10-005606PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Gayle Gottfried Status: Closed Recommended Order on Tuesday, December 21, 2010.

Summary: Petitioner failed to prove that Respondent hindered investigation by belatedly providing appraisal logs, nor did Petitioner demonstrate that Respondent failed to maintain appraisal work file. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 10 - 5606 PL

)

GAYLE GOTTFRIED , )

)

Respondent. )

____________ ____________________)

RECOMMENDED ORDER

Edward T. Bauer , Administrative Law Judge of the Division

of Administrative Hearings , conducted the final hearing on

October 21, 2010, by video teleconference at sites in

Tallahassee and Miami, Florida.

APPEARAN CES

For Petitioner: Jennifer Leigh Blakeman, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orlando, Florida 3280 1

For Respondent: Steven W. Johnson, Esquire

Steven W. Johnson, P.A.

20 North Orange Avenue, Suite 700

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

Whether Respondent committed the violations allege d in the

Administrative Complaint, and, if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

On May 17, 2010, Petitioner Department of Business and

Professional Regulation, Division of Real Estate ("the

Division"), filed an Administrative C omplaint against

Respondent, Gayle Gottfried. The Administrative Complaint,

which consists of six counts, alleges violations of various

statutes and rules governing Florida certified residential real

estate appraisers.

Respondent timely filed a request f or a formal

administrative hearing, which was then forwarded to the Division

of Administrative Hearings ("DOAH") on July 15, 2010. This

cause was initially assigned to Administrative Law Judge John G.

Van Laningham, who scheduled a final h eari ng for Septe mber 21,

2010. At Petitioner's request, and without objection from

Respondent, t he final hearing was subsequently continued to

October 21 , 2010. Prior to the final hearing, this cause was

transferred to the undersigned.

At the outset of the final hear ing, Petitioner announced

that it was abandoning Counts 4 and 5 of the Administrative

Complaint. During final hearing, Petitioner presented the

testimo ny of one witness and introduced Exhibits 1, 2, 3, 4, 5,

6, and 13 into evidence . Respondent testified on her own

behalf , presented the testimony of an additional witness, and

introduced E xhibits 1 and 2 into evidence.

Following the final hearing, and with the undersigned's

consent, both parties filed additional exhibits. Petitioner

submitted a suppleme ntal exhibit, identified as Petitioner's

Exhibit S - 1, which has been admitted into evidence. 1 The

undersigned also received Respondent's Exhibit 3, which was been

admitted.

The parties advised the undersigned that a transcript would

be ordered of the f inal hearing. At the parties' request,

twenty days were afforded to submit proposed recommended orders

following the filing of the transcript. The transcript was

filed on November 10, 2010. Petitioner filed its Proposed

Recommended Order on November 23, 2010. Respondent also

submitted a Proposed Recommended Order, which was filed on

November 29, 2010. Both submissions were given due

consideration in the preparation of this Recommended Order.

Unless otherwise indicated, citations to the Fl orida

Statut es r efer to the 2010 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Department of Business and Professional

Regulation, Division of Real Estate, is the state agency charged

with the licensing and regulation of property appraisers in the

state of Florid a, pursuant to section 20.165 and c hapters 455

and 475, Florida Statutes.

2. At all times material to this action, Respondent was a

State of Florida certified residential real estate appra iser,

holding license number RD - 5554.

3. From January 23, 2006, through September 20, 2006, and

again from February 8, 2007, through December 3, 2007,

Respondent was responsible for supervising Harvey Diaz, a

registered trainee appraiser.

4. During 2008, Brian Piper, who is employed by Petitioner

as an investigation s manager, received a complaint package from

a lender. The complaint involved an appraisal of a residential

property located at 1337 Northw est 26th Street, Miami, Florida,

that Respondent and Harvey Diaz allegedly completed on

August 18, 2006.

5. O n October 20, 2008, Investigator Piper visited

Respondent's registered business location in an effort to

investigate the complaint. During this initial visit,

Investigator Piper spoke with Resp ondent's husband, Carlos

Garcia, and requested a copy of the e ntire working file

associated with the 1337 Northwest 26th Street property.

Investigator Piper also asked for copies of appraisal logs for

trainee Harvey Diaz , which certified appraisers are required to

maintain in connection with the supervision of train ee

appraisers.

