08-002722PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Lee Ann Moody
 Status: Closed
Recommended Order on Tuesday, January 27, 2009.


View Dockets  
Summary: Petitioner alleged violations of statute addressing the discipline of real estate appraisers. Held: Respondents failed to adequately document adjustments made to their appraisal report.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF REAL ESTATE, )

21)

22Petitioner, )

24)

25vs. ) Case No. 08-2721PL

30)

31KATHLEEN GREEN, )

34)

35Respondent. )

37_______________________________ )

39DEPARTMENT OF BUSINESS AND )

44PROFESSIONAL REGULATION, )

47DIVISION OF REAL ESTATE, )

52)

53Petitioner, )

55)

56vs. ) Case No. 08-2722PL

61)

62LEE ANN MOODY, )

66)

67Respondent. )

69)

70RECOMMENDED ORDER

72This cause came on for final hearing before Harry L.

82Hooper, Administrative Law Judge with the Division of

90Administrative Hearings, on November 5, 2008, in Pensacola,

98Florida.

99APPEARANCES

100For Petitioner: Robert Minarcin, Esquire

105Department of Business &

109Professional Regulation

111400 West Robinson Street, N801

116Orlando, Florida 32801-1757

119For Respondent: Thomas M. Brady, Esquire

1253250 Navy Boulevard, Suite 204

130Post Office Box 12584

134Pensacola, Florida 32591-2584

137STATEMENT OF THE ISSUE

141The issue is whether either Respondent committed the

149violations alleged in Counts I through VIII of their respective

159Administrative Complaints.

161PRELIMINARY STATEMENT

163The Florida Department of Business and Professional

170Regulation, Division of Real Estate (Division), filed

177Administrative Complaints in the cases of Respondent Kathleen

185Green (Ms. Green), a certified residential real estate

193appraiser; and Respondent Lee Ann Moody (Ms. Moody), a

202registered trainee appraiser, on March 4, 2008. Ms. Green and

212Ms. Moody will also be referred to collectively as the

222Respondents. The Administrative Complaints sought disciplinary

228action by the Florida Real Estate Appraisal Board (Board).

237The Administrative Complaints charged as follows: Count I,

245violating Subsection 475.624(15), Florida Statutes, by failing

252to exercise reasonable diligence in developing an appraisal

260report; Count II, violating Subsection 475.624(4), Florida

267Statutes, by failing to retain records for at least five years

278of any contracts engaging the appraiser's services, appraisal

286reports, and supporting data assembled and formulated by the

295appraiser in preparing the appraisal report; Count III,

303violating Subsection 475.624(2), Florida Statutes, by

309misrepresentation, culpable negligence, or breach of trust in a

318business transaction; Count IV, violating Subsection

324475.624(14), Florida Statutes, by violating the Conduct Section

332of the Ethics Rule, or other provision of the Uniform Standards

343of Professional Appraisal Practice (2006) (USPAP); Count V,

351violating Subsection 475.624(14), Florida Statutes, by violating

358a standard for the development or communication of a real estate

369appraisal, specifically the record keeping section of the Ethics

378Rule or other provision of the USPAP; Count VI, violating

388Subsection 475.624(14), Florida Statutes, by violating a

395standard for the development or communication of a real estate

405appraisal, specifically Standards Rule 1-1(c), or other

412provision of the USPAP; Count VII, violating Subsection

420475.624(14), Florida Statutes, by violating a standard for the

429development or communication of a real estate appraisal,

437specifically Standards Rule 2-1(a) and (b), or other provision

446of the USPAP; Count VIII, violating Subsection 475.624(14),

454Florida Statutes, by violating a standard for the development or

464communication of a real estate appraisal, specifically Standards

472Rule 2-2(b)(viii), or other provision of the USPAP.

480Both Respondents served answers on April 29, 2008.

488The matter was filed with the Division of Administrative

497Hearings on June 9, 2008. The cases were consolidated on

507June 25, 2008, and set for hearing on August 19 and 20, 2008.

520Pursuant to Petitioner's motion, the hearing was set for

529October 15 and 16, 2008, in Pensacola, Florida. Pursuant to a

540Joint Motion to Continue, the hearing was scheduled for

549November 5 and 6, 2008, and was heard in its entirety on

561November 5, 2008.

564At the hearing, Petitioner presented the testimony of Jack

573Case, an investigator specialist for the Division; and Sylvia

582Storm, an expert in real estate appraisal, and offered seven

592exhibits that were accepted into evidence. Respondents

599presented the testimony of Ms. Moody and Ms. Green. Victor

609Harrison was qualified as an expert witness in the field of real

621estate appraisal. His testimony was presented by Ms. Moody and

631Ms. Green. Respondents offered 17 exhibits that were accepted

640into evidence.

642A Transcript was filed on December 1, 2008. Subsequently,

651the Division filed an Amended Motion for Extension of Time for

662filing proposed recommended orders. Counsel for Respondents

669agreed. The Amended Motion for Extension of Time was granted,

679and the deadline was set for December 23, 2008, as requested by

691the Division. The Petitioner and Respondents timely filed their

700Proposed Recommended Orders.

703References to statutes are to Florida Statutes (2006)

711unless otherwise noted.

714FINDINGS OF FACT

7171. The Florida Real Estate Appraisal Board is the state

727agency charged with regulating real estate appraisers who are,

736or want to become, licensed to render appraisal services in the

747State of Florida.

7502. At all times pertinent, Ms. Green was licensed as a

761certified residential real estate appraiser. Ms. Green held

769license number 3236 in accordance with Chapter 475, Part II,

779Florida Statutes. Ms. Moody was licensed as a registered

788trainee appraiser. Ms Moody held license number 16667 in

797accordance with Chapter 475, Part II, Florida Statutes. In

806October 2008, Ms. Moody received a license as a certified

816residential appraiser, license number RD 7444.

8223. On March 8, 2007, Ms. Moody signed an appraisal of real

834property located at 11735 Chanticleer Drive, Lot 16, Block B

844Grand Lagoon, in Pensacola, Florida. She signed as appraiser.

853Ms. Green signed the report as supervisory appraiser. The

862listed borrower was James W. Cobb, and the lender was Premier

873Mortgage Capital. Respondents developed, signed, and

879communicated this report.

8824. Subsequently, the borrower, Mr. Cobb, who was also the

892buyer, complained to the Division with regard to the appraisal

902on the property, and the Division investigated the matter. The

912investigation resulted in an investigative report dated

919December 21, 2007.

9225. According to the appraisal, the property was listed for

932$1,030,000 in the multiple listing service, and the contract

943price was $790,000. The appraisal report valued the property

953using both the sales comparison approach and the cost approach.

963Both approaches resulted in a value of $1,030,000. These facts

975were reported in a six-page Uniform Residential Appraisal

983Report, Fannie Mae Form 1004 March 2005. At the time of the

995hearing, the property was the subject of a foreclosure action.

10056. The USPAP provides guidance to those involved in the

1015business of conducting real estate appraisals. Real estate

1023appraisers typically use both a "sales comparison approach" and

1032a "cost approach" in attempting to arrive at a value. A "sales

1044comparison approach" uses data obtained from sales of similar

1053properties and adjusts for differences. A "cost approach"

1061starts with the cost of an empty building site and adds to that

1074the cost of building an identical structure and adjusts for

1084enhancements and depreciation. Both approaches were used by

1092Respondents and were reported on the Form 1004.

11007. The Division's expert witness, Sylvia G. Storm,

1108reviewed the Form 1004 and all of the available supporting data.

1119She did not make an appraisal herself and did not visit the

1131property in question. Ms. Storm was accepted as an expert as

1142provided by Section 90.702, Florida Statutes, because she had

"1151specialized knowledge" regarding real estate appraisals. This

1158was the first time that Ms. Storm testified as an expert witness

1170in a case involving appraisals. The same was true in the case

1182of the expert witness presented by Respondents, Victor Harrison.

1191It is noted that these experts were only minimally qualified,

1201and their testimony is given little weight.

