, regardless of title. However, in

order to be recognized in a federally related

transaction, an appraisal report must be

written.

* * *

(e) ' Appraiser ' means any person who is a

registered real estate appraiser, licensed

real estate appraiser, or a certified real

estate appraiser. An appraiser renders a

professional service and is a professional

within the meaning of s. 95.11(4)(a).

(f) ' Board ' means the Florida Real Estate

Appraisal Board established under this

section.

* * *

(i) ' Department ' means the Department of

Business and Professional Regulation.

* * *

(k ) 'Licensed appraiser' means a person who

is licensed by the department as qualified to

issue appraisal reports for residential re al

property of one to four residential units or

on such real estate or real property as may

be authorized by f ederal regulati on.

(l) 'Registered appraiser' means a person

who is registered with the department as

qualified to perform appraisal services under

the supervision of a licensed or certified

appraiser.

(m) ' Uniform Standards of Professional

Appraisal Practice' me ans the most recent

standards approved and adopted by the

Appraisal Standards Board of the Appraisal

Foundation.

33 . Petitioner bears the burden of proof in this

disciplinary case. Proof sufficient to sustain the allegations

in the Administrative Comp laint must be by clear and convincing

evidence. See § 120.57(1)(j), Fla. Stat. (2006); Department of

Banking and Finance Division of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996)

and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). The term

clear and convincing evidence is explained in the case In re:

Davey , 645 So. 2d 398 (Fla. 1994), quoting with approval from

Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

3 4 . Recognizing the disciplinary nature of this case

Section 475.624, Florida Statutes ( 199 5), in pertinent part, is

strictly construed in determining whether a violation has

occurred. See State v. Pattishall , 99 Fla. 296 and 126 So. 147

(Fla. 1930); Munch v. Dept. of Bus. and Prof. Reg. , 592 So. 2d

1136 (Fla. 1st DCA 1992); Fleishman v. Dept. of Bus. and Prof.

Reg. , 441 So. 2d 122 (Fla. 3rd DCA 1983); and Lester v.

Department of Professional and Occupational Regulation, State

Board of Medical Examiners , 348 So. 2d 923 (Fla. 1st DCA 1977).

3 5 . Th e allegations of material fact in relation to the

Administrative Complaint state:

4. On or about January 9, 1997, Fred

Catchpole , Respondent, and Rhonda E. Guy

developed and communicated an appraisal

report (Report) for property commonly known

as 693 B road Street, Pensacola, FL 32819

(Property).

5. The Report estimates the value of the

Property as $167,000.

6. In developing the Report, Respondent

utilized a cost approach analysis.

7. The Report states that the remaining

economic life is 35 years .

8. The data utilized for the Cost Approach

indicates the Property 's effective age is 25

years.

9. The Report states that the Property 's

effective age is 15 years.

10. The Report states that the depreciation

value is $11,100.

11. An $11,100 deprec iation value, when

compared to other data used in calculating

the cost approach of the Report, indicates

that an effective age much smaller than 15

was utilized.

12. In developing the Report, Respondent

utilized the sales comparison approach.

13. In d eveloping the sales comparison

approach, the Respondent utilized three

comparable properties (comparables) separate

from the Property.

14. All three comparables utilized were

superior to the Property.

15. In developing the sales comparison

approach, th e Respondent did not make

adequate adjustments for all three

comparables used.

16. At all times material, the neighborhood

surrounding the Property was a depressed area

where boarded up residences, condemned

residences, commercial properties, and

foreclos ures are not uncommon.

17. At all times material the Property was

in close proximity to the Burlington Northern

Railroad tracks.

18. The Burling Northern Railroad tracks are

a source of external obsolescence to the

Property.

19. At all times material the Property was

in close proximity to the Fleetco Truck and

Trailer Repair company.

20. The Fleetco Truck and Trailer Repair

company is a source of external obsolescence

to the Property.

21. At all times material the Property was

in close proximity t o the Escambia County

Utilities Authority.

22. The Escambia County Utilities Authority

is a source of external obsolescence to the

Property.

23. The Report mentions no external

obsolescence.

24. Comparable property one is in a golf

course community.

25. Comparable property three is in a golf

community.

26. Comparable property two is in an elite

subdivision in the Pensacola area.

27. None of the comparables' values are as

adversely affected by their surrounding

neighborhood as the Property's value is

adversely affected by its surrounding

neighborhood.

28. All comparables sites, despite their

smaller size, are superior in value to the

Property.

29. The Report states that all comparable

sites are inferior to the Property's site.

30. The Report i s a summary appraisal.

31. The Report does not state the intended

use of the appraisal.

