08-004616PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Frank Laplatte Status: Closed Recommended Order on Tuesday, February 17, 2009.

Summary: Violation of professional standards in real estate warrants suspension, fine, probation, and educaiton.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 08-4616PL

)

FRANK LAPLATTE, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 5, 2008, an administrative hearing in this case

was conducted in Naples, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Minarcin, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801-1757

For Respondent: David F. Garber, Esquire

Garber, Hooley & Holloway, LLP

700 Eleventh Street South, Suite 202

Naples, Florida 34102

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations of the

Amended Administrative Complaint are correct, and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 11, 2007, the

Department of Business and Professional Regulation, Division of

Real Estate (Petitioner), essentially alleged that Frank

LaPlatte (Respondent) issued a real estate appraisal report,

indicating that the Respondent had inspected the interior of the

appraised property and that he had not conducted such an

inspection. The Respondent disputed the allegation and

requested a formal administrative hearing. The Petitioner

forwarded the request to the Division of Administrative

Hearings, which scheduled and conducted the hearing.

On November 12, 2008, the Petitioner filed a Motion to

Amend the Administrative Complaint. The hearing was transferred

to the undersigned Administrative Law Judge on November 20,

2008, who granted the pending motion at the commencement of the

hearing.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits numbered 2 through 7 admitted

into evidence. The Respondent testified on his own behalf and

presented the testimony of two witnesses.

A Transcript of the hearing was filed on December 22, 2008.

The parties filed Proposed Recommended Orders on January 16,

2009, pursuant to a stipulated extension of the filing deadline.

Both of the Proposed Recommended Orders have been reviewed in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a certified residential real estate appraiser, holding Florida

license number RD3233.

2. At all times material to this case, James Berry was a

registered real estate appraiser trainee, holding Florida

license number RI16607.

3. Mr. Berry was in training with the Respondent, who was

his supervisory appraiser.

4. On December 11, 2006, the Respondent and Mr. Berry

issued an appraisal report for residential property located at

9602 Whilehall Street, Naples, Florida, 34109, the "subject

property."

5. Mr. Berry conducted the appraisal and prepared the

computer-generated appraisal report. He thereafter affixed his

digital signature to the report as the appraiser.

6. The Respondent reviewed Mr. Berry's appraisal and

thereafter affixed his digital signature to the report as the

supervisory appraiser.

7. The appraisal report was on a form designated as

"Freddie Mac Form 70, March 2005" and "Fannie Mae Form 1004,

March 2005."

8. Beginning on page five and continuing onto page six of

the form was an "appraiser's certification." Included within

the appraiser's certification was a statement that the appraiser

"performed a complete visual inspection of the interior and

exterior areas of the subject property."

9. Page six of the form included a "supervisory

appraiser's certification." The supervisory appraiser's

certification did not state that the supervisory appraiser

conducted a visual inspection of the property.

10. The lower part of page six contained a boxed portion

containing separate parts that were divided only by space

between blocks of text.

11. On the left side of the boxed portion was a part

titled "APPRAISER" that included the appraiser's name, license

number, company name and address, and appraisal date. It also

included the appraiser's digital signature and the date of

signature.

12. Below the appraiser's information was a part titled

"ADDRESS OF PROPERTY APPRAISED" that included the address and

valuation of the subject property.

13. Below the part titled "ADDRESS OF PROPERTY APPRAISED"

was a part titled "LENDER/CLIENT" that included the relevant

information.

14. On the right side of the boxed portion was a part

titled "SUPERVISORY APPRAISER (ONLY IF REQUIRED)" that included

the supervisory appraiser's name, license number, company name

and address, the supervisory appraiser's digital signature, and

the date of signature.

15. Below the part titled "SUPERVISORY APPRAISER (ONLY IF

REQUIRED)" was a part titled "SUBJECT PROPERTY," which included

the following boxes and text:

 Did not inspect subject property

 Did inspect exterior of subject property

from street

Date of Inspection ____________________

 Did inspect interior and exterior of

subject property

Date of Inspection ____________________

16. Below the part titled "SUBJECT PROPERTY" was a part

titled "COMPARABLE SALES," which included the following boxes

and text:

 Did not inspect exterior of comparable

sales from street

 Did inspect exterior of comparable sales

from street

Date of Inspection ____________________

17. The appraisal form contained no instructions to

specifically indicate whether the appraiser or the supervisory

appraiser was responsible for completing the "SUBJECT PROPERTY"

part.

18. Mr. Berry had performed the interior and exterior

inspection of the subject property. In completing the form on

the computer, Mr. Berry checked the box within the "SUBJECT

PROPERTY" part indicating that the interior and exterior of the

property had been inspected.

19. The Respondent did not inspect the interior and

exterior of the subject property.

20. The evidence is insufficient to establish that either

Mr. Berry or the Respondent knew that the supervisory appraiser

was apparently responsible for completing the "SUBJECT PROPERTY"

part of the boxed section.

21. The Petitioner asserted that the client for the

appraiser at issue in this proceeding ("Landwatch/Countryside")

required that a supervisory appraiser perform an interior and

exterior inspection of the subject property. The assertion was

not supported by credible evidence and is rejected.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

23. The Amended Administrative Complaint alleged that the

Respondent was guilty of fraud in a business transaction and

violated Subsection 475.624(2), Florida Statutes (2006). The

Amended Administrative Complaint further alleged that the

Respondent violated Subsection 475.624(14), Florida Statutes

(2006), by violating the Uniform Standards of Professional

Appraisal Practice (USPAP) Scope of Work Rule, USPAP Standards

Rule 2-1(a), and USPAP Standards Rule 2-3.