12088. Ms. Storm commented on the fact that the property was

1219called "new" in the improvements section yet on the following

1229sales comparison approach it was listed under actual age, "27/E

1239New-2." This suggests the property with improvements is 27

1248years old, but has an effective age of new to two years. In

1261fact, in the improvements section it was noted that the property

1272has been completely reconstructed. It is clear from the Form

12821004, and the hearing record, that the property was essentially

1292destroyed during Hurricane Ivan and was rebuilt above the

1301surviving foundation. It is found that the house was

1310essentially new at the time of the appraisal.

13189. Ms. Storm believes some of the deficiencies she noted

1328in the Form 1004, discussed in more detail below, and the

1339supporting documentation contained in the work file, affect the

1348credibility of the report. She believes that some of these

1358deficiencies amounted to a violation of USPAP.

136510. Ms. Storm stated that an appraiser should do a

1375complete analysis of the contract and that if it is not done the

1388appraiser is not being reasonably diligent. She also testified

1397that an appraiser, who failed to discuss the large difference

1407between the contract price and appraised value, and who failed

1417to document the analysis, is not being reasonably diligent.

1426Mr. Harrison, on the other hand, testified that after his

1436analysis of the report he found no indication at all of a lack

1449of reasonable diligence.

145211. Ms. Storm opined that two or more appraisers,

1461appraising the same property may arrive at two or more numbers

1472and that there is nothing unusual when that occurs.

148112. Ms. Moody testified under oath that the supporting

1490information contained in the work file was adequate and that

1500references to other documents, such as public records, were

1509plentiful and complied with the requirements of USPAP. This

1518testimony was adopted by Ms. Green.

152413. In order to provide clarity, actual allegations

1532contained in the Administrative Complaints will be discussed in

1541seriatim . As will be addressed more fully in the Conclusions of

1553Law, the Division must prove its factual allegations by clear

1563and convincing evidence. In evaluating the evidence presented,

1571that standard will be used below. The factual allegations will

1581be presented in bold face type, and the discussion of the proof

1593will be in regular type:

15986. Respondent made the following errors and omission in

1607the Report:

1609A) "Failure to discuss or explain why the Subject

1618Property was listed for sale for $1,030,000 and the contract

1630price was $790,000."

1634Ms. Storm opined that the discussion of the contract price

1644did not go into the details as to the history of the property,

1657or list price history, or who the contracting parties were or

1668any fees to be paid by either party. She believes the Form 1004

1681should have reported when the property was listed and how many

1692days it had been on the market. She believes that USPAP

1703requires the appraiser to analyze the contract completely. She

1712believes the Form 1004 should have commented on the large

1722difference between the sales price and the appraised price. The

1732Form 1004 states, "I did analyze the contract for sale for the

1744subject purchase transaction." Ms. Moody testified under oath

1752that they analyzed the difference between the appraisal price

1761and the selling price. She stated that there was no requirement

1772to discuss it in the Form 1004. Ms. Green adopted this

1783testimony. Ms. Moody also stated that the contract price of a

1794piece of property does not affect the value of the property as

1806reported in the Form 1004. This factual allegation was not

1816proven.

1817B) "Use of an outdated FEMA map for the Subject

1827Property."

1828Respondents used a FEMA flood map that was outdated. This

1838occurred because the computer program Respondents were using,

1846InterFlood.com, presented an out-of-date map. The map used in

1855the appraisal was dated February 23, 2000, but the most current

1866edition of the map available at the time of the appraisal was

1878dated September 26, 2006. The later map was no different from

1889the map Respondents used. The Form 1004 notes, with regard to

1900the flood status, "It appears to be located in FEMA Flood Zones

1912X and AE. A survey would be needed to confirm flood zones." In

1925sum, there is nothing incorrect or misleading with regard to

1935flooding potential. The Division's expert witness, Ms. Storm,

1943concluded that Respondents did not err with regard to the FEMA

1954flood map. This factual allegation was not proven.

1962C) "Misstatement of PUD Homeowner's Association Fees

1969for the Subject Property."

1973Respondents asserted the homeowner's association fee to be

1981$100 annually. The by-laws of the Grande Lagoon Community

1990Association, Inc., in effect during all times pertinent, state

1999unequivocally that annual dues of the Association are $100. The

2009Division's investigator stated that he learned through a

2017telephone call with a "Mr. Broome," who was possibly an officer

2028in the homeowner's association, that at the time of the

2038appraisal there was an annual assessment by the homeowner's

2047association of $250 for canal maintenance, and that this amount

2057was to increase to $500 annually in 2008. Information about

2067this assessment was not readily available to Respondents. An

2076assessment is different from a homeowner's fee. The Division's

2085expert witness stated that if there is a homeowner's fee it

2096should be stated on the Form 1004, but that it is not a USPAP

2110requirement. This factual allegation was not proven.

2117D) "Failure to differentiate view of Subject Property

2125and comparable sale 2, when the Subject Property is located on a

2137canal and the comparable had an open water location."

2146Comparable Sale 2 is located on Star Lake, a small, lagoon-

2157like body of water with access to Pensacola Bay, similar to the

2169location of the appraised property, which is on a canal with

2180access to open water on Big Lagoon. The views on these

2191properties are sufficiently similar that no adjustment is

2199required. This factual allegation was not proven.

2206E) "Failure to note financial assistance in the sales

2215contract, where seller was to pay all closing costs."

2224The agreement whereby seller would pay $20,000 in closing

2234costs was not made until March 28, 2007, 20 days after the

2246appraisal was completed. This factual allegation was not

2254proven.

2255F) "Failure to note consulting fee to Investor's

2263Rehab in the sales contract."

2268This allegation is true in that the consulting fee was not

2279mentioned. Ms. Storm opined that it should be analyzed in the

2290appraisal report. She asserted that persons who were not privy

2300to the contract might make decisions in reliance upon the

2310appraisal report and, therefore, the Form 1004 should mention

2319the consulting fee. However, Ms. Moody pointed out that the

2329consulting fee had no effect on the value of the property and

2341stated that it was intentionally omitted. This factual

2349allegation was proven to the extent that the consulting fee was

2360not mentioned, but this omission did not affect the accuracy or

2371credibility of the appraisal report.

2376G) "Failure to explain range of effective age dates

2385for the Subject Property and comparable sale 1."

2393As discussed in Finding of Fact 8, the subject property was

2404essentially new at the time it was appraised. As pointed out by

2416Mr. Harrison, the effective age was new. Effective age is an

2427estimate of the physical condition of a building. The actual

2437age of the building may be shorter or longer than the effective

2449age. The determination of effective age is largely a matter of

2460judgment. In the case of Comparable Sale 1, it was built in

24721980 and last sold in August 2005. Respondents reported the age

2483in 2007 as 26 years with an effective age of 1-5 years. The

2496Form 1004, therefore, presented a one year error as to actual

2507age, which is insignificant. The allegation is that Respondents

2516failed to explain the range of effective age dates. However, it

2527is found that the Form 1004 adequately informs anyone reading

2537it. Accordingly, this factual allegation is not proven.

2545H) "Failure to make an adjustment or provide an

2554explanation for no adjustment on comparable sale 1 for its

2564effective age difference."

2567No evidence supporting this allegation was presented. The

2575unrebutted testimony of Ms. Moody, adopted by Ms. Green, was

2585that there was no market data suggesting that there was a need

2597for adjustment. There was no evidence that an explanation for

2607no adjustment was required. Accordingly, this factual

2614allegation is not proven.

2618I) "Incorrect site size adjustment for comparable

2625sale 1; the $17,000 should be in the positive direction."

2636The site size adjustment for Comparable Sale 1 is in the

2647amount of $40,000. It appears that the intentions of the

2658Administrative Complaints were to allege an error in gross

2667living area. The result is that the record provides no proof of

2679this allegation.

2681J) "Adjustment for both the room count and square

2690footage, without explanation of its necessity or market support

2699of its accuracy, for comparable sale 1."

2706The Division's expert found this to be inconsequential.

2714There was no proof adduced indicating that this was a violation

2725of any standard.

2728K) "Incorrect actual age for comparable sale 1."

