08-004417PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Jessalyn Rodriguez Status: Closed Recommended Order on Monday, February 23, 2009.

Summary: Respondent did not exercise reasonable diligence in developing an appraisal, failed to maintain adequate record, failed to comply with Uniform Standards, and is guilty of culpable negligence" and "breach of trust."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 08-4417PL

)

JESSALYN RODRIGUEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

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

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on January 5, 2009, by

video teleconference between sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Robert Minarcin, Esquire

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801

Orlando, Florida 32801

For Respondent: Ainslee R. Ferdie, Esquire

Ferdie and Lones, Chartered

717 Ponce de Leon Boulevard, Suite 223

Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Jessalyn

Rodriguez, committed the violations alleged in a seven-count

Administrative Complaint, filed with the Petitioner Department

of Business and Professional Regulation on June 10, 2008, and,

if so, what disciplinary action should be taken against her

Florida real estate appraiser certification.

PRELIMINARY STATEMENT

On June 10, 2008, a seven-count Administrative Complaint,

FDBPR Case No 20070044536, was filed with Petitioner Department

of Business and Professional Regulation against Jessalyn

Rodriguez, a certified residential real estate appraiser. It

was alleged in the Administrative Complaint that Respondent had

violated the following provisions of Florida law: Section

475.624(15), Florida Statutes (2007)(Count One); Section

475.624(4), Florida Statutes (2007), by violating Section

475.629, Florida Statutes (2007)(Count Two); Section 475.624(2),

Florida Statutes (2007)(Count Three); Section 475.624(14),

Florida Statutes (2007), by violating Standards Rule 1-1(a),

(b), and (c), of the Uniform Standards of Professional Appraisal

Practice (2006)(Count Four); Section 475.624(14), Florida

Statutes (2007), by violating Standards Rule 1-2(e)(i) of the

Uniform Standards of Professional Appraisal Practice

(2006)(Count Five); Section 475.624(14), Florida Statutes

(2007), by violating Standards Rule 1-4(b) of the Uniform

Standards of Professional Appraisal Practice (2006)(Count Six);

and Section 475.624(14), Florida Statutes (2007), by violating

Standards Rule 2-1(a) and (b) of the Uniform Standards of

Professional Appraisal Practice (2006)(Count Seven).

On or about July 10, 2008, Respondent, through counsel,

served a Notice of Appearance and Election of Rights with

Petitioner disputing the material facts of the Administrative

Complaint and requesting a formal administrative hearing.

On September 9, 2008, Petitioner filed the Administrative

Complaint, Respondent’s request for hearing, and a letter

requesting that an administrative law judge be assigned to hear

the matter. The request for hearing was designated DOAH Case

No. 08-4417PL and was assigned to the undersigned.

On September 22, 2008, a final hearing was scheduled for

November 24, 2008, by Notice of Hearing by Video Teleconference.

The hearing was rescheduled on November 14, 2008, to the date of

the hearing noted above, at the request of Respondent after

changing her legal representation.

On December 29, 2008, Respondent filed an Answer and

Response to Administrative Complaint. In this pleading,

Respondent admitted to several allegations of fact in the

Administrative Complaint and admitted to others with an

explanation. The Answer was offered and accepted into evidence

as Respondent’s Exhibit 1.

At the final hearing, Petitioner presented the testimony of

Derrick Ham and Philip G. Spool. Petitioner also had admitted

Petitioner’s Exhibits 1 through 7. Respondent testified on her

own behalf and had one exhibit admitted.

The Transcript of the final hearing was filed with the

Division of Administrative Hearings on January 21, 2009. By

Notice of Filing of Transcript entered January 22, 2009, the

parties were informed that their proposed recommended orders

were to be filed on or before February 2, 2009.

Respondent filed a proposed Recommended Order on

January 30, 2009. Petitioner filed Petitioner’s Proposed

Recommended Order on February 2, 2009. Both proposed orders

have been fully considered in preparing this Recommended Order.

All further references to the Florida Statutes in this

Recommended Order are to the 2007 edition, unless otherwise

noted.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Business and Professional

Regulation, Division of Real Estate (hereinafter referred to as

Section 20.165, Florida Statutes. The Division is charged with

the responsibility for the regulation of the real estate

industry in Florida pursuant to Chapters 455 and 475, Florida

Statutes.

