07-001051PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Ashley Lynn Seibert Status: Closed Recommended Order on Friday, September 14, 2007.

Summary: Petitioner should revoke Respondent`s license who, as a trainee, developed an appraisal without supervision, affixed her supervisor`s name to the appraisal report, and collected from the consumer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE , )

)

Petitioner , )

)

vs. ) C ase No. 07 - 1051PL

)

ASHLEY LYNN SEIBERT , )

)

Respondent . )

)

RECOMMENDED ORDER

The Administrative Law Judge (ALJ) assigned to this case by

the Division of Administrative Hearings (DOAH) conducted the

formal hearing on July 16, 2007, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Racqu el A. White, Esquire

Department of Business and

Professional Regulation,

400 West Robinson Street, Suite 801, North

Orlando, Florida 32801 - 1757

For Respondent: ( No Appearance)

STATEMENT OF THE ISSUES

The issues are whether Respondent committed the acts

alleged in the Administrative Complaint; whether those acts

violate Subs ections 475.6221( 1) and (2) and 475.624(2), (4),

and (14) , Florida S tatutes (2004), 1 and Florida Administrative

Code Rule 61J1 - 4.010(6) 2 ; and, if so, what penalty, if any,

should be imposed against Respondent’s license.

PRELIMINARY STATEMENT

On August 9, 2006, Petitioner filed a seven - count

Administrative Complaint agains t Respondent. Respondent timely

requested an administrative hearing, and Petitioner referred the

matter to DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of two

witnesses and submitted 12 exhibits for admission into evide nce.

Respondent did not appear at the hearing and did not otherwise

submit any evidence. The identity of the witnesses and exhibits

and any attendant rulings are reported in the Transcript of the

hearing file d with DOAH on August 27, 2007.

Petitioner fil ed its P roposed R ecommended O rder (PRO) on

August 10, 2007. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating persons licensed in Florida as real estate

appraisers. Respondent is licensed in Fl orida as a residential

real estate appraiser pursuant to license number 5451.

Petitioner issued the current license to Respondent at

6775 Overlook Drive, Fort Myers, Florida 33919.

2. On June 5, 2005, Respondent was a trainee appraiser in

the state purs uant to registration RI 0005451. Respondent

developed, signed, and communicated an appraisal report (the

report) for property without the knowledge or supervision of a

licensed appraiser (her supervisor). The property is located at

2248 Ephraim Avenue, F ort My ers, Florida (the property).

3. Respondent affixed the digital signature of her

supervisor to the report without his knowledge or consent and

checked the certification box on the report indicating that her

supervisor personally inspected the prope rty. Respondent’s

supervisor never inspected the property.

4. Respondent’s supervisor did not assign the appraisal to

Respondent. Respondent accepted payment for the report from

someone other than her supervisor, specifically the appraisal

client. Resp ondent did not enter into the experience training

log, which is reviewed by her supervisor and others, the name,

address, type of property appraised, and the signature and

lic ense number of her supervisor.

5. The previous findings show that Respondent

mis represented herself as a licensed appraiser while Respondent

was still a trainee. In addition, Respondent started her own

appraisal company while she was a trainee. The name of the

company is Hot Appraisals LLC.

CONCLUSIONS OF LAW

6. DOAH has jurisdict ion over the parties and the subject

matter of this proceeding pursuant to Section 1 20.57(1), Florida

Statutes (2007 ). The parties received adequate notice o f the

administrative hearing.

7. The burden of proof is on Petitioner. Florida

Department of Tra nsportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981); Balino v. Department of Heath and

Rehabilitation Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

Petitioner must show by clear and convincing evidence that

Respondent committed the act s alleged in the Administrative

Complaint and the reasonableness of any proposed penalty.

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

8. Petitioner satisfied its burden of proof. The evidence

is clear and convincing that Respondent committed the a cts and

violations alleged in the Administrative Complaint.

9. The evidence is clear and convincing that Respondent

misrepresented herself as a licensed appraiser, concealed her

status as a trainee, and is guilty of false pretenses, dishonest

conduct, and breach of trust in a business relationship within

the meaning of Subsection 475.624(2). The same acts v iolated

Subsection 475.624(4).

10. Respondent performed appraisal services without the

direct supervision of her supervisor in violation of Subsection

475.6221(1). Respondent's acceptance of fees directly from the

client violated Subsection 475.6221((2). The failure of

Respondent to maintain a work - file for her appraisals violate s

the Uniform Standards of Professional Appraisal Practice (USPAP)

and Su bsection 475.624(14).

11 . Section 4 75.624 authorizes a range of disciplinary

action against Respondent’s license. Rule 61J1 - 8.002(3) , as

adopted in 2004, recommends a range of penalties for the

violations committed by Respondent. The rule contains no

re commended penalty for the violations of Subsections

475.6221(1) and (2), but recommends: license revocation for a

violation of Subsection 475.624(2); a ny penalty up to revocation

and a fine up to $5 ,000 for the violation of Subsection

475.624(4); and a pe nalty ranging from a five - year license

suspension to revocation and $1,000 fine for the violation of

Subsection 475.624(14). Fla. Admin. Code R. 61J1 - 8.002(3)(e),

(g), and (q).

1 2 . Rule 61J1 - 8.002(4) authorizes deviation from the

recommended range of pe nalties based on express mitigating or

aggravating factors. Only one mitigating factor is present.

Respondent has no disciplinary history. Fla. Admin.

Code R 61J1 - 8.002(4)(b)3.

1 3 . Several aggravating factors are present. Respondent

caused financial harm to the consumer by charging the consumer

for an appraisal that was not developed and certified by a

licensed appraiser. The Administrative Complaint contains

numerous counts against Respondent. Respondent was not licensed

as an appraiser when she mi srepresented that she was licensed as

an appraiser. Fla. Admin. Code R. 61J1 - 8.002(4)(b)1, 2, and 4.

1 4 . Subs ection 455.227(3)(a) authorizes the recovery of

investigative and administrative costs. Petitioner incurred

such costs in the amount of $3,49 2.1 0.

RECOMMENDATION

Based upon the foregoing Findings of Fac t and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a f inal o rder finding

Respondent guilty of the charges alleged in the Administrative

Complaint, ordering Respondent to pay $3,492.1 0 in investigative

and administrative costs, and revoking Respondent’s residential

appraiser license.

DONE AND ENT ERED this 14th day of September , 2007 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 Administrati ve Hearings

this 14th day of September , 2007 .

ENDNOTES

1/ All references to subsections, se ctions, and chapters are to

Florida Statutes (2004) unless otherwise stated.

2/ All references to rules are to rules promulgat ed in the

Florida Admin istrative Code in effect in 2004 unless otherwise

state d.

COPIES FURNISHED :

Racquel White, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite 801N

Orlando, Florida 32801 - 1757

Ashley Lynn Seibert

6775 Overlook Drive

Fort Myers, Florida 33919

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Suite 802, North

Orlando, Florida 32801

Ned Luczynski, General Couns el

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommend ed Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.