2736In the case of Comparable Sale 1, it was built in 1980 and

2749last sold in August 2005. Respondents reported the age in 2007

2760as 26 years with an effective age of 1-5. The Form 1004

2772therefore presented a one-year error. This error is

2780insignificant.

2781L) "Failure to explain inconsistent site size

2788adjustments made to comparable sale 1, comparable sale 2, and

2798comparable sale 3."

2801The subject property was located on a site (or lot) that

2812was .3 acres. Comparable Sale 1 was located on a site that was

2825.52 acres. Respondents subtracted $40,000 from the sale price

2835of Comparable Sale 1. Comparable Sale 2 was located on a site

2847that was .7 acres. Respondents subtracted $60,000 from the sale

2858price of Comparable Sale 2. Comparable Sale 3 was located on a

2870site that was .44 acres. Respondents added $25,000 to the sale

2882price of Comparable Sale 3. It is the appraiser's duty to value

2894a comparable in such a way that differences between the

2904comparable and the subject property are accounted so that a

2914common denominator may be found. For example, Comparable Sale 1

2924was approximately .2 of an acre larger than the subject property

2935and thus more valuable solely because it is on a larger site.

2947To equalize the situation, the price of Comparable Sale 1 must

2958be reduced, and it was. Comparable Sale 2 also was reduced, but

2970Comparable Sale 3 that was on a larger lot than the subject

2982property, was credited with a $25,000 addition to its price.

2993Nothing in Respondents' work file provides how the figures for

3003the comparables were found. Moreover, if two of the comparables

3013experienced a downward adjustment because of a larger lot size,

3023then the third comparable, having a larger lot size, should have

3034been adjusted downward also. Therefore, there were

3041inconsistencies requiring explanation, and no explanation was

3048found in the file.

3052M) "Failure to note that comparable sale 1 has a

3062fireplace."

3063The Division's expert witness said that the failure to

3072adjust for the fireplaces was of no consequence. No evidence

3082was adduced to demonstrate that the failure to adjust for

3092fireplaces was necessary. Accordingly, this factual allegation

3099was not proven.

3102N) "Failure to make an adjustment or provide an

3111explanation for no adjustment on comparable sale 1 for its

3121fireplace."

3122The Division's expert witness said that the failure to

3131adjust for the fireplaces was of no consequence. No evidence

3141was adduced to demonstrate that the failure to adjust for

3151fireplaces was necessary. Accordingly, this factual allegation

3158was not proven.

3161O) "Incorrect actual age for comparable sale 2."

3169Comparable Sale 2 was built in 1990. At the time of the

3181appraisal, it was approximately 17 years old. It last sold

3191November 2006. It was reported to be 16 years of age with an

3204effective age of five years on the Form 1004. This is both

3216incorrect and insignificant.

3219P) "Adjustment for both room count and square

3227footage, without explanation of its necessity or market support

3236of its accuracy, for comparable sale 2."

3243The Division's expert found this to be inconsequential.

3251There was no proof adduced indicating that this was a violation

3262of any standard.

3265Q) "Incorrect actual age for comparable sale 2."

3273This allegation repeats that stated in "O" above.

3281R) "Failure to not [sic] that comparable sale 2 has

3291three fireplaces."

3293The Division's expert witness said that the failure to

3302adjust for the fireplaces was of no consequence. No evidence

3312was adduced to demonstrate that the failure to adjust for

3322fireplaces was necessary. Accordingly, this allegation was not

3330proven.

3331S) "Failure to make an adjustment or provide an

3340explanation for no adjustment on comparable sale 2 for its

3350multiple fireplaces."

3352The Division's expert witness said that the failure to

3361adjust for the fireplaces was of no consequence. No evidence

3371was adduced to demonstrate that the failure to adjust for

3381fireplaces was necessary. Accordingly, this allegation was not

3389proven.

3390T) "Failure to make an adjustment or provide an

3399explanation for no adjustment on comparable sale 2 for its lake

3410view."

3411Comparable Sale 2 is located on Star Lake, a lagoon-like

3421body of water with access to open water, similar to the location

3433of the appraised property, which is on a canal with access to

3445open water on Big Lagoon. The views on these properties are

3456sufficiently similar that no adjustment is required. This

3464allegation was not proven.

3468U) "Incorrect actual age of comparable sale 3."

3476Comparable Sale 3 was built in 1989. At the time of the

3488appraisal, it was approximately 18 years old. It last sold in

3499August of 2005. It was reported to be 16 years of age with an

3513effective age of 10 years on the Form 1004. This age was

3525reported incorrectly.

3527V) "Use of comparable sale 3 which sold 19 months

3537prior to the Report."

3541The Form 1004 noted that finding comparables was difficult

3550due to market disruption caused by Hurricane Ivan. As noted by

3561Ms. Storm, the change in the real estate market during the years

35732004, 2005, and 2006, have been profound everywhere. Primarily,

3582market prices have declined during those years. She was of the

3593opinion that the August 18, 2005, sale date of Comparable Sale 3

3605was too remote. She stated, correctly, that a market condition

3615adjustment should have been made to the price reported for

3625Comparable Sale 3. Ms. Storm found in the work file analyst

3636listings of the comparables that were utilized, and pages from

3646the Marshall and Swift, but did not see any actual paired sale

3658analyses for any of the adjustments that were used in the

3669report. She could not determine from where they obtained these

3679sales and the adjustments for differences. She opined that this

3689made the report less credible. According to Ms. Storm, the

3699insufficient analysis runs afoul of USPAP. The opinion of Ms.

3709Storm, however, fails to take into account the insufficient data

3719in the Pensacola area that resulted from hurricane-induced

3727market disruption and the consequent lack of sales. Because of

3737the lack of viable alternatives, using this property as a

3747comparable was necessary. This factual allegation was not

3755proven.

3756W) "Adjustment for both room count and square

3764footage, without explanation of its necessity or market support

3773of its accuracy, for comparable sale 3."

3780The Division's expert found this to be inconsequential.

3788There was no proof adduced indicating that this was a violation

3799of any standard.

3802X) "Failure to calculate and list the net adjustment

3811and gross adjustment totals for comparable sale 1, comparable

3820sale 2, and comparable sale 3."

3826The Division's expert found this to be inconsequential.

3834There was no proof adduced indicating that this was a violation

3845of any standard.

3848Y) "Failure to utilize current Marshall & Swift

3856information for the Cost Approach section of the Report."

3865Marshall and Swift is a reference service that is used to

3876develop information in the cost approach analysis. It provides

"3885local multipliers" to provide for cost differentials in various

3894geographic areas, including differentials for garages and

3901two-story houses. It also provides "local multipliers" for the

3910cost per square foot for construction. The pages used by

3920Respondents expired at the end of February 2007, eight days

3930before the Form 1004 issued. Respondents receive quarterly

3938updates. The issue after February 2007 showed no change. To

3948the extent Respondents failed to get the most current

3957information, it had no impact on the appraisal amount.

3966Z) "Failure to complete the PUD information section

3974of the Report, when Subject Property, as noted by Respondent in

3985Report, is located in a PUD."

3991The Division acknowledged during the hearing that there was

4000no support for this allegation, and withdrew it.

4008AA) "Failure to date when Respondent inspected the

4016Subject Property and comparable sales listed in the Report."

4025(This allegation was made in the case of Ms. Green, but not in

4038the case of Ms. Moody.)

4043In the blocks on the Form 1004, below the Supervisory

4053Appraiser's signature, Ms. Green signed statements indicating

4060that she inspected the interior and exterior of the subject

4070property and that she inspected the exterior of the comparable

4080sales properties. She did not date either of these statements.

40907. There is no documentation in the work file to support

4101the $40,000 "site size" adjustment made to comparable sale 1 in

4113the Sales Comparison section of the Report.

4120Respondents' work file, attached as Exhibit 1 to the

4129Administrative Complaints, does not contain documentation for

4136this adjustment to the "site size" of Comparable Sale 1.

41468. There is no documentation in the work file to support

4157the $60,000 "site size" adjustment made to comparable sale 2 in

4169the Sales Comparison section of the Report.

4176Respondents' work file, attached as Exhibit 1 to the

4185Administrative Complaints, does not contain documentation for

4192this adjustment to the "site size" of Comparable Sale 2.