2. Respondent, Jessalyn Rodriguez, is, and was at the

times material to this matter, a Florida-certified residential

real estate appraiser having been issued license number 4120.

3. The last license issued to Ms. Rodriguez is now an

inactive Florida-certified residential real estate appraiser

license at 12071 Southwest 131st Avenue, Miami Florida 33166.

B. Appraisal of 6496 Southwest 24th Street .

4. On or about June 1, 2007, Ms. Rodriguez developed,

signed and communicated an appraisal report (hereinafter

referred to as the “Appraisal”), for property located at

64967 Southwest 24th Street, Miami, Florida 33155 (hereinafter

referred to as the “Subject Property”).

5. At the time the Appraisal was made, Ms. Rodriguez was a

Florida-certified residential real estate appraiser. The

Subject Property, however, was zoned BU-1, a commercial

district. The Administrative Complaint entered against Ms.

Rodriguez, however, does not allege that Ms. Rodriguez committed

any violation by performing an appraisal on commercially zoned

property.

C. Errors and Omissions in the Appraisal .

6. Ms. Rodriguez on her sketch of the Subject Property

contained in the Appraisal indicates that the total square

footage of the Subject Property is 2,105 square feet. On the

sketch, she breaks down the property into a 34.0 x 55.6 area of

1890.4 square feet, and a 5.0 x 43.0 area of 215 square feet.

7. In her documentation for the Appraisal, Ms. Rodriguez

notes that the adjusted square footage of the Subject Property

is 1,890 square feet and that the property appraiser reported

the square footage at 1,709 square feet.

8. Ms. Rodriguez failed to verify that the reported

2,105 square feet contained in the Appraisal was accurate.

9. Ms. Rodriguez admitted in her Answer and Response to

Administrative Complaint, Respondent’s Exhibit 1, that she

failed to verify that a rear addition to the Subject Property,

most likely the 5.0 x. 43.0 additional area she measured, had

not been permitted through Miami-Dade County. This unpermitted

addition would account for the discrepancy in the square footage

of the Subject Property noted in Ms. Rodriguez’s notes. Had she

investigated the discrepancy in square footage, it is possible

she would have discovered the unpermitted addition and reported

it in the Appraisal.

10. Ms. Rodriguez indicates in the Appraisal that the

to is a rather small area in the front of the Subject Property

which has an overhang. The evidence failed to prove that this

area, which is depicted in photos accepted in evidence, does not

constitute a “porch.”

11. Ms. Rodriguez incorrectly indicated in the Appraisal

that the Subject Property had a “patio.” Her suggestion that a

“grass area” constituted a patio is rejected as unreasonable.

While the Subject Property has a small “yard,” it does not have

a patio.

12. Ms. Rodriguez failed to indicate in the Appraisal that

the Subject Property did not have any “appliances.” The fact

that appliances were to be installed after closing fails to

excuse this omission.

13. Ms. Rodriguez did not make any adjustment for, or any

explanation of, the 13-year age difference between the Subject

Property and comparable sale 3.

14. The Supplemental Addendum section of the Appraisal

incorrectly reports that the Subject Property had wood floors

and that it had a new pool deck. Ms. Rodriguez has admitted

these errors, indicating that they are “[t]ypographical error[s]

but did not effect value since no monetary adjustment was made.”

D. Failure to Document .

15. Ms. Rodriguez’s documentation for the Appraisal lacked

a number of items, all of which Ms. Rodriguez admits were not

maintained. The missing documentation included the following

items which were not contained in her work file:

a. Support for a $40 per square foot adjustment for

comparable sale 1 and comparable sale 3 in the Sales Comparison

Approach section of the Appraisal;

b. Support for a site size adjustment made to comparable

sale 1 and comparable sale 2 in the Sales Comparison Approach

section of the Appraisal;

c. Support for a $1,500.00 “bathroom” adjustment to

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

the Sales Comparison Approach section of the Appraisal;

d. Support for a $5,000.00 “good” location adjustment made

to comparable sale 1 and comparable sale 2 in the Sales

Comparison Approach section of the Appraisal;

e. Support for the $4,000.00 garage adjustment made to

comparable sale 2 in the Sales Comparison Approach section of

the Appraisal;

f. Support for the $15,000.00 pool adjustment made to

comparable sale 2 in the Sales Comparison Approach section of

the Appraisal;

g. Support for the $350,000.00 Opinion of Site Value in

the Cost Approach section of the Appraisal;

h. Support for the $10,000.00 adjustment for the “As Is”

Value of Site Improvements in the Cost Approach section of the

Appraisal;

i. Support for the $20,000.00 adjustment for

Appliances/Porches/Patios/Etc. in the Cost Approach section of

the Appraisal; and

j. Marshall and Swift pages for the time frame that the

Appraisal was completed to justify the dwelling square footage

price in the Cost Approach section lf the Appraisal.