6. Several days later, Investigator Piper returned to

Respondent's place of busin ess . At that time, Respondent

advised Investigator Piper that she had no record associated

with the 1337 Northwest 26th Street address, and had not been

i nvolved with the preparation of an appraisal for that property.

7. During this second visit, Respondent produced numerous

boxes for Investigator Piper's inspection. No work file related

to the 1337 Northwest 26th Street property was located.

8. At n o point did Respondent provide Investigator Piper

with the requested appraisal logs. However, Respondent

ultimately submitted the logs to Petitioner some eighteen months

later , after the Administrative Co mplaint was filed.

9. During the final hearing, Re spondent credibly testified

that she no had knowledge of, or involve ment with, the appraisal

of 133 7 Northwest 26th Street . Respon dent offered further

testimony ( which wa s corroborated by two exhibits) that she

discovered in 2007 that her electronic signa ture had been

stolen. The theft was re ported to the appropriate law

enforcement agency, as well as the Department of Business and

Professional Regulation, Division of Real Estate.

10. When asked on cross - examination why she did not

provide the appr aisal logs until after the filing of the

Administrative Complaint , R espondent testified that the delay

resulted from the crashing of her computer's hard drive, as well

as the relocation of her business .

11. The undersigned concludes, as an ultimate f indi ng of

fact, that Respondent was not aware of, and had no involvement

with, the appraisal of 1337 Northwest 26th Street.

12. A s an additional ultimate finding, the undersigned

concludes that Respondent did not hinder or obstruct

Investigator Piper's invest igation.

CONCLUSIONS OF LAW

A. Jurisdiction

13 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes .

B. Burden of Proof

14 . This is a discip linary proceeding against Respondent's

licen se. Accordingly, Petitioner must prove the allegations in

the Administrative Complaint by clear and convincing evidence.

Dep't of Ba nking and Fin., Div. of Sec s . & Investor Protect. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

15 . Clear 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 testimony must be precise

and lacking in confusion as to the facts in

issue. The evidence must be of such a

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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994 )( quoting Slomowitz

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

C. Count One

16 . Section 475.624 , Florida Statutes, reads , in relevant

part:

475.624 Discipline. -- The board . . . 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:

* * *

(4) Has violated any of the p rovisions of

this part or any lawful order or rule issued

under the provisions of this part or Chapter

455.

17 . In Count One of the Administrative Complaint,

Petitioner alleges that Respondent is subject to discipline

based upon a vi olation of s ectio n 475.626(1)(f), Florida

Statutes, which provides:

(f) No person shall obstruct or hinder in

any manner the enforcement of this section

or the performance of any lawful duty by any

person acting under the authority of this

section, or interfere with, intim idate, or

offer any bribe to any member of the board

or any of its employees or any person who

is, or is expected to be, a witness in any

investigation or proceeding relating to a

violation of this section.

18 . Petitioner contends that Respondent violat ed the

foregoing statutory provision by : (1) failing to provide the

work file associated with the appraisal of 1337 Northwest 26th

Street; or (2) turning over her appraisal logs belatedly .

19 . With respect to its first theory of guilt, Petitioner

failed to demonstrate by clear and convincing evidence that

Respondent participated in, or had any knowledge of, the

appraisal of 1337 Northwest 26th Street . Petitioner presented

no witness with first - hand knowledge establishing any

involvement by Respondent in the appraisal, and Petitioner's

relevant exhibits (photocopies of the appraisal and an invoice)

consist entirely of hearsay with no applicable hearsay

exception . 2 It is well - settled that while hearsay is admissible

in an administrative proceeding to supp lement or explain other

evidence , a finding of fact cannot be based on hearsay alone

unless it would be admissible over objection in a civil

proceeding . See Dieguez v. Fla. Dep't of Law Enforcement,

Criminal Justice Standards & Training Comm 'n , 947 So. 2d 591,

594 (Fla. 3d DCA 2007) ("Under [ s

evidence which can support a factual finding includes evidence

which is not hearsay, and evidence which is admissib le under a

hearsay objection"). Further, the undersigned has credited

Respo ndent's testimony that she had no knowledge of the

appraisal. Accordingly, Respo ndent cannot be guilty of failing

to pr ovide a work f ile that she had no reason to possess.

