06-003389PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Fred R. Catchpole 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. ) Ca se No. 0 6 - 338 9 PL

)

FRED R. CATCHPOLE, )

)

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 co nducted 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

Departme nt of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N 801

Orlando , Florida 32 801

For Respond ent: Martin A. Pedata, Esquire

Martin A. Pedata, P.A.

150 Wildwood Road

Deland, Florida 32720

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 Professional Regul ation, Division of Real Estate,

Petitioner, vs. Fred R. Catchpole , Respondent , FDBPR Case

No. 200 180523 , 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 dea lt 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 thr e e 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 coun ts to the

Administrative Complaint are explained in the Conclusions of Law.

Respondent was provided a form referred to as an "Election

of Rights ." It allowed Respondent to decide upon options in

addressing the Administrative Complaint . He chose to disp ute the

allegations of fact contained in the Administrative Complaint .

By that choice , he was perceived as petitioning for a formal

hearing pursuant to Section 120.57(1), Florida Statutes , by

signing his election under oath on October 28, 2003 . He attach ed

a further explanation of his position in writing. That

correspondence was dated October 17, 2003 .

On September 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 Election of Rights Form

with supporting correspondence. The case was assigned to the

present administrative law judge as DOAH Case No. 06 - 3389PL.

On October 2, 2006, Respondent fil ed a M otion to D ismiss the

Administrative Complaint W ith P rejudice. On October 5, 2006 ,

Petitioner filed a Motion to Clarify and Motion to Exclude. On

October 13, 2006 , an order was entered declining to rule on the

Motion to Dismiss, in that it had been filed by Respondent , pro

se , at a time he was represented by counsel.

On November 2, 2006 , Respondent filed a Motion to Dismiss

the Administrative Complaint W ith P rejudice for failure to

perfect service. On that same day , Petitioner filed a Motion to

St rike Respondent 's Second Motion to Dismiss. On November 3,

2006 , having clarified that the more recent Motion to Dismiss had

been filed by counsel for Respondent , an order was entered

allowing Petitioner to address the merits of the second motion.

On Nov ember 9, 2006 , Petitioner filed a Response to Respondent 's

Motion to Dismiss.

On November 13, 2006, the parties filed a Joint Motion to

Continue.

On November 14, 2006, an o rder was entered denying the more

recent motion to dismiss. On that date , the c ases was reset for

hearing on January 29, 2007.

On December 1, 2006, Respondent filed his motion to

reconsider his last motion to dismiss and a new motion to

dismiss. On that date , Respondent filed a request for subpoena

to provide discovery.

On Decem ber 5, 2006, an order was entered establishing the

manner in which Respondent could request the issuance of

subpoenas to be completed and served by Respondent .

On December 8, 2006, Petitioner filed a response to the more

recent Respondent 's renewed motio n to dismiss.

On December 12, 2006 , an o rder was entered denying the

m otion for r econsideration of the November 14, 2006 , o rder,

denying the more recent motion to dismiss on its grounds and

establishing a means for Respondent to address the consequences

of delay in the prosecution in accordance with Carter v.

Department of Professional Regulation , 633 So. 2d 3 (Fla. 1994)

prior to hearing , as had been pl ed in the December 1, 2006 ,

motion to dismiss .

On December 19, 2006 , Respondent filed a Notice of Change of

Representation Notice of Probable Request for Continuance. On

that same date , Petitioner responded to that n otice.

On December 20, 2006 , Respondent filed a Motion for Order to

Compel Discovery. On that date Respondent filed a Response to

P etitioner 's Response to Respondent 's Notice of Change of

Representation Notice of Probable Request for Continuance. On

that date , Respondent filed a Withdrawal of Counsel Motion by

Respondent Request for Telephonic Hearing.

On December 28, 2006 , Respond ent filed a Motion for the

Court to Determine Prejudice under Carter v. Department of

Professional Re sponsibility [sic] .

On January 9, 2007 , an order was entered d enying the

Respondent 's Request for Withdrawal of Counsel, a motion pro se ,

due to lack of service on his attorney.

On January 11, 2007 , a Motion for Substitution of Attorneys

was filed by Respondent 's present attorney.

On January 12, 2007 , an o rder was entered granting that

motion relieving prior counsel and accepting the substitution of

pr esent counsel.

On January 18, 2007 , Respondent filed an Emergency Motion

for Continuance. On that same , date Respondent filed a Motion

for Court to Consider A ll Previous pro se M otion s F iled by the

Respondent .