CONCLUSIONS OF LAW

A. Jurisdiction .

16. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

B. The Burden and Standard of Proof .

17. The Division seeks to impose penalties against

Ms. Rodriguez pursuant to the Administrative Complaint that

include the suspension or revocation of her real estate

appraiser’s license. Therefore, the Division has the burden of

proving the specific allegations of fact that support its

charges by clear and convincing evidence. See Department of

Banking and Finance, Division of Securities and Investor

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

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

Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

DCA 1998).

18. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C. The Charges of the Administrative Complaint .

19. In determining whether the Division has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the Administrative Complaint. Due process prohibits an

agency from taking penal action against a licensee based on

matters not specifically alleged in the charging instrument,

unless those matters have been tried by consent. See Trevisani

v. Department of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA

2005); Aldrete v. Department of Health, Board of Medicine , 879

So. 2d 1244, 1246 (Fla. 1st DCA 2004); and Shore Village

Property Owners' Association, Inc. v. Department of

Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002).

20. Section 475.624, Florida Statutes, authorizes the

Florida Real Estate Appraisal Board (hereinafter referred to as

commits any of a number of offenses defined therein. In this

case, the Division has charged Ms. Rodriguez with having

committed seven total violations of Section 475.624, Florida

Statutes: one violation of Section 475.624(15), Florida

Statutes (Count One); one violation of Section 475.624(4),

Florida Statutes (Count Two); one violation of Section

475.624(2), Florida Statutes (Count Three); and four violations

of Section 475.624(14), Florida Statutes (Counts Four through

Seven).

21. Because of their penal nature, the foregoing statutory

provisions must be strictly construed, with any reasonable

doubts as to their meaning being resolved in favor of the

certificateholder or registrant. See Jonas v. Florida

Department of Business and Professional Regulation , 746 So. 2d

1261, 1262 (Fla. 3d DCA 2000)("[S]tatutes such as those at issue

authorizing the imposition of discipline upon licensed

contractors are in the nature of penal statutes, which should be

strictly construed."); and Capital National Financial

Corporation v. Department of Insurance , 690 So. 2d 1335, 1337

(Fla. 3d DCA 1997)("Section 627.8405 is a penal statute and

therefore must be strictly construed: . . . . 'When a statute

imposes a penalty, any doubt as to its meaning must be resolved

in favor of a strict construction so that those covered by the

statute have clear notice of what conduct the statute

proscribes.'").

D. Count One; Violation of Section 475.624(15), Florida

Statutes .

22. Section 475.624(15) Florida Statutes, designates the

following conduct as a disciplinable offense:

(15) Has failed or refused to exercise

reasonable diligence in developing an

appraisal or preparing an appraisal report.

23. The Division proved clearly and convincingly that

Ms. Rodriguez failed to exercise reasonable diligence in

developing the Appraisal in that she failed to investigate

discrepancies in the square footage of the Subject Property and

the other errors and omissions found in the Findings of Fact

portion of the Recommended Order. Had she inquired, she should

have realized that there was an addition to the Subject Property

that had not been properly permitted, a fact that she failed to

report.

24. The Division’s assertion that it had also proved this

violation due to the failure of Ms. Rodriguez to recognize that

the Subject Property was zoned commercial ignores the fact that

the Division did not allege this failure to be a violation in

the Administrative Complaint. To consider this fact would

constitute a denial of Ms. Rodriguez’s due process right to be

fully informed of the charges against her.

25. The Division has proved clearly and convincingly that

Ms. Rodriguez violated Section 475.624(15), Florida Statutes, as

alleged in Count One.

E. Count Two; Violation of Section 475.624(2), Florida

Statutes, By Having Violated Section 475.629, Florida Statutes .