42029. There is no documentation in the work file to support

4213the $25,000 "site size" adjustment made to comparable sale 3 in

4225the Sales Comparison section of the Report.

4232Respondents' work file, attached as Exhibit 1 to the

4241Administrative Complaints, does not contain documentation for

4248this adjustment to the "site size" of Comparable Sale 3.

425810. There is no documentation in the work file to support

4269the $50,000 "view" adjustment made to comparable sale 1 in the

4281Sales Comparison section of the Report.

4287Comparable Sale 1 is on Big River. The Form 1004 notes

4298that Big River is similar to Big Lagoon. A $50,000 downward

4310adjustment was made in the "view" category. Ms. Storm stated

4320that she had searched for documentation and did not find it.

4331The work file does not have documentary support for the

4341adjustments. Respondents and Ms. Storm agreed that the lack of

4351sales in the area made such adjustments like this problematic.

4361As Ms. Storm said, "I know there haven't been that many sales of

4374waterfronts so it's really difficult to arrive at that data."

4384Nevertheless, the lack of any information in the work file to

4395support the adjustment means that this factual allegation is

4404proven.

440511. There is no documentation in the work file to support

4416the $5,000 "age" adjustment made to comparable sale 2 in the

4428Sales Comparison section of the Report.

4434Respondents' work file, attached as Exhibit 1 to the

4443Administrative Complaints, does not contain documentation for

4450this adjustment to the "age" of Comparable Sale 2.

445912. There is no documentation in the work file to support

4470the $10,000 "age" adjustment made to comparable sale 3 in the

4482Sales Comparison section of the Report.

4488Respondents' work file, attached as Exhibit 1 to the

4497Administrative Complaints, does not contain documentation for

4504this adjustment to the "age" of Comparable Sale 3.

451313. There is no documentation in the work file to support

4524the $3,000 "triple garage" adjustment made to comparable sale 3

4535in the Sales Comparison section of the Report.

4543A downward adjustment of $3,000 was made to Comparable Sale

45543 because of its triple garage. No testimony supporting this

4564allegation was presented. Respondents' work file, attached as

4572Exhibit 1 to the Administrative Complaints, includes Marshall

4580and Swift data for garages. Although exactly how the $3,000

4591adjustment was calculated is not clear, the Marshall and Swift

4601information was in the file and provided a method for making the

4613calculation.

461414. There is no documentation in the work file to support

4625the $10,000 "dock/pier" adjustment made to comparable sale 1 in

4636the Sales Comparison section of the Report.

4643A downward adjustment of $10,000 was made to Comparable

4653Sale 1 because of the presence of a "dock/pier." No testimony

4664supporting this allegation was presented. Respondents' work

4671file, attached as Exhibit 1 to the Administrative Complaints,

4680does not contain documentation for this adjustment.

468715. There is no documentation in the work file to support

4698the $15,000 "pool" adjustment made to comparable sale 2 in the

4710Sales Comparison section of the Report.

4716A downward adjustment of $15,000 was made to Comparable

4726Sale 2 because of the presence of a pool on the property. No

4739testimony supporting this allegation was presented.

4745Respondents' work file, attached as Exhibit 1 to the

4754Administrative Complaints, does not contain documentation for

4761this adjustment.

476316. There is no documentation in the work file to support

4774the $39/square foot adjustment for gross living area made to

4784comparable sale 1, comparable sale 2, and comparable sale 3 in

4795the Sales Comparison section of the Report.

4802No testimony supporting this allegation was presented. The

4810Division has not directed the attention of the Administrative

4819Law Judge to any reference in the record to a "$39/square foot

4831adjustment for gross living area." An independent search of

4840Respondents' work file, attached as Exhibit 1 to the

4849Administrative Complaints, did not reveal documentation for this

4857adjustment or any documentation mentioning it. Accordingly,

4864this allegation is not proven.

486917. The work file lacks current Marshall and Swift pages

4879for the time frame that the Reports were completed, as well as

4891any local builder information, to justify the dwelling square

4900footage price in the Cost Approach section of the Report.

4910Marshall and Swift is a reference service that is used to

4921develop information for use in the cost approach. It provides

"4931local multipliers" to provide for cost differentials in various

4940geographic areas, including differentials for garages and

4947two-story houses. It also provides information used to

4955calculate the construction cost per square foot. The pages used

4965by Respondents expired at the end of February 2007, eight days

4976before the report issued. Respondents receive quarterly

4983updates. The issue subsequent to February 2007 showed no

4992change. To the extent Respondents failed to get the most

5002current information, it had no impact on the appraisal amount.

501218. The work file lacks any documentation to support the

5022$30,000 As-Is Value of Site Improvements adjustment in the Cost

5033Approach section of the Report.

5038As-is value of site improvements adjustment, in the cost

5047approach section, is a positive value of $30,000. There is no

5059explanation in the record as to what an "as-is value of site

5071improvements adjustment" is or from what source came the $30,000

5082value.

508319. The work file lacks any documentation to support the

5093$60,000 Porches/Appliances adjustment in the Cost Approach

5101section of the Report

5105Respondents' work file, attached as Exhibit 1 to the

5114Administrative Complaints, contains Marshall and Swift

5120information for porches and appliances. Thus, documentation is

5128present.

5129CONCLUSIONS OF LAW

513214. The Division of Administrative Hearings has

5139jurisdiction over the subject matter of and the parties to this

5150proceeding. § 120.57(1), Fla. Stat. (2008).

515615. As a disciplinary statute, Section 475.624, Florida

5164Statutes "must be construed strictly, in favor of the one

5174against whom the penalty would be imposed." Munch v. Department

5184of Professional Regulation, Div. of Real Estate , 592 So. 2d

51941136, 1143 (Fla. 1st DCA 1992).

520016. Agencies seeking disciplinary actions against licenses

5207must prove the factual allegations by clear and convincing

5216evidence. Department of Bank. and Fin., Div. of Securities &

5226Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932,

5237933 (Fla. 1996) and Subsection 120.57(1)(j), Florida Statutes

5245(2008).

524617. Clear and convincing evidence "requires more proof

5254than a 'preponderance of the evidence' but the [sic] less than

5265'beyond and to the exclusion of a reasonable doubt.'" In re

5276Graziano , 696 So. 2d 744, 753 (Fla. 1997). It is an

"5287intermediate standard." Id. For proof to be considered

"5295'clear and convincing' . . . the evidence must be found to be

5308credible; the facts to which the witnesses testify must be

5318distinctly remembered; the testimony must be precise and

5326explicit; and the witnesses must be lacking in confusion as to

5337the facts in issue. The evidence must be of such weight that it

5350produces in the mind of the trier of fact a firm belief or

5363conviction, without hesitancy, as to the truth of the

5372allegations sought to be established." In re Davey , 645 So. 2d

5383398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

5393Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

540318. In determining whether Petitioner has met its burden

5412of proof, it is necessary to evaluate its evidentiary

5421presentation in light of the specific allegations of wrongdoing

5430made in the charging instrument. Due process prohibits the

5439Board from taking disciplinary action against a licensee based

5448on conduct not specifically alleged in the charging instrument,

5457unless those matters have been tried by consent. See Aldrete v.

5468Department of Health, Board of Medicine , 879 So. 2d 1244, 1246

5479(Fla. 1st DCA 2004); Shore Village Property Owners' Association,

5488Inc., et al. v. Department of Environmental Protection, et al. ,

5498824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Delk v. Department

5511of Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

55221992).

552319. Furthermore, "the conduct proved must legally fall

5531within the statute or rule claimed [in the charging instrument]

5541to have been violated." Delk , 595 So. 2d at 967. In deciding

5553whether "the statute or rule claimed [in the charging

5562instrument] to have been violated" was in fact violated, as

5572alleged by Petitioner, if there is any reasonable doubt, that

5582doubt must be resolved in favor of the licensee.

559120. The following factual allegations were proven by clear

5600and convincing evidence: 6L, 6U, 6AA, 7, 8, 9, 10, 11, 12, 14,

561315, and 18.

