21-001377PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Christopher Wilson Status: Closed Recommended Order on Monday, August 30, 2021.

Summary: Petitioner failed to prove that Respondent violated applicable appraisal standards when he developed the subject Appraisal Report.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF B USINESS A ND

P ROFESSIONAL R EGULATION ,

D IVISION OF R EAL E STATE ,

Petitioner ,

vs. Case No. 21 - 1377PL

C HRISTOPHER W ILSON ,

Respondent .

/

R ECOMMENDED O RDER

A n administrative hearing was conducted in this case on June 22, 2021 ,

via Zoom teleconference, before James H. Peterson, III, Administrative Law

Judge with the Division of Administrative Hearings (DOAH) .

A PPEARANCES

For Petitioner: Mackenzie K. Medich , Esquire

Delhon Braaten, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

For Respondent: Daniel Villazon, Esquire

Daniel Villazon, P.A.

5728 Major Boulevard , Suite 535

Orlando, Florida 32 819

S TATEMENT OF THE I SSUE

W hether Christopher Wilson (Respondent) violated real estate appraisal

license law s as alleged by the Department of Business and Profess ional

Regulation (Petitioner or Department) in the A dministrative C omplaint.

P RELIMINARY S TATEMENT

In February 2021 , Petitioner filed an A dministrative C omplaint , dated

February 24, 2021 (Administrative Complaint), against Respondent .

Respondent timely fil ed an E lection of R ights with Petitioner on March 11,

2021, requesting an administrative hearing before DOAH. On April 22, 2021 ,

the case was forwarded to DOAH and originally assigned to Administrative

Law Judge E. Gary Early , who scheduled the final heari ng to be held on

June 22, 2021 . On June 18, 2021, the case was transferred to the undersigned

to conduct the administrative hearing , which was held as scheduled .

At hearing, Petitioner presented the testimony of an appraiser, Joel

Salley , and PetitionerÔ s e xpert a ppraisal w itness, Greg Lane. Petitioner

offered 11 exhibits received into evidence as Exhibits P - 1 through P - 11 .

Respondent testified on his own behalf and offered six exhibits received into

evidence as Exhibits R - 1 through R - 6.

The proceedings were recorded, and a transcript was ordered. The parties

were given until 30 days after the filing of the transcript within which to file

proposed recommended orders. The one - volume Transcript of the proceedings

was filed with DOAH on July 21 , 2021. There after , the parties timely filed

their respective Proposed Recommended Orders , both of which have been

considered in the preparation of this Recommended Order.

F INDINGS OF F ACT

1. Petitioner is the state agency charged with regulating the practice of

real est ate pursuant to s ection 20.165, Florida Statutes, and c hapters 120,

455 and 475, Florida Statutes . 1

1 A ll references to Florida Statutes, the Florida Administrative Code, or other applicable

rules are to versions in effect in June 202 0 .

2. At all material times to this case , Respondent was licensed as a state -

certified residential appraiser in the State of Florida .

3. Respondent has been prepar ing appraisal reports for approximately

31 years and has taken numerous courses over the years in appraisal

practice.

4. In June 2020, Respondent received an appraisal assignment from

Pennymac Loan Services to appraise real property located at

317 Dreadnaught Court, Tallahassee, Florida (Subject Property).

5. Respondent is very familiar with the area where the Subject Property

was located, in that most of his appraisal assignments have been for

appraisals in the area of the Subject Property.

6. On or about June 11, 2020, Respondent arrang ed with the owner of the

Subject Property to inspect the Subject Property.

7. The owner of the Subject Property gave him access and Respondent

inspected the Subject Property , which included taking numerous pictures of

the Subject Prope rty.

8. Prior to his inspection, R espondent attempted , on three occasions , to

call the owner of the Subject Property to advise her that he would be at the

Subject Property 15 minutes earlier than previously scheduled.

9. Respondent arrived at the Subject Propert y 15 minutes early and the

owner of the Subject Property allowed him access to inspect, measure , and

take pictures of the Subject Property.

10. When Respondent took photographs of the Subject Property , he did

not notice that somebody was in bed under a blanket when he took a picture

of a bedroom.

11. T he owner of the Subject Property provided Respondent a list of

improvements to the Subject Property.

12. Pursuant to the scope of his appraisal assignment , Respondent

researched through the Multiple Listing Service ( MLS ) comparable sales and

listings that were similar in square footage and room count , and located

within the same zip code as the Subject Property.

13. Based on his research , Respondent selected nine comparable

properties, six sales and three listings.

14. On or about June 15, 2020, with an effective date of June 11, 2020,

Respondent developed and communicated an appraisal report for the Subject

Property (Appraisal Report).