24. In relevant part, Section 475.624, Florida Statutes

(2006), provides as follows:

475.624 Discipline.--The board may deny an

application for registration 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:

* * *

(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.

* * *

(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 . (Emphasis supplied)

25. License revocations and discipline procedures are

penal in nature. The Petitioner must demonstrate the

truthfulness of the allegations in the Amended Administrative

Complaint by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

In order to be "clear and convincing," the evidence must be "of

such weight that it produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy, as to the truth of

the allegations sought to be established." See Slomowitz v.

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

26. The form utilized in this case was apparently created

by housing finance agencies of the United States government.

There was nothing within the appraisal report form that

specifically indicated whether an appraiser or a supervisory

appraiser was responsible for completion of the form, including

the referenced boxes on the lower right side of the boxed

portion on page six. There was no credible evidence that

appraisers receive training on completion of the specific form

at issue in this proceeding as a requirement of licensure.

27. Review of the boxed portion on page six of the form

reveals that the title above each of the parts is of an

identical type font and size. Although a vertical line between

the left and right sections could divide the boxed portion into

two sections, one titled "APPRAISER" and the other titled

"SUPERVISORY APPRAISER (IF REQUIRED)," no such line exists, and

there is otherwise no clear division between the parts.

28. A close reading of the appraisal form certification

statements might lead a careful reader to deduce that the boxes

and text under the section titled "SUPERVISING APPRAISER" are to

be completed by the supervising appraiser, because the

appraiser's certification specifically includes a statement that

the appraiser performed a complete visual inspection of the

interior and exterior of the property. Presumably, there would

be no reason for an appraiser to check a duplicative box to

indicate that he inspected the interior and exterior of the

property when, by signing the appraisal report, an appraiser had

apparently already certified that such an inspection has been

conducted.

29. However, during cross-examination at the hearing,

Mr. Berry, the appraiser, was asked a question regarding the

apparent duplication, and he responded that it was "really an

issue that's the scope of work, because not always do you need

an inspection on the property; isn't that right?" Counsel for

the Petitioner replied "[t]hat's true" and continued with the

cross-examination, suggesting that, despite the appraiser's

certification, an interior and exterior inspection is not always

performed.

30. The Respondent signed a certification that did not

even suggest he had performed an inspection of the property, and

it is not unreasonable, given the text of the appraisal form

certifications, to correctly conclude that the inspection of the

subject property was performed by Mr. Berry.

31. Webster's dictionary defines fraud to be an

"intentional perversion of the truth in order to induce another

to part with something of value or to surrender a legal right"

or "an act of deceiving or misrepresenting." The evidence

presented in this case is insufficient to clearly and

convincingly establish that the Respondent committed fraud in

preparation of the appraisal report.

32. The USPAP Scope of Work Rule essentially states that

the Respondent's work must meet or exceed the "expectations of

parties who are regularly intended users for similar assignment"

and "what an appraiser's peers' actions would be in performing

the same or similar assignment."

33. The evidence presented in this case is insufficient to

clearly and convincingly establish that the Respondent's work

violated the USPAP Scope of Work Rule.

34. USPAP Standards Rule 2-1(a) provides that each written

or oral appraisal report "must clearly and accurately set forth

the appraisal in a manner that will not be misleading."

35. The evidence presented in this case is insufficient to

establish that the Respondent violated USPAP Standards

Rule 2-1(a), because the evidence fails to clearly and

convincingly establish who was responsible for placing the

checkmark in the box on the preprinted form.

36. USPAP Standards Rule 2-3 requires that a written

appraisal report must contain a signed statement including the

following certification:

I certify that to the best of my knowledge

and belief:

* * *

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 the certification, the

certification must clearly specify which

individuals did and which did not make a

personal inspection of the appraised

property.)

37. The evidence presented in this case establishes that

the Respondent violated USPAP Standards Rule 2-3. The

supervisory appraiser's certification on the appraisal report

does not state whether or not the Respondent made a personal

inspection of the property, and the Respondent failed to clearly

specify on the report whether or not he personally inspected the

appraised property.

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

disciplinary guidelines applicable to this case. The guidelines

suggest that a violation of Subsection 475.624(14), Florida

Statutes (2006), normally warrants a penalty of a five-year

suspension up to revocation and an administrative fine of

$1,000. It must be noted that the Petitioner's proposed

penalty, premised on a finding of guilt on all four counts set

forth in the Amended Administrative Complaint, was a two-year

suspension; a $5,000 fine; completion of a USPAP course; and a

two-year probationary period, in addition to an assessment of

costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Real Estate, enter a final

order finding Frank LaPlatte in violation of one count of

Subsection 475.624(14), Florida Statutes (2006), and imposing an

administrative fine of $2,500 and a six-month suspension, during

which an appropriate USPAP course must be completed, followed by

a three-year period of probation.

DONE AND ENTERED this 17th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 17th day of February, 2009.

COPIES FURNISHED :

Robert Minarcin, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801-1757

David F. Garber, Esquire

Garber, Hooley & Holloway, LLP

700 Eleventh Street South, Suite 202

Naples, Florida 34102

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

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.