26 Section 475.624(4) Florida Statutes, designates the

following conduct as a disciplinable offense:

(4) Has violated any of the provisions of

this part or any lawful order or rule issued

under the provisions of this part or chapter

455.

In support of this alleged offense, the Division has alleged

that Ms. Rodriguez violated Section 475.629, Florida Statutes,

which provides:

Retention of records. --An appraiser

registered, licensed, or certified under

this part shall retain, for at least 5

years, original or true copies of any

contracts engaging the appraiser's services,

appraisal reports, and supporting data

assembled and formulated by the appraiser in

preparing appraisal reports. The period for

retention of the records applicable to each

engagement of the services of the appraiser

runs from the date of the submission of the

appraisal report to the client. These

records must be made available by the

appraiser for inspection and copying by the

department on reasonable notice to the

appraiser. If an appraisal has been the

subject of or has served as evidence for

litigation, reports and records must be

retained for at least 2 years after the

trial.

27. Section 475.629, Florida Statutes, requires more than

the retention of appropriate records for a five-year period. It

also requires that an appraiser keep “original or true copies of

any contracts engaging the appraiser's services, appraisal

reports, and supporting data assembled and formulated by the

appraiser in preparing appraisal reports” and that those records

are to “be made available by the appraiser for inspection and

copying by the department on reasonable notice to the

appraiser.”

28. Ms. Rodriguez admitted, and the evidence proved, that

she lacked all the supporting data for the Appraisal. Her

assertion that some of that date was “done in computer or a

computer based program” does not meet the requirements of

Section 475.629, Florida Statutes. Ms. Rodriguez was able to

and, in some instances, did print pages from the computer

programs she utilized. She failed to print other pages

containing information which should have been maintained in her

records for the Appraisal.

29. The Division has proved that Ms. Rodriguez has

violated Section 475.629, Florida Statutes, and, therefore, has

proved clearly and convincingly that she violated Section

475.624(4), Florida Statutes, as alleged in Count Two.

F. Count Three; Violation of Section 475.624(2), Florida

Statutes .

30. The Division asserts in its proposed recommended order

that Ms. Rodriguez violated Section 475.624(2), Florida Statutes,

by committing “culpable negligence” or “breach of trust.”

31. Section 475.624(2) Florida Statutes, designates the

following conduct as a disciplinable offense:

(2) Has been guilty of fraud,

misrepresentation, concealment, false

promises, false pretenses, dishonest

conduct, culpable negligence, or breach of

trust in any business transaction in this

state or any other state, nation, or

territory; has violated a duty imposed upon

her or him by law or by the terms of a

contract, whether written, oral, express, or

implied, in an appraisal assignment; has

aided, assisted, or conspired with any other

person engaged in any such misconduct and in

furtherance thereof; or has formed an

intent, design, or scheme to engage in such

misconduct and committed an overt act in

furtherance of such intent, design, or

scheme. It is immaterial to the guilt of

the registered trainee, licensee, or

certificateholder that the victim or

intended victim of the misconduct has

sustained no damage or loss; that the damage

or loss has been settled and paid after

discovery of the misconduct; or that such

victim or intended victim was a customer or

a person in confidential relation with the

registered trainee, licensee, or

certificateholder, or was an identified

member of the general public.

32. The terms “culpable negligence” have been defined as:

The failure to exercise the degree of care

rendered appropriate by the particular

circumstances, and which a man of ordinary

prudence in the same situation and with

equal experience would not have omitted

Department or Professional Regulation, Division of Real Esate v.

Alfert , 1987 West Law 488130 (FDOAH 1987).

33. In the same Recommended Order, a “breach of trust” is

defined as:

Any act done by a trustee contrary to the

terms of his trust, or in excess of his

authority and to the detriment of the trust;

or the wrongful omission by a trustee of the

any act required of him by the terms of the

trust . . . . Every violation by a trustee

of a duty which equity lies upon him,

whether willful and fraudulent or done

through negligence, or arising through mere

oversight and forgetfulness.

Id.

34. Because of the errors and omission committed by

Ms. Rodriguez, the Division has proved clearly and convincingly

that she committed culpable negligence and a breach of trust as

those terms are used in Section 475.624(2), Florida Statutes, as

alleged in Count Three of the Administrative Complaint.

G. Counts Four through Seven; Section 475.624(14), Florida

Statutes .