20 . In the alternative, Petitioner contends that

Respondent "hindered" the inv es tigation within the meaning of

s ection 475.626(1)(f) by failing to turn over the appraisal logs

until after the Administrative C omplaint was filed. In

particular, Petitioner argues that the appraisal logs "would

have been helpful to its investigators to d etermine whether

Respondent performed" the 1337 Northwest 26th Street appraisal,

and therefore Respondent hindered the investigation through her

tardy submission of the logs. See Pet. PRO, ¶ 27.

21 . Petitioner cites no c ases interpreting the language of

s ection 475.626(1)(f) , and instead refers the undersigned's

attention to Merriam - Webster's definition of hinder: "to make

slow or difficult the progress of; told hold back."

22 . The undersigned is not persuaded that "hinder" should

be afforded the b road interpretation suggested by Petitione r.

First, it is apparent that s ection 475.626(1)(f) is designed to

punish serious misconduct, as the terms "bribe," "intimidate,"

and "obstruct" appear in the statute along with "hinder." Also

notable is that a v iolation of section 475.626(1)(f) is

punishable as a second degree misdemeanor, 3 and must therefore be

strictly construed in favor of Respondent . See Quinn v. State ,

662 So. 2d 947, 955 (Fla. 5th DCA 1995) ("We must start with the

proposition that all cri minal statutes . . . must be strictly

construed in favor of the defendant."). For these reasons , the

undersigned conclu des that section 475.626(1)(f) requires proof

of a deliberate act on the part of a licensee, and that a

failure to provide requested doc uments as quickly as Petitioner

would like, without more, is insufficient to constitute a

violation of the statute .

23 . The undersigned's determination that a mere failure to

timely provide documents does not constitute a violation of

section 475.626(1 )(f) is supported by Department of Business and

Professional Regulation, Division of Real Estate v. Iverson ,

Case NO. 10 - 2690 ( Fla. DOAH Sept. 27, 2010). In Iverson , the

Department alleged that a real estate broker failed to turn over

requested documents, and therefore hindered or obstructed its

investigation, contrary to section 475.42(1)(i). Significantly,

s ection 475.42(1)(i) is virtually identical to s ection

475.626(1)(f), and provides:

(i) A person may not obstruct or hinder in

any manner the enforc ement of this chapter

or the performance of any lawful duty by any

person acting under the authority of this

chapter or interfere with, intimidate, or

offer any bribe to any member of the

commission or any of its employees or any

person who is, or is expec ted to be, a

witness in any investigation or proceeding

relating to a violation of this chapter.

In concluding that the licensee in Iverson did not hinder or

obstruct the investigation, the Administrative Law Judge

reasoned:

The Division cited no cases in support of

its contention that the failure of a real

estate broker to provide documents to the

Division, without more, constitutes a

violation of s ection 475.42(1)(i), Florida

S tatutes. Indeed, the entirety of the

description of the violation encompas sed by

Section 475.42(1), Florida Statutes, as well

as the fact that a violation of any

provision of s ection 475.42(1), Florida

Statutes, is a second - degree misdemeanor,

makes it clear that something more than the

failure to provide documents to the Divisi on

is required for a violation of Section

475.42(1)(i), Florida Statutes.

Id.

24 . Applying the fo regoing reasoning to the facts of this

case, there is an absence of clear and convincing evidence that

Respondent's delay in providing the logs "hindered" P etitioner's

investigation, or otherwise violated section 475.626(1)(f) .

Petitioner merely demonstrated that Respondent failed to provide

the requested appraisal logs until after the Administrative

Complaint was filed. No t only was no evidence adduced to

suggest that Respondent deliberately failed to produce the logs,

but Respondent presented credible, unrebutted testimo ny that the

relocation of her business and the cra sh of her computer's hard

drive contributed to th e delay . Accordingly, Respondent is no t

guilty of Count One.

D. Count Two

25 . In Count Two of the Administrative Complaint,

Petitioner al leges that Respondent violated s ection 475.629,

Florida Statutes, by failing to retain the work file associated

with the 1337 Northwest 26th Street ap praisal, or by failing to

make the work file available for copying. Section 475.629

provides:

An appraiser registered, licensed, or

certifie d under this part shall retain, for

at least 5 years, original or true copies of

any contracts engaging the apprais er's

services, appraisal reports, and supporting

date assembled and formulated by the

appraiser in preparing a ppraisal reports.

The period for retention of the records

applicable to each engagement of the

services of the appraiser runs from the date

of th e 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

evidenc e for litigation, reports and records

must be retained for at least 2 years after

the trial.