On January 22, 2007 , Petitioner filed a Response to

Respondent 's Emergency Motion to Continue and Motion for

Consideration of Respondent 's pro se motions.

On January 25, 2007 , an o rder was entered refusing to accept

and rule upon prior pro se motions by Respondent .

On January 29, 2007 , an order was entered continuing the

case and rescheduling it to be hear d on March 20, 2007 .

On March 8, 2007 , Respondent filed another m otion to d ismiss

alluding to the consequences of delay in the p ro secution and in

the effort to establish a defense. A t hearing , it was determined

to address the motion to dismiss in the Recommended Order for

reasons explained in the hearing transcript.

At hearing , Petitioner called Fred Clanton and Daniel Ryland

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

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 7 we re admitted into evidence. Respondent

testified in his own behalf and adopted the testimony of Victor

Harrison , Respondent in DOAH Case No. 06 - 338 7 PL . 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 ; Respondent's Exhibit s numbered

1 through 56 taken from the Harrison 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 a nd 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 Respondent Harrison 's first interrogatories in DOAH Case No.

06 - 3387PL .

In compliance 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

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

with DOAH Case N o. 06 - 3387PL. On April 23, 2007 , the parties

filed proposed recommended order s and other argument . All

w ritten submissions by the parties have been considered in

preparing the Re commended Order .

Respondent C a tchpole 's Motion to Dismiss 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, Victor Harrison, Respondent

and Rhonda Guy developed and communicated 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 December 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 from 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 - hour 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

continue d with A ppraisal I nstitute courses or courses involving

appraisal principles and procedures, basic income capitalization,

residential case studies and a national USPAP course and other

updates.

7 . As part of the investigation Mr. Clanton interviewed

Res pondent Victor Harrison , DOAH Case No. 06 - 3387PL . Mr. Clanton

sought documentation from that Respondent in the interest of the

recreation of the C ost A pproach in the R eport. Mr. Clanton asked

for the work files supporting the Report. That Respondent

pro vided work files. D iscrete information concerning recreation

of the C ost A pproach was not r ece i v ed 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 significantly different, in his understanding ,

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

The R eport reflected a remaini ng economic life of 35 years and a

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

statement of the effective 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 depreciation method or other issues

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

found on that topic.

9 . When intervie wed by Mr. Clanton , Respondent acknowledged

that there were errors in the C ost A pproach formulations

attributed to Respondent , Victor Harrison , DOAH Case No. 06 -

3387PL . The nature of any errors was not explai ned. Without

that explanation t hey become in co n 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 Gardens. Immediately

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

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

the railroad track . A n Escambia County utilities substation,

pumping station , is located north of the P roperty. 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 Property

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 determining 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 sale 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 omparab le sale s sites.

18. Respondent Victor Harrison, DOAH Case No. 06 - 3387PL, in

providing information from the work file related to the Report,

included information from a Multiple Listing Service (MLS) for

January 1997 from the Pensacola Association of Rea ltors. 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 entry. 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 whirlpool for the master bedroom bath. It has

double pane glass.

1 9 . In relation to comparable sale tw o, 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

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

atrium, an inside laundry, walk - in close ts, 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 t hree 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 has underground utilities. It

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

a firep lace, 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 sal es 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 omparable sale s properties were

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

described as average for the P roperty and inferior for 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 , Victor Harrison, DOAH

Case No. 06 - 3387PL, 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 appraisal report was not received by

Mr. Clanton . Nothing mor e is known about a second appraisal

report.

2 5 . In the appraiser certification signed by Respondent

Victor Harrison, DOAH Case No. 06 - 3387PL, as app raiser , and

signed by Respondent , as supervisory appraiser , under item 8 it

was stated: "I have persona lly 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 of all properties

listed as comparables in the app raisal report . . . . "

2 6 . Respondent , Victor Harrison , DOAH Case No. 06 - 3387PL ,

did not inspe ct the interior of the P roperty as part of the

appraisal , by contrast to an awareness of the exterior .

Respondent served as the supervisory appraiser and as s uch did

not inspect the P roperty in any respect . Respondent reviewed

comparable property data in relation to the sales comparison

analysis but was not involved in the selection process in

choos ing comparable sales.

2 7 . The form used in preparing the Re port 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 Juanita Hicks were listed as borrowers and the current

owner s of the P roperty . The property rights be ing 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

Juanit a Hicks.

CONCLUSIONS OF LAW

29 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding in accordance 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 reprimand ,

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 of which are implicated in this action.