561621. Section 475.624, Florida Statutes, provides in part as

5625follows:

5626475.624 Discipline.--The board may deny an

5632application for registration or

5636certification; may investigate the actions

5641of any appraiser registered, licensed, or

5647certified under this part; may reprimand or

5654impose an administrative fine not to exceed

5661$5,000 for each count or separate offense

5669against any such appraiser; and may revoke

5676or suspend, for a period not to exceed 10

5685years, the registration, license, or

5690certification of any such appraiser, or

5696place any such appraiser on probation, if it

5704finds that the registered trainee, licensee,

5710or certificateholder:

5712* * *

5715(2) Has been guilty of fraud,

5721misrepresentation, concealment, false

5724promises, false pretenses, dishonest

5728conduct, culpable negligence, or breach of

5734trust in any business transaction in this

5741state or any other state, nation, or

5748territory; has violated a duty imposed upon

5755her or him by law or by the terms of a

5766contract, whether written, oral, express, or

5772implied, in an appraisal assignment; has

5778aided, assisted, or conspired with any other

5785person engaged in any such misconduct and in

5793furtherance thereof; or has formed an

5799intent, design, or scheme to engage in such

5807misconduct and committed an overt act in

5814furtherance of such intent, design, or

5820scheme. It is immaterial to the guilt of

5828the registered trainee, licensee, or

5833certificateholder that the victim or

5838intended victim of the misconduct has

5844sustained no damage or loss; that the damage

5852or loss has been settled and paid after

5860discovery of the misconduct; or that such

5867victim or intended victim was a customer or

5875a person in confidential relation with the

5882registered trainee, licensee, or

5886certificateholder, or was an identified

5891member of the general public.

5896* * *

5899(4) Has violated any of the provisions of

5907this part or any lawful order or rule issued

5916under the provisions of this part or chapter

5924455.

5925* * *

5928(14) Has violated any standard for the

5935development or communication of a real

5941estate appraisal or other provision of the

5948Uniform Standards of Professional Appraisal

5953Practice.

5954(15) Has failed or refused to exercise

5961reasonable diligence in developing an

5966appraisal or preparing an appraisal report.

5972* * *

597522. Section 475.629, Florida Statutes, provides as

5982follows:

5983475.629 Retention of records.--An appraiser

5988registered, licensed, or certified under

5993this part shall retain, for at least 5

6001years, original or true copies of any

6008contracts engaging the appraiser's services,

6013appraisal reports, and supporting data

6018assembled and formulated by the appraiser in

6025preparing appraisal reports. The period for

6031retention of the records applicable to each

6038engagement of the services of the appraiser

6045runs from the date of the submission of the

6054appraisal report to the client. These

6060records must be made available by the

6067appraiser for inspection and copying by the

6074department on reasonable notice to the

6080appraiser. If an appraisal has been the

6087subject of or has served as evidence for

6095litigation, reports and records must be

6101retained for at least 2 years after the

6109trial.

611023. Count I of the Administrative Complaints alleges that

6119Respondents failed to exercise reasonable diligence in

6126developing an appraisal report in violation of Subsection

6134475.624(15), Florida Statutes.

613724. "There is no statute, rule, or USPAP standard that

6147defines ' reasonable diligence. ' " Department of Business and

6156Professional Regulation, Division of Real Estate v. Guilfoyle ,

6164Case No. 07-0683PL (DOAH August 22, 2007). It was therefore

6174incumbent upon the Division, in order to meet its burden of

6185proving that Respondents deviated from the required standard of

6194diligence in violation of Subsection 475.624(15), Florida

6201Statutes , to present "competent evidence . . . from a person

6212with sufficient insight into what constitutes reasonable

6219diligence on the part of a certified real estate appraiser when

6230developing an appraisal or in preparing an appraisal report"

6239under the circumstances that Respondents faced in the instant

6248case. Department of Business and Professional Regulation ,

6255Division of Real Estate v. Harrison , Case No. 06-3387PL (DOAH

6265May 30, 2007); Department of Business and Professional

6273Regulation, Division of Real Estate v. Catchpole , Case

6281No. 06-3389PL (DOAH May 30, 2007); and Department of Business

6291and Professional Regulation, Division of Real Estate v. Price ,

6300Case No. 06-3720PL (DOAH May 3, 2007). See also McDonald v.

6311Department of Professional Regulation , 582 So. 2d 660, 670

6320(Zehmer, J., specially concurring), citing Purvis v. Department

6328of Professional Regulation , 461 So. 2d 134 (Fla. 1st DCA 1984)

6339("[W]here the agency charges negligent violation of general

6348standards of professional conduct, i.e. , the negligent failure

6356to exercise the degree of care reasonably expected of a

6366professional, the agency must present expert testimony that

6374proves the required professional conduct as well as the

6383deviation therefrom.").

638625. Neither expert was competent to provide sufficient

6394insight into what constitutes reasonable diligence. Ms. Storm

6402opined that Respondents failed to be reasonably diligent in two

6412different areas, analyzing the sales contract and the failure to

6422discuss the difference between the sales price and the appraisal

6432price. Mr. Harrison found Respondents used reasonable diligence

6440throughout their efforts. The Division did not demonstrate that

6449Respondents failed or refused to exercise reasonable diligence

6457in developing an appraisal or preparing an appraisal report.

6466Count I should be dismissed.

647126. Count II of the Administrative Complaints alleges that

6480Respondents were guilty of a failure to retain records for at

6491least five years of any contracts engaging the appraisers'

6500services, appraisal reports, and supporting data assembled and

6508formulated by the appraiser in preparing appraisal reports in

6517violation of Section 475.629, Florida Statutes, and therefore,

6525in violation of Subsection 475.624(4), Florida Statutes.

653227. The time period for retention of appraisal and

6541supporting documents, according to Section 475.629, Florida

6548Statutes, "runs from the date of the submission of the appraisal

6559report to the client." Because this must have occurred after

6569the date appearing on the cover of the appraisal report, which

6580was March 8, 2007, five years has not yet passed. Section

6591475.629, Florida Statutes, does not address the quality or

6600completeness of the work file. It only addresses the retention

6610period of the file. Accordingly, Count II should be dismissed.

662028. Count III alleges that Respondents engaged in

6628misrepresentation, culpable negligence, or breach of trust in

6636any business transaction in violation of Subsection 475.624(2),

6644Florida Statutes.

664629. "An intentional act must be established before a

6655violation of the . . . statute proscribing . . .,

6666misrepresentation, . . . culpable negligence, or breach of trust

6676in a business transaction may be established." See Munch v.

6686Department of Professional Regulation, Division of Real Estate ,

6694592 So. 2d. 1136 (Fla. 1st DCA 1992). It must be determined,

6706therefore, whether the Respondents' actions rise to that level

6715of intentional conduct necessary to prove a violation of this

6725subsection. No such proof was provided. See also Department

6734of Professional Regulation, Florida Real Estate Commission v.

6742James J. Baruch , Case No. 81-2398 (DOAH 1982). Count III should

6753be dismissed.

675530. Count IV of the Administrative Complaints alleged a

6764violation of a standard for the development or communication of

6774a real estate appraisal, specifically the Conduct Section of the

6784Ethics Rule, or other provision of the USPAP in violation of

6795Subsection 475.624(14), Florida Statutes.

679931. The USPAP is a set of guidelines established for

6809property appraisals by the Appraisals Standards Board. It has

6818the effect of law in Florida. The Division urges, through its

6829Proposed Recommended Order, that Respondents violated the part

6837of the Conduct Section that recites, "An appraiser must not

6847communicate assignment results in a misleading or fraudulent

6855manner. An appraiser must not use or communicate a misleading

6865or fraudulent report or knowingly permit an employee or other

6875person to communicate a misleading or fraudulent report."

688332. The Division asserts that Respondents violated this

6891admonition in a number of instances. Proof of only two of the

6903matters listed was established by the evidence: a failure to

6913support the adjustments made in the sales comparison approach

6922and cost approach section of the appraisal report and the

6932failure of Ms. Green to note the date she inspected the subject

6944property and the comparable sales listed in the appraisal

6953report.