32. On or about December 18, 2001,

Petitioner interviewed Respondent and learned

from Respondent that Respondent completed an

appraisal of the Property subsequent t o the

Report.

33. On or about December 18, 2001,

Petitioner requester [sic] Respondent provide

the data Respondent used in developing the

cost approach analysis.

34. Respondent failed to deliver the data

requested by Petitioner.

35. On or about Decem ber 18, 2001,

Petitioner requested Respondent deliver this

subsequent appraisal to Petitioner.

36. Respondent has failed to deliver this

subsequent appraisal.

37. On or about December 18, 2001,

Respondent was asked by Petitioner if the

Report was prepa red for purposes of a sale or

refinance.

38. Respondent could not recall from

personal memory or notes whether the Report

was prepared for purposes of a sale or

refinance.

39. Rhonda Guy completed an inspection of

the Property without the assistance of

Respondent.

40. The Report contains a certification

signed by Respondent that Respondent

inspected the interior and exterior of the

Property.

41. After January 9, 1997 and after the

Report was submitted, Respondent inspected

the comparables for the fi rst time.

42. The Report contains a certification

signed by Respondent that states Respondent

has inspected the interior and exterior of

the comparables.

36 . Based upon the factual allegations in the

Administrative Complaint , Respondent is charged i n Counts I

through V with statutory violations.

37 . Count I states:

. . . Respondent is guilty of failure to

retain records for at least five years of any

contracts engaging the appraiser's services,

appraisal reports, and supporting data

assemble d and formulated by the appraiser in

preparing appraisal report s in violation of

Section 475.629, Florida Statutes , and

therefore, in violation of Section

475.624(4), Florida Statutes .

38 . Section 475.62 9 , Florida Statutes ( 199 5), states:

Reten tion of records. -- An appraiser licensed

or certified under this section shall retain,

for at least 5 years, original or true copies

of any contracts engaging the appraiser's

services, appraisal reports, and supporting

data assembled and formulated by the

a ppraiser in preparing appraisal reports.

The period for retention of the records

applicable to each engagement of the services

of the appraiser runs from the date of the

submission of the appraisal report to the

client. These records must be made availab le

by the appraiser for inspection and copying

by the department on reasonable notice to the

appraiser. If an appraisal has been the

subject of or has served as evidence for

litigation, reports and records must be

retained for at least 2 years after the

t rial.

39 . Section 475.624(4), Florida Statutes (1995), allows

discipline if Respondent :

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.

The failure to comp ly with the retention requirements at Section

475.629, Florida Statutes (1995) does not constitute a violation

of a lawful order or rule under the provisions of the

aforementioned section or Chapter 455, Florida Statutes . By

extension it could arguably be considered a violation of Section

475.624(1), Florida Statutes (1995), that allows discipline if

Respondent , "Has violated any provisions of this part or of

s. 455.227(1)." Section 475.629, Florida Statutes (1995) , is

found within Chapter 475, Part I I, Florida Statutes (1995).

4 0 . Respondent upon request mailed the second appraisal to

Mr. Clanton but it was not received. Clear and Convincing

evidence has not been established that the appraisal was not made

available. § 475.629, Fla. Stat . (199 5). No violation has been

proven in accordance with Count I.

4 1 . Count II states:

. . . Respondent is guilty of having failed

to exercise reasonable diligence in

developing an appraisal report in violation

of Section 475.6 24(15), Florida Statutes .

42 . Section 475.624(15), Florida Statutes (1995), allows

discipline if Respondent :

Has failed or refuse d to exercise reasonable

diligence in developing an appraisal or

preparing an appraisal report .

43 . No competent e vidence was presented from a person with

sufficient insight into what constitutes reasonable diligence on

the part of a certified real estate appraiser when developing an

appraisal or in preparing an appraisal report to allow a legal

conclusion to be reach ed. Therefore no violation has been shown

concerning Count II.

4 4 . Count III states:

. . . Respondent has violated a standard for

the development or communication of a real

estate appraisal or other provision of the

Uniform Standards of Professional Appraisal

Practice in violation of Section 475.624(14),

Florida Statutes .

45 . Section 475.624(14), Florida Statutes (1995), allows

discipline if Respondent :

Has violated any standard for the development

or communication of a real estate appraisal

o r other provision of the Uniform Standards

of Professional Appraisal Practice.

46 . By virtue of the allegations of material fact , where it

is alleged , "The report does not state the intended use of the

appraisal," as well as the argument set forth in t he Petitioner's

P roposed R ecommended O rder , it is determined that the provision

of USPAP alluded to is Standards Rule 1 - 2 (1997) , which states:

In developing a real property appraisal,

an appraiser must observe the following

specific appraisal guideli nes: . . .

consider the purpose and intended use of

the appraisal . . .