35. Section 475.624(14), Florida Statutes, designates the

following conduct as a disciplinable offense:

(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.

36. In Counts Four through Seven of the Administrative

Complaint, it is alleged that Ms. Rodriguez violated the

following Rules of the Uniform Standards of Professional

Appraisal Practice (2006)(hereinafter referred to as the

1(a) and (b).

H. Count Four; Violation of Section 475.624(14), Florida

Statutes .

37. In Count Four, it is alleged that Ms. Rodriguez

violated Rule 1-1(a), (b), and (c) of the Uniform Standards,

which provides that an appraiser, “[i]n developing a real

property appraisal” must:

(a) be aware of, understand, and correctly

employ those recognized methods and

techniques that are necessary to produce a

credible appraisal;

. . . .

(b) not commit a substantial error or

omission or commission that significantly

affects an appraisal; and

. . . .

(c) not render appraisal services in a

careless or negligent manner, such as by

making a series of errors that, although

individually might not significantly affect

the results of the an appraisal, in the

aggregate affects the credibility of those

results.

. . . .

38. The Division proved clearly and convincingly that

Ms. Rodriguez violated Rule 1-1(a) and (c) of the Uniform

Standards by her failure to account for the discrepancy in the

square footage of the Subject Property in the first instance and

by the accumulation of errors in the second instance.

39. The Division failed to prove clearly and convincingly

that Ms. Rodriguez violated Rule 1-1(b) of the Uniform Standards.

Again, the Division has argued that the failure to recognize that

the property was zoned commercial supports a finding that she

violated this portion of the Uniform Standard. The Division’s

reliance on this factor is misplaced due to its failure to allege

the error in the Administrative Complaint.

40. The Division proved clearly and convincingly that

Ms. Rodriguez violated Section 475.624(14), Florida Statutes, by

violating Rule 1-1(a) and (c) of the Uniform Standards as alleged

in Count Four.

I. Count Five; Violation of Section 475.624(14), Florida

Statutes .

41. In Count Five, it is alleged that Ms. Rodriguez

violated Rule 1-2(e)(i) of the Uniform Standards, which provides

that an appraiser, “[i]n developing a real property appraisal”

must “identify the characteristics of the property that are

relevant to the type and definition of value and intended use of

the appraisal, including “(i) its location and physical, legal,

and economic attributes . . . .”

42. Ms. Rodriguez failed to accurately identify the

physical or legal attributes of the Subject Property. She

provided incorrect information concerning physical attributes,

such as wood floors, a pool deck, and appliances that did not

exist. She also failed to report the unpermitted addition.

43. The Division proved clearly and convincingly that

Ms. Rodriguez violated Section 475.624(14), Florida Statutes, by

violating Rule 1-2(e)(i) of the Uniform Standards as alleged in

Count Five.

J. Count Six; Violation of Section 475.624(14), Florida

Statutes .

44. In Count Six, it is alleged that Ms. Rodriguez violated

Rule 1-4(b) of the Uniform Standards, which provides that an

appraiser, “[i]n developing a real property appraisal” must

“collect, verify, and analyze all information necessary for

credible assignment results:

. . . .

(b) When a cost approach is necessary for

credible assignment results, an

appraiser must:

(i) develop an opinion of site value by

an appropriate appraisal method or

technique;

(ii) analyze such comparable cost data

as are available to estimate the

cost new of the improvements (if

any); and

(iii) analyze such comparable data as

are available to estimate the

difference between the cost new

and the present worth of the

improvements (accrued

depreciation).

45. The Division proved clearly and convincingly that

Ms. Rodriguez violated Section 475.624(14), Florida Statutes, by

violating Rule 1-4(b) of the Uniform Standards as alleged in

Count Five. This conclusion is based upon the uncontroverted

expert opinion testimony of Philip G. Spool, that Ms. Rodriguez

failed to maintain any documentation in her workfile to

substantiate the various adjustments to the comparable sales she

made in valuing the Subject Property in violation of this Uniform

Standard.

K. Count Seven; Violation of Section 475.624(14), Florida

Statutes .

46. In Count Seven, it is alleged that Ms. Rodriguez

violated Rule 2-1(a) and (b) of the Uniform Standards, which

provides that “[e]ach written or oral real property appraisal

report must”:

(a) clearly and accurately set forth the

appraisal in a manner that will not be

misleading;

(b) contain sufficient information to

enable the intended users of the

appraisal to understand the report

properly; . . .