695433. The failure to support the adjustments made in the

6964sales price was an error of omission that did not mislead. The

6976adjustments made were clearly set forth in Form 1004 although

6986there was no evidence on the Form 1004 or the work file as to

7000how Respondents arrived at the figures. In the case of the site

7012size adjustments, there was a clear error as demonstrated by the

7023inconsistency between adjustments. The failure to support the

7031adjustments cannot be deemed fraudulent because an element of

7040fraud is intent, and there was no proof in the record that

7052Respondents intended to misrepresent any fact. The failure to

7061provide the date of inspections did not mislead or defraud

7071anyone. Count IV should be dismissed.

707734. Count V alleged that Respondents violated the Record

7086Keeping Section of the USPAP Ethics Rule. It is recited in its

7098entirety below:

7100An appraiser must prepare a workfile

7106for each appraisal, appraisal review, or

7112appraisal consulting assignment. The

7116workfile must include:

7119the name of the client and the

7126identity, by name or type, of any other

7134intended users;

7136true copies of any written reports,

7142documented on any type of media;

7148summaries of any oral reports or

7154testimony, or a transcript of testimony,

7160including the appraiser's signed and dated

7166certification; and

7168all other data, information, and

7173documentation necessary to support the

7178appraiser's opinions and conclusions and to

7184show compliance with this Rule and all other

7192applicable Standards, or references to the

7198location(s) of such other documentation.

7203An appraiser must retain the workfile for a

7211period of at least five (5) years after

7219preparation or at least two (2) years after

7227final disposition of any judicial proceeding

7233in which the appraiser provided testimony

7239related to the assignment, whichever period

7245expires last.

7247An appraiser must have custody of his or her

7256workfile, or make appropriate workfile

7261retention, access, and retrieval

7265arrangements with the party having custody

7271of the workfile.

727435. Respondents failed to maintain all data necessary to

7283support the adjustments made to the comparable sales, and in one

7294case, the cost adjustment in the cost approach. The comment

7304section to this Standard recites as follows: "A workfile

7313supplies evidence of the appraiser's consideration of all

7321applicable data and statements required by USPAP and other

7330information as may be required to support the appraiser's

7339opinions, conclusions, and recommendations." Clearly, the

7345purpose of the rule is to preserve data so that in cases such as

7359this one, evidence can be produced that demonstrates how figures

7369were generated. Proof of allegations of fact 7, 8, 9, 10, 11,

738112, 14, 15, and 18 coupled with the requirements of the USPAP

7393Ethics Record Keeping Rule require finding Respondents guilty of

7402Count V.

740436. Count VI alleged that Respondents violated Standards

7412Rule 1-1(c) that provides that an appraiser must "not render

7422appraisal services in a careless or negligent manner, such as by

7433making a series of errors that, although individually might not

7443significantly affect the results of an appraisal, in the

7452aggregate affects the credibility of those results." The

7460comment to the section notes: "Perfection is impossible to

7469attain, and competence does not require perfection. However, an

7478appraiser must not render appraisal services in a careless or

7488negligent manner. This Standards Rule requires an appraiser to

7497use due diligence and due care."

750337. To the extent there were some errors in the appraisal

7514report they were not serious. Respondents were engaged in

7523making an appraisal in a difficult market environment that had

7533experienced disruption caused by a hurricane and a serious

7542decline in demand, and, therefore, price for waterfront

7550properties. The appraisal report and the extensive work file

7559indicate Respondents' due diligence and due care. Count VI

7568should be dismissed.

757138. Count VII alleged that Respondents violated Standards

7579Rule 2-1(a) and (b), or other provision of the USPAP in

7590violation of Subsection 475.624(14), Florida Statutes.

7596Standards Rule 2-1(a) and (b) state that, "Each written or oral

7607real property appraisal report must: (a) clearly and accurately

7616set forth the appraisal in a manner that will not be misleading;

7628(b) contain sufficient information to enable the intended users

7637of the appraisal to understand the report properly; . . . ."

7649These standards address the appraisal report, not the work file.

7659The appraisal report was not at all misleading and it contained

7670sufficient information for the intended users to understand the

7679report. Count VI should be dismissed.

768539. Count VIII alleged that Respondents violated Standards

7693Rule 2-2(b)(viii), in violation of Subsection 475.624(14),

7700Florida Statutes. The pertinent part of this Rule states:

7709(b) The content of a Summary Appraisal

7716Report must be consistent with the intended

7723use of the appraisal and, at a minimum:

7731* * *

7734(viii) summarize the information analyzed,

7739the appraisal methods and techniques

7744employed, and the reasoning that supports

7750the analyses, opinions, and conclusions;

7755exclusion of the sales comparison approach,

7761cost approach, or income approach must be

7768explained; . . . .

7773* * *

777640. This rule refers to the content of the Summary

7786Appraisal Report, not the work file. The report adequately

7795summarized the information analyzed; the appraisal methods and

7803techniques employed; and the reasoning that supports the

7811analyses, opinions, and conclusions. It used the sales

7819comparison approach and cost approach and noted, with regard to

7829the income approach, "The income approach to value has not been

7840used due to its limited utility when appraising single family

7850homes." Count VIII should be dismissed.

785641. The legislature has directed the regulatory boards

7864falling under the Department of Business and Professional

7872Regulation's jurisdiction to promulgate rules specifying the

7879penalties that can be imposed for statutory offenses.

7887Section 455.2273, Florida Statutes, provides:

7892(1) Each board, or the department when

7899there is no board, shall adopt, by rule, and

7908periodically review the disciplinary

7912guidelines applicable to each ground for

7918disciplinary action which may be imposed by

7925the board, or the department when there is

7933no board, pursuant to this chapter, the

7940respective practice acts, and any rule of

7947the board or department.

7951(2) The disciplinary guidelines shall

7956specify a meaningful range of designated

7962penalties based upon the severity and

7968repetition of specific offenses, it being

7974the legislative intent that minor violations

7980be distinguished from those which endanger

7986the public health, safety, or welfare; that

7993such guidelines provide reasonable and

7998meaningful notice to the public of likely

8005penalties which may be imposed for

8011proscribed conduct; and that such penalties

8017be consistently applied by the board.

8023(3) A specific finding of mitigating or

8030aggravating circumstances shall allow the

8035board to impose a penalty other than that

8043provided for in such guidelines. If

8049applicable, the board, or the department

8055when there is no board, shall adopt by rule

8064disciplinary guidelines to designate

8068possible mitigating and aggravating

8072circumstances and the variation and range of

8079penalties permitted for such circumstances.

8084(4) The department must review such

8090disciplinary guidelines for compliance with

8095the legislative intent as set forth herein

8102to determine whether the guidelines

8107establish a meaningful range of penalties

8113and may also challenge such rules pursuant

8120to s. 120.56.

8123(5) The administrative law judge, in

8129recommending penalties in any recommended

8134order, must follow the penalty guidelines

8140established by the board or department and

8147must state in writing the mitigating or

8154aggravating circumstances upon which the

8159recommended penalty is based.

816342. Florida Administrative Code Rule 61J1-8.002(1)

8169provides, in part, as follows:

817461J1-8.002 Disciplinary Guidelines.

8177(1) Pursuant to Section 455.2273, F.S., the

8184Florida Real Estate Appraisal Board sets

8190forth below a range of disciplinary

8196guidelines from which disciplinary penalties

8201will be imposed upon licensees guilty of

8208violating Chapter 455 or Part II, Chapter

8215475, F.S. (For purposes of this rule, the

8223term licensee shall refer to registrants,

8229license holders or certificate holders.)

8234The purpose of the disciplinary guidelines

8240is to give notice to licensees of the range

8249of penalties which normally will be imposed

8256for each count during a formal or an

8264informal hearing. For purposes of this

8270rule, the order of penalties, ranging from

8277lowest to highest, is: reprimand, fine,

8283probation, suspension, and revocation or

8288denial. Pursuant to Section 475.624, F.S.,

8294combinations of these penalties are

8299permissible by law. Nothing in this rule

8306shall preclude any discipline imposed upon a

8313licensee pursuant to a stipulation or

8319settlement agreement, nor shall the ranges

8325of penalties set forth in this rule preclude

8333the probable cause panel from issuing a

8340letter of guidance upon a finding of

8347probable cause, where appropriate.