47 . Petitioner failed to present a witness that was

established as competent to explain the expectations for a real

estate appraiser concerning consideration of the purpose and

intended use of the appraisal as contemplated in USPAP Standards

Rule 1 - 2. Nothing else presented in th e ca se serves to support

Petitioner 's case so that clear and convincing evidence may be

found that Respondent violated USPAP Standards Rule 1 - 2. No

vi olation has been proven concerning Count III.

48 . Count IV states:

Respondent is guilty of misrepresentation,

culpable negligence, or breach of trust in

any business transaction in violation of

Section 475.624(2), Florida Statutes .

49 . Section 475.624(2), Florida Statutes (1995) , allows

discipline if Respondent :

Has been guilty of . . . misrepresentation

. . . culpable negligence or breach of trust

in any business transaction . . .

Respondent has not been proven guilty of any material

mi srepresentation, or culpable negligence or breach of trust in

the business transaction represented through the R eport.

Therefore no violation of Section 475.624(2), Florida Statutes

(1995) , is proven as alleged in Count IV.

50 . Count V states:

. . . Respondent is guilty of having

obstructed or hindered in any manner the

enforcement of Chapter 475, Florida Statutes

or the performance of any lawful duty by any

person acting und er the authority of Chapter

475, Florida Statutes in violation of Section

475 .626(1)(f), Florida Statutes .

5 1 . Section 475.626(1)(f), Florida Statutes (1995) , states:

Violations and penalties. --

(1) VIOLATIONS. --

* * *

(f) No person shall obstruct or hinder in

any manner the enforcement of thi s section or

the performance of any lawful duty by any

person acting under the authority of this

section, . . .

The facts did not prove that Respondent obstructed or hindered

the enforcement of this section by the investigator or the

performance of the i nvestigator acting under the authority of the

section. No violation of Section 475.626(1)(f), Florida Statutes

(1995), has been established as alleged in Count V.

RECOMMENDATION

U pon consideration of the facts found and the conclusions of

law reach ed, it is

RECOMMENDED:

That a final order be entered dismissing the Administrative

Complaint against Respondent.

DONE AND ENTERED this 30th day of May, 2007, in Tallahassee,

Leon County, Florida.

S

CHARLES C. ADAMS

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

T his 30th day of May, 2007.

ENDNOTE

1/ C oncerning the factual p redicate for the fifth a ffirmative

d efense , Respondent through testimony refers to the delay

following the Department 's receipt of the c i tiz en's complaint

leading t o the Administrative Complaint . Reference is made to

problems with the memory of witnesses; the regrouping of data to

suppor t the appraisal r eport that cannot be located; neighborhood

data no longer available because of delay; the death of owners of

the subject p roperty ; information from lenders that provided

mortgages on the s ubje c t p roperty no t now available and a change

in the Pensacola Association of Realtors MLS system that

prohibited the retrieval of data.

In accordance with Section 455.225(4), Florida Statutes (2000) ,

" The d epartment shall also refer to the board any investigation

or di sciplinary proceeding not before the Division of

Administrative Hearings pursuant to chapter 120 or otherwise

completed by the d epartment within 1 year after the filing of a

complaint." Respondent also cites to the authority set forth in

Carter v. Departm ent of Professional Regulation , 633 So. 2d 3

(Fla. 1994) to support his position on the consequences of delay.

Recognizing the nature of the Administrative Complaint that forms

the basis for this prosecution, the unavailability of the

categories of inform ation described is not deemed significant

such as to establish prejudice in the defense. This

determination is made in recognition that Section 455.225(4),

Florida Statutes (20 00) , in its expectation that the Department

shall refer to the Board an investi gation or disciplinary

proceeding within one year after the complaint was made is not a

bar to prosecution. It creates no absolute relief for Respondent

when violated. The test in Carter , supra , has been followe d as

well.

This decision on the Responde nt 's f ifth a ffirmative d efense is

reached upon a consideration of the written arguments submitted

by the parties post - hearing.

COPIES FURNISHED:

Racquel A. White, Esquire

Department of Business and

Professional Regulation

Hurston Building, No rth Tower

400 West Robinson Street, Suite N 801

Orlando, Florida 32801

Thomas M. Brady, Esquire

3250 Navy Boulevard, Suite 204

Post Office Box 12584

Pensacola , Florida 32 591 - 2584

Michael Martinez, Acting General Counsel

Department of Bus iness and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Michael E. Murphy, Director

Division of Real Estate

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N 802

Orlando, Florida 32801

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.