08-003271PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Cathy C. Pfeiffer Status: Closed Recommended Order on Tuesday, January 27, 2009.

Summary: Respondent failed to sign an appraisal as the supervising appraiser and stated that she had inspected the property when she had not done so. Mitigating circumstances are sufficient to reduce the penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 08-3271PL

)

CATHY C. PFEIFFER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on December 1, 2008, in Pensacola, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Minarcin, Esquire

Department of Business &

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801-1757

For Respondent: Cathy Pfeiffer, pro se

120 Mount Pilot Street

Cantonment, Florida 32533

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Subsections 475.624(14) and 475.624(15), Florida Statutes

(2005), 1 and if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On October 3, 2007, Petitioner, Department of Business and

Professional Regulation, Division of Real Estate (Department),

filed a ten-count Administrative Complaint against Respondent,

Cathy C. Pfeiffer (Ms. Pfeiffer), alleging that she had violated

Subsections 475.6221(2), 475.624(4), 475.624(2), 475.624(15),

and 475.624(14) and Section 475.6222, Florida Statutes, and

various provisions of the Uniform Standards of Professional

Appraisal Practice (USPAP) (2006). Ms. Pfeiffer requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on July 7, 2008, for

assignment of an Administrative Law Judge to conduct the final

hearing. The case was originally assigned to Administrative Law

Judge P. Michael Ruff, but was transferred to Administrative Law

Judge Susan B. Harrell to conduct the final hearing.

The final hearing was continued several times. On

November 18, 2008, Petitioner filed a Motion to Amend

Administrative Complaint, requesting that the references to the

USPAP be changed to the 2005 2 version rather than the 2006

version. At the final hearing, the motion was granted, and the

Amended Administrative Complaint was deemed filed as of

December 1, 2008.

At the final hearing, counsel for the Department stated

that the Department was withdrawing Counts I, II, III, VI, VII,

and VIII. Thus, the remaining counts in the Amended

Administrative Complaint at issue are Counts, IV, V, IX, and X.

At the final hearing, the Department called Diana Lynn Wood

and Paul Andrew Grimes as its witnesses. Petitioner’s

Exhibits 1 through 7 were admitted in evidence. Ms. Pfeiffer

testified in her own behalf and called Philip Miller and

John William Priller, Sr., as her witnesses. Respondent’s

Exhibits 1 through 6, 8 through 11, 14, and 15 were admitted in

evidence.

The one-volume Transcript was filed on January 5, 2009.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript. The parties

timely filed their Proposed Recommended Orders, which have been

considered in the writing of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Ms. Pfeiffer

was a certified residential appraiser licensed by the State of

Florida, License No. RD3059. She first became licensed in 1998.

2. On June 12, 2006, Ms. Pfeiffer accepted an assignment

from Diane Purser to appraise her home located in Gulf Breeze,

Florida. Mrs. Purser was in the midst of a divorce proceeding

with her husband Mark Purser and wanted to have the appraisal to

determine the market value of their home prior to a meeting with

her attorney. Mrs. Purser wanted the appraisal to be expedited.

3. Ms. Pfeiffer gave the appraisal assignment to Brian

Choron, who, at that time, was a registered trainee real estate

appraiser, License No. RI-10526. Ms. Pfeiffer was Mr. Choron’s

supervisor.

4. Mr. Choron went to Mrs. Purser’s home and physically

inspected the home while Mr. and Mrs. Purser were present.

5. Mr. Choron developed an appraisal report of the Purser

property. Mr. Choron extracted data from appraisals of other

property in the area in developing the report on the Purser

property. This is not an uncommon practice in the appraisal

profession.

6. Mr. Choron sent the appraisal report to Ms. Pfeiffer

for her review. Ms. Pfeiffer reviewed the report and sent it to

Mrs. Purser. Ms. Pfeiffer signed the appraisal on June 15,

2006, as the appraiser. Mr. Choron did not sign the appraisal.

7. By signing the appraisal report as the appraiser,

Ms. Pfeiffer certified, among other things, that she had

“performed a complete visual inspection of the interior and

exterior areas of the subject property.” Additionally, she

certified the following:

I personally prepared all conclusions and

opinions about the real estate that were set

forth in this appraisal report. If I relied

on significant real property appraisal

assistance from any individual or

individuals in the performance of this

appraisal or the preparation of the

appraisal report, I have named such

individual(s) and disclosed the specific

tasks performed in this appraisal report. I

certify that any individual so named is

qualified to perform the tasks. I have not

authorized anyone to make a change to any

item in this appraisal report; therefore,

any changes made to this appraisal is

unauthorized and I will take no

responsibility for it.