8351* * *

835443. Florida Administrative Code Rule 61J1-8.002(3)(q)

8360provides that for a violation of Subsection 475.624(14), Florida

8369Statutes: "The usual action of the Board shall be to impose a

8381penalty from a 5-year suspension to revocation and an

8390administrative fine of $1,000." Upon consideration of the facts

8400of this case, a reprimand, which is the lowest possible penalty,

8411should be imposed.

8414RECOMMENDATION

8415RECOMMENDED that the Florida Real Estate Appraisal Board

8423find Respondents guilty of violating Subsection 475.624(14),

8430Florida Statutes, by failing to document adjustments made to

8439comparable sales and reprimand Respondents.

8444DONE AND ENTERED this 27th day of January, 2009, in

8454Tallahassee, Leon County, Florida.

8458S

8459HARRY L. HOOPER

8462Administrative Law Judge

8465Division of Administrative Hearings

8469The DeSoto Building

84721230 Apalachee Parkway

8475Tallahassee, Florida 32399-3060

8478(850) 488-9675

8480Fax Filing (850) 921-6847

8484www.doah.state.fl.us

8485Filed with the Clerk of the

8491Division of Administrative Hearings

8495this 27th day of January, 2009.

8501COPIES FURNISHED :

8504Thomas M. Brady, Esquire

85083250 Navy Boulevard, Suite 204

8513Post Office Box 12584

8517Pensacola, Florida 32591-2584

8520Robert Minarcin, Esquire

8523Department of Business &

8527Professional Regulation

8529400 West Robinson Street, N801

8534Orlando, Florida 32801-1757

8537Ned Luczynski, General Counsel

8541Department of Business and

8545Professional Regulation

8547Northwood Centre

85491940 North Monroe Street

8553Tallahassee, Florida 32399-0792

8556Thomas W. O'Bryant, Jr., Director

8561Division of Real Estate

8565Department of Business and

8569Professional Regulation

8571400 West Robinson Street

8575Suite 802, North

8578Orlando, Florida 32801

8581Frank K. Gregoire, Chairman

8585Real Estate Appraisal Board

8589Department of Business and

8593Professional Regulation

8595400 West Robinson Street, Suite 801N

8601Orlando, Florida 32802-1900

8604NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

8610All parties have the right to submit written exceptions within

862015 days from the date of this Recommended Order. Any exceptions

8631to this Recommended Order should be filed with the agency that

8642will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/22/2011
Proceedings: Opinion filed.
PDF:
Date: 04/22/2011
Proceedings: Agency Amended Final Order on Remand filed.
PDF:
Date: 04/21/2011
Proceedings: Amended Agency FO
PDF:
Date: 11/17/2010
Proceedings: Opinion
PDF:
Date: 09/04/2009
Proceedings: Final Order filed.
PDF:
Date: 09/04/2009
Proceedings: Petitioner's Response to Respondents Kathleen Green's and Lee Ann Moody's Exceptions to the Recommended Order filed.
PDF:
Date: 09/04/2009
Proceedings: Petitioner's Exceptions to the Recommended Order filed.
PDF:
Date: 08/26/2009
Proceedings: Agency Final Order
PDF:
Date: 08/26/2009
Proceedings: Agency Final Order
PDF:
Date: 06/12/2009
Proceedings: (Florida Real Estate Appraisal Board's) Order Vacating Final Order and Granting Reconsideration filed.
PDF:
Date: 06/12/2009
Proceedings: Respondents' Notice of Filing a Copy of Florida Real Estate Appraisal Board's Order Vacating Final order and Granting Reconsideration rendered 6/10/2009, filed.
PDF:
Date: 05/18/2009
Proceedings: Motion for Reconsideration/Rehearing of Final Order Denying Respondents` Joint Amended Motion to Dismiss for Lack of Florida Real Estate Appraisal Board (FREAB) Quorum filed.
PDF:
Date: 05/18/2009
Proceedings: Motion for Reconsideration of Oral Order (decision) Denying Respondents` Joint Amended Motion to Dismiss for Lack of Florida Real Estate Appraisal Board (FREAB) Quorum filed.
PDF:
Date: 05/18/2009
Proceedings: (Respondent`s) Notice of Hearing filed.
PDF:
Date: 05/18/2009
Proceedings: Respondent`s Notice of Filing filed.
PDF:
Date: 05/14/2009
Proceedings: Petitioners` Joint Florida Statue 57.111 Motion for Attorney Fees/Costs filed. (DOAH CASE NO. 09-2585F AND 09-2586F ESTABLISHED)
PDF:
Date: 05/13/2009
Proceedings: Petitioner`s Response to Respondents Kathleen Green`s and Lee Ann Moody`s Exceptions to the Recommended Order filed.
PDF:
Date: 05/13/2009
Proceedings: Petitioner`s Exceptions to the Recommended Order filed.
PDF:
Date: 05/13/2009
Proceedings: Respondents` Joint Exceptions to DOAH`s Recommended Order filed.
PDF:
Date: 05/13/2009
Proceedings: Respondents` Response to Petitioner`s Exceptions to DOAH`s Recommended Order (RO) filed.
PDF:
Date: 05/13/2009
Proceedings: Final Order filed.
PDF:
Date: 01/27/2009
Proceedings: Recommended Order
PDF:
Date: 01/27/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/27/2009
Proceedings: Recommended Order (hearing held November 5, 2008). CASE CLOSED.
PDF:
Date: 01/06/2009
Proceedings: Order Granting Extension of Time.
PDF:
Date: 12/23/2008
Proceedings: Respondents` Motion for a Retroactive One Day Extension of Time to File their Proposed Recommended Order filed.
PDF:
Date: 12/23/2008
Proceedings: Respondent`s Proposed Consolidated Recommended Order filed.
PDF:
Date: 12/22/2008
Proceedings: Proposed Recommended Order filed.
PDF:
Date: 12/05/2008
Proceedings: Letter to Judge Hooper from E. Richbourg regarding correction to transcript filed.
PDF:
Date: 12/03/2008
Proceedings: Order Granting Extension of Time (proposed recommened orders to be filed by December 22, 2008).
PDF:
Date: 12/03/2008
Proceedings: Amended Motion for Extension of Time filed.
PDF:
Date: 12/03/2008
Proceedings: Motion for Extension of Time filed.
Date: 12/01/2008
Proceedings: Transcript filed.
PDF:
Date: 11/10/2008
Proceedings: Letter to Judge Hooper from T. Brady enclosing Respondent`s Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 11/10/2008
Proceedings: Petitioner Saurin C. Modi`s Motion and Petition for Attorney`s Fees and Costs Relating to Successful Rule Challenge filed.
Date: 11/05/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/03/2008
Proceedings: Order Denying in part, and Granting in part, Respondents` Amended Contingent Motion for Continuance of Formal Hearing.
PDF:
Date: 11/03/2008
Proceedings: Petitioner`s Objection to Respondent`s Motion to Continue filed.
PDF:
Date: 11/03/2008
Proceedings: Second Amended Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 11/03/2008
Proceedings: Respondents` Amended Contingent Motion for Continuance of Formal Hearing filed.
PDF:
Date: 11/03/2008
Proceedings: Respondents` Contingent Motion for Continuance of Formal Hearing filed.
PDF:
Date: 10/29/2008
Proceedings: Respondents` Joint Exhibits of Evidence for Formal Hearing (exhibits not available for viewing) filed.
PDF:
Date: 10/28/2008
Proceedings: Order Denying Respondents` Second Motion in Limine.
PDF:
Date: 10/28/2008
Proceedings: Order Denying Respondents` Motion in Limine.
PDF:
Date: 10/28/2008
Proceedings: Order Denying Respondent`s Motion to Dismiss (L. Ann Moody).
PDF:
Date: 10/28/2008
Proceedings: Order Denying Respondent`s Motion to Dismiss (K. Green).
PDF:
