10-005607PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Gayle Gottfried Status: Closed Recommended Order on Wednesday, December 22, 2010.

Summary: Petitioner failed to prove that Respondent hindered or obstructed investigation. Petitioner also failed to 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 - 5607 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 three counts, alleges violatio ns of various

statutes governing Florida certified residential real estate

appraisers.

Respondent timely filed a request for a for mal

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 September 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.

During final hearing, Petitioner presen ted the testimo ny of

one witness and introduced Exhibits 1, 2, 3, 4, and 5.

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 t he undersigned's

consent, both parties filed additional exhibits. Petitioner

submitted a supplemental 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 final hearing. At the parties' request,

twenty days were afforded to submit proposed recommended orders

following the filing of the transcript. The transcrip t 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 pr eparation of this Recommended Order.

Unless otherwise indicated, citations to the Fl orida

Statutes re fer to the 2010 Florida Statutes.

FINDINGS OF FACT

1. Petitioner Department of Business and Professional

Regulation, Division of Real Estate, is the st ate agency charged

with the licensing and regulation of property appraisers in the

state of Florida, 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 certifie d 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 tr ainee appraiser.

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

as an investigations manager, received a complaint package from

a lender. The complaint involved an appraisal of a resid ential

property located at 1850 North Congress Avenue, F 103, West Palm

Beach, Florida, that Respondent and Harvey Diaz allege dly

completed on June 5, 2007 .

5. On October 20, 2008, Investigator Piper visited

Respondent's registered business location in an effort to

investigate the complaint. During this init ial visit,

Investigator Piper spoke with Resp ondent's husband, Carlos

Garcia, and requested a copy of the entire w orking file

associated with the 1850 North Congress Avenue property.

6. Several days later, Investigator Piper returned to

Respondent's pla ce of busin ess . At that time, Respondent

advised Investigator Piper that she had no record associated

with the 1850 North Congress Avenue address, and had not been

involved with the preparation of an appraisal for that property.

7. During this second v isit, Respondent produced numerous

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

to the 1850 North Congress Avenue property was located.

8 . During the final hearing, Respondent credibly testified

that she had no knowledge of, or invol ve ment with, t he appraisal

under investigation . Respo ndent offered further testimony

( which wa s corroborated by two exhibits) that she discovered in

2007 that her electronic signature had been stolen. The theft

was re ported to the appropriate law enforce ment agency, as well

as the Department of Business and Professional Regulation,

Division of Real Estate.

9 . The undersigned concludes, as an ultimate finding of

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

with, the appraisal of 18 50 North Congress Avenue .

10 . A s an additional ultimate finding, the undersigned

concludes that Respondent did not hinder or obstruct

Investigator Piper's investigation.

CONCLUSIONS OF LAW

A. Jurisdiction

11 . The Division of Administrative Hearing s has

jurisdiction over the parties and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes .

B. Burden of Proof

12 . This is a disciplinary proceeding against Respondent's

licen se. Accordingly, Petitioner must prove the allega tions in

the Administrative Complaint by clear and convincing evidence.

Dep't of Banking & 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).

13 . Clea r 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 , 42 9 So. 2d 797, 800 (Fla. 4th DCA 1983) ) .

C. Count One

14 . 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 app raiser, or place any such

appraiser on probation, if it finds that the

registered trainee, licensee or

certificateholder:

* * *

(4) Has violated any of the provisions of

this part or any lawful order or rule issued

under the provisions of this part or C hapter

455.

15. In Count One of the Administrative Complaint,

Petitioner alleges that Respondent is subject to discip line

based upon a violation of s ection 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, intimidate, or

offer any bribe to any member of the board

or any of its employees or any person who

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

investigation or proceeding relating to a

violation of this section.

16. Petitioner contends that Respondent violated the

foregoing statutory provision by failing to provide the work

file associated with the app raisal of 1850 North Congress

Avenue.

17 . The undersigned concludes, however, that Petitioner

failed to demonstrate by clear and convincing evidence that

Respondent participated in, or had any knowledge of, the

appraisal of 1850 North Congress Avenue . Petitioner presented

no witness with first - hand knowledge establishing any

in volvement 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 supplement 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, an d evidence which is admissib le under a

hearsay objection"). Further, the undersigned has credited

Respondent'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 never possessed in the first

instance.

D. Count Two

18 . In Count Two of the Administrative Complaint,

Petitioner alleges that Respondent violated s ection 475.629,

Florida Statutes, by failing to retain the work file associated

with the appraisal of 1850 North Congress Avenue . S ection

475.629, Florida Statutes, provides:

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 r eports, 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 the submission of the apprai sal 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.

19 . Based on the findings of fact herein, Petitioner

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

and convincing evidence. Simply put, as Petitioner was unable

to prove that Respondent prepared or had knowledge of the 1850

North Congress Avenue appraisal, Respondent cannot be found

guilty of failing to maintain or make available a work file

associated with that property.

E. Count Three

20 . In Count Three of the Adm inistrative Complaint,

Petitioner alleges that Respondent violated s ection 475.6222 ,

Florida Statutes, by failing to provide direct supervision to

Harvey Diaz, her registered trainee.

21 . It appears that Petitioner has abandoned this count,

as Responde nt's alleged failure to supervise Harvey Diaz is not

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 u ndersigned find Respondent guilty of Counts 1

and 2 only :

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 respondent to

pay 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 l icensure maintenance, in the

areas of the Uniform Standards of

Professional Appraisal Practice and work

file retention/documentation.

(Emphasis added).

22 . Even assuming Count Three has not been abandoned , the

undersigned concludes that Petitione r faile d to prove the

violation 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 Respond ent.

DONE AND ENTERED this 2 2nd 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 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admin istrative Hearings

this 2 2nd day of December, 2010.

ENDNOTE S

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

undersigned concludes is inadmissible. As Respondent correctly

no ted during the final hearing, the records 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 except ion 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 61 3 (Fla. 2d DCA

2010). The fact that photocopies 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 H ealth & Rehabilitative Servs. , 558 So. 2d 87, 88 (Fla. 1 st

DCA 1990 ) (holding that in administrative proceeding, testimony

of HRS employee concerning ban k 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

witnes s"); Charles W. Ehrhardt, Ehrhardt's Florida 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 agency 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 an

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).

COPIES FURNISHED :

Jennifer Leigh Blakeman, E squire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N - 801

Orlando, 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 We st 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 recommended order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.