On page four 3 of the appraisal report, Ms. Pfeiffer stated:

“Brian Choron RI10526 assisted in the research, inspection,

preparation of this appraisal report.” On page 17 of the

appraisal report, Ms. Pfeiffer indicated that she had inspected

the property.

8. Ms. Pfeiffer admits that she incorrectly signed the

appraisal report as the appraiser, that she should have signed

as the supervisory appraiser, and that Mr. Choron should have

signed the appraisal report as the appraiser.

9. The appraisal report listed the effective date of the

appraisal as June 14, 2006. The final estimated value of the

Purser property was listed as $275,000.00.

10. Mr. Purser contacted Ms. Pfeiffer and was upset about

some discrepancies which he perceived to be in the appraisal

report. Ms. Pfeiffer and Mr. Choron developed a revised

appraisal report, hereinafter referred to as the “revised

appraisal.” The revised appraisal was communicated to

Mrs. Purser in October 2006. The final estimated value of the

property was listed the same as it was in the original

appraisal, $275,000.00.

11. The revised appraisal listed Mr. Choron as the

appraiser. On page 8 of the revised appraisal, Mr. Choron

signed the revised appraisal as the appraiser with a signature

date of June 15, 2006. On the same page of the revised

appraisal, Ms. Pfeiffer signed the revised appraisal as the

supervisory appraiser with a signature date of June 15, 2006.

She also indicated on that page that she had not inspected the

property.

12. On page 18 of the revised appraisal, Mr. Choron signed

the revised appraisal as the appraiser with a signature date of

October 20, 2006. Ms. Pfeiffer signed on the same page as the

supervisory appraiser with a signature date of June 15, 2006.

Ms. Pfeiffer checked boxes on page 18 of the revised appraisal,

indicating that she both did and did not inspect the property.

13. There are no issues with the valuation of the Purser

property. None of the experts who testified at the final

hearing found fault with the market value placed on the

property.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

15. The Department has the burden to establish the

allegations in the Amended Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

Counts IV, V, IX, and X of the Amended Administrative Complaint,

the Department alleges that Ms. Pfeiffer violated Subsections

475.624(14) and 475.624(15), Florida Statutes, which provide:

The board may deny an application for

registration, licensure, or certification;

may investigate the actions of any appraiser

registered, licensed, or certified under

this part; may reprimand or impose an

administrative fine not to exceed $5,000 for

each count or separate offense against any

such appraiser; and may revoke or suspend,

for a period not to exceed 10 years, the

registration, license, or certification of

any such appraiser, or place any such

appraiser on probation, if it finds that the

registered trainee, licensee, or

certificateholder:

* * *

(14) Has violated any standard for the

development or communication of a real

estate appraisal or other provision of the

Uniform Standards of Professional Appraisal

Practice.

(15) Has failed or refused to exercise

reasonable diligence in developing an

appraisal or preparing an appraisal report.

16. The Department also alleged in the Amended

Administrative Complaint that Ms. Pfeiffer violated Rules 2-1(a)

and 2-3 of the USPAP, which provide:

2-1 Each written or oral real property

appraisal report must:

(a) clearly and accurately set forth the

appraisal in a manner that will not be

misleading;

* * *

2-3 (This Standards Rule contains binding

requirements from which departure is not

permitted.)

Each written real property appraisal report

must contain a signed certification that is

similar in content to the following form:

I certify that, to the best of my knowledge

and belief:

--the statements of fact contained in this

report are true and correct.

--the reported analyses, opinions, and

conclusions are limited only by the reported

assumptions and limiting conditions that are

my personal, impartial, and unbiased

professional analyses, opinions, and

conclusions.

--I have no (or the specified) present or

prospective interest in the property that is

the subject of this report and no (or the

specified) personal interest with respect to

the parties involved.

--I have no bias with respect to the

property that is the subject of this report

or to the parties involved with this

assignment.

--my engagement in this assignment was not

contingent upon developing or reporting

predetermined results.