47. The Division proved clearly and convincingly that

Ms. Rodriguez violated Section 475.624(14), Florida Statutes, by

violating Rule 2-1(a) and (b) of the Uniform Standards as alleged

in Count Seven. Again, this conclusion is based upon the

uncontroverted expert testimony of Mr. Spool that her failure to

maintain any documentation in her work file to substantiate the

various adjustments to the comparable sales she made in valuing

the Subject Property constituted a violation of this Uniform

Standard.

L. The Appropriate Penalty .

48. The only issue remaining for consideration is the

appropriate disciplinary action which should be taken by the

Board against Ms. Rodriguez for the violations the Division

proved. To answer this question it is necessary to consult the

"disciplinary guidelines" of the Board set forth in Florida

Administrative Code Chapter 61J1-8.002. Those guidelines

effectively place restrictions and limitations on the exercise

of the Board’s disciplinary authority . See Parrot Heads, Inc.

v. Department of Business and Professional Regulation , 741 So.

2d 1231, 1233 (Fla. 5th DCA 1999)("An administrative agency is

bound by its own rules . . . creat[ing] guidelines for

disciplinary penalties."); and § 455.2273(5), Fla. Stat.

49. The penalty guideline for a violation of Section

475.624(15), Florida Statutes, is a suspension of five years to

revocation and a fine not to exceed $1,000.00. Fla. Admin. Code

R. 61J1-8.002(3)(r).

50. The penalty guideline for a violation of Section

475.624(4), Florida Statutes, by violating Section 475.629,

Florida Statutes, is a penalty of up to revocation and a fine up

to $5,000.00. Fla. Admin. Code R. 61J1-8.002(3)(g).

51. The penalty guideline for a violation of Section

475.624(2), Florida Statutes, of culpable negligence or breach

of trust is a fine of $1,000.00 to a one-year suspension. Fla.

Admin. Code R. 61J1-8.002(3)(e).

52. Finally, the penalty guideline for a violation of

Section 475.624(14), Florida Statutes, is from a five-year

suspension to revocation and a fine of $1,000.00. Fla. Admin.

Code R. 61J1-8.002(3)(q).

53. Florida Administrative Code Rule 61J1-8.002(4)

provides for the consideration of certain aggravating and

mitigating circumstances, but only if proper notice is given.

No such notice was provided in this proceeding.

54. In Petitioner’s Proposed Recommended Order, it has

been suggested that the recommended penalty should be a six-

month suspension of Ms. Rodriguez’s license, that she be

required to pay a fine of $3,500.00, that she placed on

probation for a period of two years, that she be required to pay

the $808.00 in investigative costs for this matter, and that she

be required to successfully complete the 15-hour USPAP course.

55. While most of the Division’s suggested penalty seems

appropriate, it is noted that Ms. Rodriguez’s license has been

inactive due to this matter for some time. She has, therefore,

effectively served a more than adequate “suspension” of her

license. While the Division proved most of the alleged

violations, those violations appear to have occurred due, not to

any “bad motive,” but rather to lack of appropriate education,

which can be remedied by requiring that Ms. Rodriguez complete

the 15-hour USPAP course.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Commission:

1. Finding that Ms. Rodriguez is guilty of the violations

alleged in Counts One through Seven of the Administrative

Complaint as found in this Recommended Order;

2. Placing Ms. Rodriguez’s appraiser license on probation

for a period of two years, conditioned on her successful

completion of the 15-hour USPAP course;

3. Requiring that she pay an administrative fine of

$2,000.00; and

4. Requiring that she pay the investigative costs incurred

in this matter by the Division.

DONE AND ENTERED this 23rd of February, 2009, in

Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 2009.

COPIES FURNISHED :

Ainslee R. Ferdie, Esquire

Ferdie & Lones, Chartered

717 Ponce de Leon Boulevard

Suite 223

Coral Gables, Florida 33134

Jessalyn Rodriguez

9972 Southwest 125th Terrace

Miami, Florida 33176

Robert Minarcin, Esquire

Department of Business &

Professional Regulation

400 West Robinson Street, N801

Orlando, Florida 32801-1757

Thomas W. O’Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building-North Tower, Suite N802

Orlando, Florida 32801

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

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 recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in these cases.