26 . Based on the findings of fact herein, Petitioner

failed to demonstrate a violation of s e ction 475.629 by clear

and c onvincing evidence. Sim ply put, as Peti tioner was unable

to prove that Respondent prepared or had kn owledge of the 1337

Northwest 26th Street appraisal , Respondent cannot be found

guilty of failing to maintain or make available a work file

associated with that property.

E. Remaining Counts

27 . As noted previously, Petitioner announced at the

outset of the fina l hear ing that it no longer wished to pursue

Counts Four and Five of the Administrative Complaint. As such,

Counts Four and Five must be dismissed.

28 . Petitioner has also aband oned Counts Three and Six of

the Administrative Complaint, as neither is referenced anywhere

in the findings of fac t or conclusions of law portions of its

Proposed Recommended Order. Indeed, at the conclusion of

Petitioner's Propos ed Recommended Order, it requests that the

undersigned find Respondent guilty of Counts 1 and 2 only :

Based on the foregoing Findi ngs of Fact and

Conclusions of L aw, and the evidence on the

record, including the exhibits received into

evidence, Petitioner recommends that the

Adm inistrative Law Judge:

1. Issue an order recommending that the

Florida Real Estate Appraisal Board enter a

F inal Order declaring Respondent guilty on

Count 1 and Count 2 of the Administrative

Complaint; and

2 . Issue an Order, requiring R espondent to

pa y an administrative fine in the amount of

$750, requiring that Respondent pay costs in

the amount of $330, and requiring that

Respondent complete fifteen (15) hours of

education, in addition to the education

required for licensure maintenance, in the

areas of the Uniform Standards of

Professional Appraisal Practice and work

file retention/documentation.

(Emphasis added).

29 . Even assuming Petitioner has not abandoned Counts

Three and Six, the undersigned concludes that neither charge was

proven by clear and convincing evidence.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that Petitioner enter a final order dismissing

the Administrative Complaint against Respondent.

DONE AND ENTERED this 21st day of December, 2010, in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 S UNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of December, 2010.

ENDNOTE S

1 Petitioner also submitted Supplemental Exhibit S - 2, which the

undersigned concludes is inadmissible. As Respondent correctly

noted during the final hearing, the record s were not properly

authenticated. See Charles W. Ehrhardt, Ehrhardt's Florida

Evidence § 901.7, p. 1040 - 1041 (2010 ed.) (explaining the

various ways to authenticate public records).

2 The business record exception to the hearsay rule does not

apply, as Petitioner did not lay the proper foundation. See

Twilegar v. State , 42 So. 3d 177, 198 - 199 (Fla. 2010)

(discussing method for establishing foundation for business

record exception); Dreyer v. State , 46 So. 3d 613 (Fla. 2d DCA

2010). The fact that pho tocopies of the appraisal and

corresponding invoice wound up in Petitioner's investigative

file does not compel a different conclusion. See Doran v. Dep't

of He alth & Rehabilitative Servs. , 558 So. 2d 87, 88 (Fla. 1st

DCA 1990 ) (holding that in administra tive proceeding, testimony

of HRS employee concerning bank records in her possession was

hears a y because "the documents were not offered through the

testimony of the bank's records custodian or other qualified

witness"); Charles W. Ehrhardt, Ehrhardt's Flo rida Evidence §

803.6c, p. 897 - 898 (2010 ed.) ("In a series of opinions, the

First District has apparently determined that the files will be

admissible under section 90.803(6) if the employee's testimony

demonstrates that the files are those of the state a gency and

that an agency employee had personal knowledge of the facts

contained in each document in the file. For example, while the

agency employee could testify to matters within her knowledge

and her agency files, she could not lay the foundation for a n

affidavit from a private employer contained in the file because

she would have no personal knowledge of the facts contained in

the affidavit ") (emphasis added).

3 See § 475.626(2), Fla. Stat. (Providing that any person who

violations any of the provisions of s ection 475.626(1), Florida

Statutes, is guilty of a misdemeanor of the second degree).

COPIES FURNISHED :

Jennifer Leigh Blakeman, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orland o, Florida 32801

Steven W. Johnson, Esquire

Steven W. Johnson, P.A.

20 North Orange Avenue, Suite 700

Orlando, Florida 32801

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

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N802

Orlando, Florida 32801

Joni Herndon, Chair

Real Estate Appraisal Board

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801

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 recommen ded order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.