--my compensation for completing this

assignment is not contingent upon the

development or reporting of a predetermined

value or direction in value that favors the

cause of the client, the amount of the value

opinion, the attainment of a stipulated

result, or the occurrence of a subsequent

event directly related to the intended use

of this appraisal.

--my analyses, opinions, and conclusions

were developed, and this report has been

prepared, in conformity with the Uniform

Standards of Professional Appraisal

Practice .

--I have (or have not) made a personal

inspection of the property that is the

subject of this report. (If more than one

person signs this certification, the

certification must clearly specify which

individuals and which individuals did not

make personal inspection of the appraised

property.)

--no one provided significant real property

appraisal assistance to the person signing

this certification. (If there are

exceptions, the name of each individual

providing significant real property

appraisal assistance must be stated.)

17. The Department has established by clear and convincing

evidence that Ms. Pfeiffer did not use reasonable diligence in

preparing the original appraisal report in violation of

Subsection 475.624(15), Florida Statutes. She signed the

appraisal report as the appraiser and indicated that she had

inspected the property. However, she did acknowledge in the

appraisal report that Mr. Choron had assisted in the inspection,

research, and preparation of the report.

18. By certifying in the original appraisal report that

she had inspected the property, she violated Rule 2-3 of the

USPAP and therefore violated Subsection 475.624(14), Florida

Statutes.

19. The evidence did not establish that Ms. Pfeiffer

intentionally tried to mislead her client in the preparation of

the appraisal report. Mr. and Mrs. Purser were present when

Mr. Choron physically inspected the property. Ms. Pfeiffer

issued a revised appraisal when showed that Mr. Choron was the

appraiser who did the appraisal. In the revised appraisal,

Ms. Pfeiffer indicated in one section that she did not inspect

the property but in another section indicated that she did and

did not inspect the property. Again, since the Pursers were

present when Mr. Choron inspected the property, they had

knowledge of who actually inspected the property and would not

have been misled by the statements in the revised appraisal.

20. In the revised report, both Mr. Choron and

Ms. Pfeiffer put the signature date of the report as June 15,

2006, on page 8 of the revised report. On page 18 of the

revised appraisal, Mr. Choron put a signature date of

October 20, 2006, and Ms. Pfeiffer put a signature date of

June 15, 2006. Again, the report was not proofed in a diligent

manner, but there was no attempt to intentionally mislead the

client. The Department has failed to establish that

Ms. Pfeiffer violated Rule 2-1(a) of the USPAP.

21. Florida Administrative Code Rule 61J1-8.002 sets forth

the disciplinary guidelines to be used by the Florida Real

Estate Appraisal Board (Board). The guidelines list the usual

range of penalties for a violation of Subsections 475.624(14)

and 475.624(15), Florida Statutes, as a five-year suspension to

revocation and administrative fine of $1,000.00. Florida

Administrative Code Rule 61J1-8.002(4) provides that the Board

may deviate from the guidelines when there are aggravating or

mitigating circumstances.

22. Ms. Pfeiffer has demonstrated mitigating circumstances

that would require a lesser penalty than those listed in the

penalty guidelines. There was no harm to the consumer or

public. The market value assigned to the Purser property was

proper. There was no intent to mislead Mrs. Purser about who

inspected the property because Mrs. Purser was present when the

property was inspected by Mr. Choron. Ms. Pfeiffer tried to

correct her errors in the revised report.

23. No evidence was presented by the Department as to the

amount of costs incurred in the investigation and prosecution of

this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

Ms. Pfeiffer guilty of violating Subsections 475.624(14) and

475.624(15), Florida Statutes, and Rule 2-3 of the USPAP;

dismissing Count IX of the Amended Administrative Complaint;

placing Ms. Pfeiffer on probation for two years; imposing an

administrative fine of $1,000.00; and requiring Ms. Pfeiffer to

complete the 15-hour USPAP course.

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

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of January, 2009.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2005 version.

2/ Unless otherwise indicated, all references to the USPAP shall

be to the 2005 version.

3/ The identifying page numbers are located in the upper right

corner of the page.

COPIES FURNISHED :

Robert Minarcin, Esquire

Department of Business &

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801-1757

Cathy Pfeiffer

120 Mount Pilot Street

Cantonment, Florida 32533

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802N

Orlando, Florida 32801

Frank K. Gregoire, Chairman

Real Estate Appraisal Board

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.