Date: 10/27/2008
Proceedings: Amendment to Respondents` List of Exhibits in Respondents` Second Amended Joint Input to Pre-hearing Stipulation filed.
PDF:
Date: 10/24/2008
Proceedings: Respondents` Second Amended Joint Input to Pre-hearing Stipulation filed.
PDF:
Date: 10/24/2008
Proceedings: Respondents` Second Motion in Limine filed.
PDF:
Date: 10/24/2008
Proceedings: Respondents` Motion in Limine filed.
PDF:
Date: 10/24/2008
Proceedings: Respondents` Request for Production of Documents, Aternatively, Notice to Produce at Formal Hearing filed.
PDF:
Date: 10/21/2008
Proceedings: Petitioner`s Notice of Taking Deposition by Telephone and to Use Depositions in Formal Hearing filed.
PDF:
Date: 10/09/2008
Proceedings: Order Denying Respondent`s Motion to Compel Petitioner to Answer their Request for Admission Numbers 8 and 9.
PDF:
Date: 10/06/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for November 5 and 6, 2008; 10:00 a.m., Central Time; Pensacola, FL).
PDF:
Date: 10/01/2008
Proceedings: Respondents` Joint Motion for a Continuance/Rescheduling of the Formal Hearing filed.
PDF:
Date: 10/01/2008
Proceedings: Respondents` Amended Joint Input to Pre-hearing Stipulation filed.
PDF:
Date: 10/01/2008
Proceedings: Respondents` Notice to Produce at Formal Hearing filed.
PDF:
Date: 10/01/2008
Proceedings: Respondents` Motion to Compel Petitioner to Respond to Request for Admissions ##8 and 9 filed.
PDF:
Date: 10/01/2008
Proceedings: Respondent`s (Kathleen Green) Florida Statute 57.105, Motion to Dismiss filed.
PDF:
Date: 10/01/2008
Proceedings: Respondent`s (Lee Ann Moody) Florida Statute 57.105, Motion to Dismiss filed.
PDF:
Date: 10/01/2008
Proceedings: Respondent`s Florida Statute 57.105 Motion to Dismiss filed.
PDF:
Date: 10/01/2008
Proceedings: Respondents` Notice of Filing, Motion to Dismiss filed.
PDF:
Date: 09/26/2008
Proceedings: Amended Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 09/25/2008
Proceedings: Notice of Unavailability filed.
PDF:
Date: 09/11/2008
Proceedings: Petitioner`s Response to Respondent`s First Request for Admissions filed.
PDF:
Date: 09/04/2008
Proceedings: Respondents` First Request for Admissions filed.
PDF:
Date: 09/04/2008
Proceedings: Order Granting Extension of Time (responses to any notices, motions, orders or other matters requiring or which allow a response to be filed by September 22, 2008).
PDF:
Date: 09/03/2008
Proceedings: Respondents` Contingent Motion for an Extension of Ttime to Respond to any Notices, Motions, Orders, or Other Matters Requiring or which Allow a Response filed.
PDF:
Date: 09/02/2008
Proceedings: Respondents` Response to Petitioner`s First Request for Production filed.
PDF:
Date: 09/01/2008
Proceedings: Respondents` Response to Petitioner`s First Request for Production filed.
PDF:
Date: 08/25/2008
Proceedings: Notice of Filing (Index to Petitioner`s Formal Hearing Exhibits, exhibits not available for viewing) filed.
PDF:
Date: 08/18/2008
Proceedings: Petitioner`s First Expert Interrogatories to Respondents Kathleen Green and Lee Ann Moody filed.
PDF:
Date: 08/18/2008
Proceedings: Petitioner`s First Request for Production filed.
PDF:
Date: 08/18/2008
Proceedings: Petitioner`s Response to Respondent`s Notice to Produce at Formal Hearing filed.
PDF:
Date: 08/18/2008
Proceedings: Notice of Filing (Petitioner`s First Expert Interrogatories to Respondents Kathleen Green and Lee Ann Moody) filed.
PDF:
Date: 08/18/2008
Proceedings: Notice of Filing (Petitioner`s First Request for Production) filed.
PDF:
Date: 08/18/2008
Proceedings: Notice of Filing (Petitioner`s Response to Respondent`s Notice to Produce at Formal Hearing) filed.
PDF:
Date: 08/11/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for October 15 and 16, 2008; 10:00 a.m., Central Time; Pensacola, FL).
PDF:
Date: 08/11/2008
Proceedings: Respondents` Joint Supplemental Input to Pre-hearing Stipulation filed.
PDF:
Date: 08/11/2008
Proceedings: Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 08/08/2008
Proceedings: Respondents` Joint Response to Petitioner`s Motion to Continue and Re-schedule Formal Hearingfiled.
PDF:
Date: 08/08/2008
Proceedings: Motion to Continue and Re-schedule Formal Hearing filed.
PDF:
Date: 08/08/2008
Proceedings: Respondents` Joint Input to Pre-hearing Stipulation filed.
PDF:
Date: 08/08/2008
Proceedings: Respondents` Notice to Produce at Formal Hearing filed.
PDF:
Date: 07/30/2008
Proceedings: Order Denying Respondents` Joint Motion to Dismiss the Administrative Complaints for Violation of Florida Statute 120.569(2)(a), (c).
PDF:
Date: 07/29/2008
Proceedings: Order Denying Respondents` Motion to Dismiss the Administrative Complaint for Failure to State a Cause of Action.
PDF:
Date: 07/29/2008
Proceedings: Notice of Transfer.
PDF:
Date: 07/28/2008
Proceedings: Respondent`s First Set of Interrogatories to Petitioner filed.
PDF:
Date: 07/28/2008
Proceedings: Respondent`s Third Notice of Filing filed.
PDF:
Date: 07/28/2008
Proceedings: Petitioner`s Response to Respondent`s First Interrogatories filed.
PDF:
Date: 07/28/2008
Proceedings: Respondent`s Request for Production of Documents filed.
PDF:
Date: 07/28/2008
Proceedings: Petitioner`s Response to Respondent`s First Request for Production filed.
PDF:
Date: 07/28/2008
Proceedings: Respondent`s Second Request for Production of Documents filed.
PDF:
Date: 07/28/2008
Proceedings: Petitioner`s Second Response to Respondent`s First Request for Production filed.
PDF:
Date: 07/28/2008
Proceedings: Petitioner`s Response to Respondent`s First Interrogatories filed.
PDF:
Date: 07/28/2008
Proceedings: Respondent`s Third Notice of Filing filed.
PDF:
Date: 07/22/2008
Proceedings: Respondent`s Second Notice of Filing filed.
PDF:
Date: 07/21/2008
Proceedings: Respondent`s Joint Motion to Dismiss the Administrative Complaint For Violation of Florida Statute 120.569(2)(a), (c) filed.
PDF:
Date: 07/17/2008
Proceedings: Respondent`s Motion to Dismiss the Administrative Complaint for Failure to State a Cause of Action filed.
PDF:
Date: 07/11/2008
Proceedings: Respondent`s Notice of Filing filed.
PDF:
Date: 07/11/2008
Proceedings: Respondent`s Notice of Filing filed.
PDF:
Date: 06/25/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/25/2008
Proceedings: Notice of Hearing (hearing set for August 19 and 20, 2008; 10:00 a.m., Central Time; Pensacola, FL).
PDF:
Date: 06/25/2008
Proceedings: Order of Consolidation (DOAH Case Nos. 08-2721PL and 08-2722PL).
PDF:
Date: 06/10/2008
Proceedings: Request for Hearing filed.
PDF:
Date: 06/09/2008
Proceedings: Initial Order.
PDF:
Date: 06/09/2008
Proceedings: Administrative Complaint filed.
PDF:
Date: 06/09/2008
Proceedings: Respondent`s Answer to Administrative Complaint filed.
PDF:
Date: 06/09/2008
Proceedings: Agency referral filed.

Case Information

Judge:
HARRY L. HOOPER
Date Filed:
06/09/2008
Date Assignment:
07/28/2008
Last Docket Entry:
04/22/2011
Location:
Pensacola, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related DOAH Cases(s) (7):

Related Florida Statute(s) (7):

Related Florida Rule(s) (1):