09-000700PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Fred R. Catchpole Status: Closed Recommended Order on Tuesday, May 11, 2010.

Summary: Petitioner failed to prove that Respondent's appraiser trainees were located other than in the county of Respondent's primary business address or a contiguous county or that they did not have the same business address as Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 09-0700PL

)

FRED R. CATCHPOLE )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on February 17, 2010, by video

teleconference with sites in Jacksonville and in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Robert Minarcin, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801-1757

For Respondent: Martin A. Pedata, Esquire

Martin Pedata, P.A.

150 Wildwood Road

Deland, Florida 32720

STATEMENT OF THE ISSUE

The issue presented is whether Respondent Fred R. Catchpole

is guilty of the allegations contained in the Amended

Administrative Complaint filed against him, and, if so, what

disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On January 8, 2008, Petitioner Florida Department of

Business and Professional Regulation, Division of Real Estate,

issued an Administrative Complaint against Respondent Fred R.

Catchpole, alleging that Respondent had violated statutes and

rules regulating his conduct as a licensed real estate

appraiser. Respondent timely requested an administrative

hearing regarding those allegations, and this cause was

transferred to the Division of Administrative Hearings on

February 11, 2009, to conduct the evidentiary proceeding.

Three continuances of the scheduled final hearing were

granted, two of them on an emergency basis. By Order entered

November 17, 2009, Petitioner's Motion to Amend Administrative

Complaint, filed August 17, 2009, was granted. Accordingly, the

Amended Administrative Complaint filed August 17, 2009, stands as

and for the charging document in this cause. At the commencement

of the final hearing, Petitioner voluntarily dismissed Paragraph

numbered six in the Amended Administrative Complaint.

Petitioner presented the testimony of Benjamin L. Clanton

and Francois K. Gregoire, and Respondent testified on his own

behalf. Additionally, Petitioner's Exhibits numbered 1, 9, 10,

and 11 were admitted in evidence. Petitioner's request for

official recognition of the two-page map of the counties in

Florida, which was filed post-hearing, was granted.

FINDINGS OF FACT

1. Respondent Fred R. Catchpole became a licensed

appraiser in the State of Florida in 1993. In 2006 he became a

certified residential appraiser in the State of Florida. He is

still so licensed.

2. Since 1994 he has maintained offices at 5449 Marcia

Court, in Jacksonville, Duval County, and at Unit 202, 533

Seabreeze Boulevard, in Daytona Beach, Volusia County. In 1995

he added an office at 303 Hermitage in Valrico, Hillsborough

County. He has maintained all three offices continuously from

then through the date of the final hearing in this cause.

3. Since opening these offices, he has provided the

addresses for all three offices to Petitioner, and Petitioner's

employees have visited all three offices. When the law changed,

Respondent registered his corporation Worldwide Appraisal

Service, Inc., with Petitioner and specifically registered his

corporation at all three addresses.

4. Each of the three offices is a stand-alone operation,

with its own separate bank accounts and separate accounting

systems. Respondent has, historically, worked two days a week

at each of the three offices. He considers each of those

offices to be his "primary" office since they operate separately

and he spends an equal amount of time in each of them.

5. Over the years Respondent has supervised a number of

trainee appraisers, among them Fred C. Bowermaster and

William E. Woods. He has supervised Bowermaster from

January 24, 1995, through the time of the final hearing except

for one four-month time period. He has supervised Woods from

August 28, 1995, through the time of the final hearing. It is

noted that Petitioner's records reflect that Respondent's

supervision of Woods started both in 1995 and in 1998.

6. Bowermaster works in Volusia County at Respondent's

Seabreeze Boulevard address. Bowermaster is 71 years old and is

described by Respondent as "the oldest living trainee." For a

while, Woods worked in Duval County and then moved to

Hillsborough County. Respondent describes him as "the second

oldest trainee." At all times, all required paperwork and

notices of address and changes of address were filed by

Respondent, Bowermaster, and Woods.

7. When a licensee has more than one business address,

Petitioner requires that the licensee register all addresses.

At all times, Respondent has complied with that requirement.

There is no prohibition against a licensee having more than one

office or more than one business address.

8. At all times material hereto, when Respondent has been

present at one of his offices, he has maintained communication

with the others. He has also had other certified appraisers

assisting him in the training and supervision of his trainees.

9. Duval County is not contiguous to Volusia County or

Hillsborough County, and Hillsborough and Volusia Counties are

not contiguous to each other.

10. Petitioner has never taken any disciplinary action

against Respondent, Bowermaster, or Woods.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

12. Petitioner seeks to take disciplinary action against

Respondent in this proceeding. The burden of proof, therefore,

is on Petitioner, and Petitioner must prove the allegations in

its Amended Administrative Complaint by clear and convincing

evidence. Dep't of Banking & Finance, Division of Securities &

Investor Protection v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996). Petitioner has not met its burden.

13. The Amended Administrative Complaint contains two

counts. Count One alleges that Respondent is guilty of failing

to have the same business address as the registered trainee real

estate appraiser being supervised, in violation of Section

475.6221(1), Florida Statutes, and, therefore, in violation of

Section 475.624(4), Florida Statutes.

14. Section 475.6221(1) provides, in part, as follows:

A registered trainee real estate appraiser

must perform appraisal services under the

direct supervision of a licensed or

certified appraiser who is designated as the

primary supervisory appraiser. The primary

supervisory appraiser may also designate

additional licensed or certified appraisers

as secondary supervisory appraisers. A

secondary supervisory appraiser must be

affiliated with the same firm or business as

the primary supervisory appraiser and the

primary or secondary supervisory appraiser

must have the same business address as the

registered trainee real estate appraiser.