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

holds certificate number R H - 6 9 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, Flori da 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 appraisers, and

includes:

1. 'Appraisal assignment' denotes an

engagement for which a person is employed or

retained to a ct, or could be perceived by

third parties or the public as acting, as an

agent or a disinterested third party in

rendering, an unbiased 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 ssignment' denotes appraisal

services that relate to the employer's or

client's individual needs or investment

objectives and includes specialized

marketing, finan cing, and feasibility studies

as well as analyses, opinions, and

conclusions given in connection with

activities such as real estate brokerage,

mortgage banking, or real estate counseling.

* * *

(c) 'Appraisal report' means any wr itten 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 establi shed 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 qualifi ed 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 regulation.

(l) 'Registered appraiser' means a person

who is registered with the depart ment as

qualified to perform appraisal services under

the supervision of a licensed or certified

appraiser.

(m) ' Uniform Standards of Professional

Appraisal Practice' means 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 Complaint must be by clear and convincing

evidence. See § 120.57(1)(j), Fla. Stat. (20 06); 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 cas e 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 . The allegations of material fact in relation to the

Administrative Complaint state:

4. On or about January 9, 1997, Victor

Harrison , Respondent, and Rhonda E. Guy

developed and communicated an appraisal

report (Report) for property commonly known

as 693 Broad 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 depreciation 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 developing 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, the 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

foreclosures are not uncommon.

17. At all times material the Property was

in close prox imity 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 comp any.

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 to the Escambia County

Utilities Authority.

22. The Escambia County Utilities Au thority

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 propert y 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 is a summary appraisal.

31. The Report does not state the intended

use of th e appraisal.

36 . Based upon the factual allegations in the

Administrative Complaint , Respondent is charged in Counts I

through III with statutory violations.

37 . Count I states:

. . . Respondent is guilty of having failed

to exercise reasonable d iligence in

developing an appraisal report in violation

of Section 475.624(15), Florida Statutes .

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

discipline if Respondent :

Has failed or refuse d to exercise reasonable

diligence in developin g an appraisal or

preparing an appraisal report .

3 9 . No competent evidence 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 reached. Therefore no violation has been shown

concerning Count I.

4 0 . Count II 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 .

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

discipline if Respondent :

Has violated any stand ard for the development

or communication of a real estate appraisal

or other provision of the Uniform Standards

of Professional Appraisal Practice.

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

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

appraisal," as well as the argument set forth in the Petitioner's

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

of the USP AP alluded to is Standards Rule 1 - 2 (1997) , which

states:

In developing a real property apprais al,

an appraiser must observe the following

specific appraisal guidelines: . . .

consider the purpose and intended use of

the appraisal . . .

43 . Petitioner failed to present a witness that was

established as competent to explain the expectation s for a real

estate appraiser concerning consideration of the purpose and

intended use of the appraisal as contemplated in USPA P Standards

Rule 1 - 2. Nothing else presented in the case serves to support

Petitioner 's case so that clear and convincing eviden ce may be

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

violation has been proven concerning Count II.

44 . Count I II 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 .

45 . 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 trans action . . .

Respondent ha s not been proven guilty of any material

misrepresentation, 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 III .

RECOMMENDATION

U pon consideration of the facts found and the conclusions of

law reached, 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

this 30th day of May, 2007.

ENDNOTE

1/ C oncerning the factual predicate for the Motion to Dismiss ,

Respondent through testimony r efers to the delay following the

Department 's receipt of the ci tizen '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 loc ated; 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 not 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 disciplinary proceeding not before the Division of

Administrative Hearings p ursuant 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 , supra , to support his position on the consequences of

delay. Recognizing the natur e of the Administrative Complaint

that forms the basis for this prosecution, the unavailability of

the categories of information described is not deemed significant

such as to establish prejudice in the defense. This

determination is made in recognition t hat Section 455.225(4),

Florida Statutes (2000) , in its expectation that the Department

shall refer to the Board an investigation or disciplinary

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

bar to prosecution. It creates no absolute r elief for Respondent

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

well.

This decision on the Respondent 's Motion to Dismiss is reached

upon a consideration of the written arguments submitted by the

parties post - hearing.

COPIES FU RNISHED:

Racquel A. White, Esquire

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Street, Suite N 801

Orlando, Florida 32801

Martin A. Pedata, Esquire

Martin A. Pedata, P.A.

150 Wildwood Road

Deland, Florida 32720

Michael Martinez, Acting General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Michael E. Murphy, Director

Division of Real Estate

De partment 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 su bmit 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.