[Emphasis added.]

15. Petitioner has failed to prove Respondent guilty of

violating Section 475.6221(1), and, therefore, Section

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

evidence is clear that Bowermaster's address, according to

Petitioner's records, is the same as the location of one of

Respondent's offices. Even if it were different, as Woods'

address is different, there is no evidence as to whether

Bowermaster's address or Woods' address is a business address or

a mailing address. Petitioner's computer-screen print-outs

admitted in evidence merely reflect an "address" for each of

them, and the certifications submitted as evidence by Petitioner

specifically say that the addresses given therein are mailing

addresses. Lastly, there is no evidence to show that those

trainees did not share a business address with Respondent or

with a secondary supervisory appraiser.

16. Count Two of the Amended Administrative Complaint

alleges that Respondent is guilty of failing to supervise a

trainee real estate appraiser in the county where the

supervising appraiser's primary business address is located and

registered with the Department, or in any county contiguous to

the county where the supervising appraiser's primary business

address is located and registered with the Department, in

violation of Florida Administrative Code Rule 61J1-4.010(5) and,

therefore, in violation of Section 475.624(4), Florida Statutes.

17. Florida Administrative Code Rule 61J1-4.010(5)

provides that:

(5) When supervising any aspect of the

appraisal process, a supervisory appraiser

shall train or supervise registered

appraisers located in:

(a) The county where the supervising

appraiser's primary business address is

located and registered with the Department;

and

(b) Any county contiguous to the county

where the supervisory appraiser's primary

business address is located and registered

with the Department.

18. Petitioner has failed to prove Respondent guilty of

violating Florida Administrative Code Rule 61J1-4.010(5) and,

therefore, Section 475.624(4), Florida Statutes, as alleged in

Count Two of the Amended Administrative Complaint. This dispute

revolves around the term "primary business address." Petitioner

seeks to ignore Respondent's actual business operations and,

instead, rely on dictionary definitions for the word "primary."

Such an approach is simplistic and, in this cause, forms an

inadequate basis for disciplinary action.

19. If Respondent had a main office with satellite

offices, he would be required, pursuant to the Rule, to

supervise Bowermaster and Woods in the county where his main

office is located or in a contiguous county. But the evidence

is uncontroverted that Respondent does not have a main office.

Rather, he has three equal offices, each of which is a stand-

alone operation with its own separate bank accounts and its own

accounting systems. The evidence is further uncontroverted that

Respondent spends an equal amount of time at each office. In

addition, Petitioner has allowed Respondent to register his

trainees at the addresses used, and his trainees have been

permitted to register in two of the counties where Respondent

has primary offices.

20. In its Proposed Recommended Order, Petitioner relies

on Florida Administrative Code Rule 61J1-7.004(3), a Rule not

cited in the Amended Administrative Complaint and, therefore,

not a Rule Respondent is charged with violating. That Rule

requires an appraiser with more than one business address to

designate the primary business address. There is no evidence as

to which of his offices, if any, Respondent has designated as

his primary business address or which one Petitioner considers

his primary business address, if any, and why. Petitioner's own

records admitted in evidence in this proceeding merely use the

term "address" and not "primary business address" or use the

term "located at" or "additional locations at." Since

Petitioner has not proven which address is Respondent's primary

business address, Petitioner has failed to prove that his

trainees are not located in the county of Respondent's primary

business address or a contiguous county.

21. The clear and convincing evidence in this record is

that Bowermaster's address is the same as Respondent's office in

Volusia County and that Woods' address is in Hillsborough County

as is one of Respondent's offices. It appears obvious that the

intent of the Rule is to ensure that trainees are being properly

and/or directly supervised. No evidence was offered that either

Bowermaster or Woods is or has been inadequately supervised, and

Respondent is not charged with any breach of his supervisory

responsibilities.

22. In its Proposed Recommended Order, Petitioner

recommends that Respondent's license be suspended for one year,

that he be fined $5,000, that he take 15 hours of coursework,

and that he be placed on probation for two years. Even if

Petitioner had proved that Respondent had willfully violated the

Statutes and Rule as charged, which Petitioner has not, this

recommendation is stunning in view of the uncontroverted

evidence that Respondent's office and trainee locations have

been in place for over a decade with the full knowledge of

Petitioner, that there is no suggestion of harm to anyone, and

that Petitioner has taken no prior disciplinary action against

him. A reasonable and fair discipline to be imposed under the

facts of this case, if Respondent had been found guilty, would

be requiring Respondent to cease his supervision of any trainee

Petitioner believes to be improperly located. Respondent has

already borne the burden of retaining an attorney to defend him

in this administrative proceeding where the dispute is limited

to Respondent's position that he has three primary business

addresses and Petitioner's position that he can only have one.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding

Respondent not guilty and dismissing the Amended Administrative

Complaint filed against him.

DONE AND ENTERED this 11th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 11th of May, 2010.

COPIES FURNISHED:

Robert Minarcin, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

Orlando, Florida 32801-1757

Martin A. Pedata, Esquire

Martin Pedata, P.A.

150 Wildwood Road

Deland, Florida 32720

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Thomas W. O'Bryant, Jr., Director

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Suite 802 North

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.