15. In the p hoto a ddendum s ection of the Appraisal Report, Respondent

inadvertently included a photo graph of a resident of the Subject Property

asleep in bed .

16. Respondent submitted his A ppraisal R eport to his client and his client

had no objection to RespondentÔs opinion of value for the Subject Property.

17. Respondent was paid a fee of $225 for the appraisa l.

18. In his A ppraisal R eport , Respondent indicates Comparable Sale #2

(141 Ivernia Loop, Tallahassee, Florida) was an Ñ armÔs length Ò transaction. 2

19. Respondent determined Comparable Sale #2 was an Ñ armÔs length Ò

transaction even though it was sold to a tenant of the property. Comparable

Sale #2 was identical to his Comparable Sale #1 and sold for the same price

as Co mparable Sale #1.

20. PetitionerÔs expert, Greg Lane , agreed that there was no evidence

indicating that RespondentÔs Comparable Sale #2 was not an Ñarm Ôs lengthÒ

transaction.

21. Comparable Sale #2 was not a foreclosure or short sale , and the

evidence was otherwise insufficient to show that it was not an Ñ armÔs length Ò

transaction.

2 An ÑarmÔs length Ò transaction is Ñ[s] aid of a transaction negotiated by unrelated parties,

each acting in his or her own self - interest; the basis for a fair market value determination. Ò

BlackÔs Law Dictionary, p. 100 (5 th e d. 1979).

22. Respondent maintained MLS sheets and tax sheets for all of his

comparable sal es and comparable listings in his workfile for the Subject

Property and has them readily available.

23. In his A ppraisal R eport , Respondent made positive adjustments to the

Subject Property appraisal in relation to Comparable Sale #1 ($500),

Comparable Sale #4 ($500), Comparable Sale #5 ($500), Comparable Sale #6

($500), Comparable Sale #7 ($1,000) and Comparable Sale #8 ($1,000).

24. These adjustments were made because the Subject Property had a

screen porch and patio , which Comparable Sales #1, 4, 5, 6, 7 , and 8 did not

have according to RespondentÔs MLS sheets and tax records. Respondent

based his adjustments on these documents and on his knowledge of the

market and his experience in knowing the value of a screen porch and/or

patio.

25. Respondent made a negative $2, 000 adjustment to the Subject

P roperty appraisal in relation to Comparable Sales #6, 7, 8 , and 9 because

the Subject Property had a one - car garage and those other c omparable s ales

had a two - car garage.

26. Respondent made his adjustments for a one - car garage v ersus a two -

car garage based on his experience of the subdivision and what the price

difference is between similar properties having a one - or two - car garage.

27. While Respondent Ôs work file contains data on all comparable sales, at

the hearing, Petitioner a ttempted to show that Respondent failed to apply

any recognized methods in the development of adjustments in the Appraisal

R eport .

28. PetitionerÔs expert witness, Greg Lane, testified that RespondentÔs

workfile was thorough in that all of his sales data are i n the Appraisal

R eport , but that there was lack of data indicating how adjustments were

made.

29. In explaining that his adjustments were based on the differences in

the compara ble sales data and listings , Respondent testified that he also used

his experience and familiarity with the area in making his adjustments . The

fact that Respondent also used his experience in making adjustments does

not show that data was missing, that Respondent failed to employ any

methods recognized in the industry, or that Responden t failed to exercise

reasonable diligence in developing his Appraisal Report.

30. PetitionerÔs witn ess, Jo el Salley, performed a second appraisal of the

Subject Property and his opinion of value of the Subject Property was higher

than RespondentÔs opinion of v alue for the Subject Property.

31. Mr. Salley made a negative $5,000 adjustment to the Subject Property

appraisal in relation to his C omparable Sale #3 condition because his

Comparable Sale #3 had new countertops and the Subject Property just had

resurfaced co untertops. Mr. Salley admitted that he had no data in his

workfile to support his $5,000 negative adjustment and that his adjustment

was made based on his knowledge of what countertops cost.

32. In addition, Mr. Salley made a negative $4,300 adjustment to the

Subject Property appraisal for date of sale/time to his Comparable Sale #4 ,

even though Comparable Sale #4 was a listing and not a sale. He made a

guess that there was a two - percent downward price adjustment with no data

in his workfile to support his gues s.

33. I n sum, applying reasoning and experience to comparative information

in the files does not equate to lack of data supporting adjustments, and the

evidence does not otherwise support a finding that Respondent failed to

employ methods recognized in the i ndustry or failed to exercise reasonable

diligence in developing his A ppraisal R eport of the Subject Property.

C ONCLUSIONS OF L AW

34. The Division of Administrative Hearings has jurisdiction over the

parties to and subject matter of this proceeding. See §§ 120 .569, 120.57(1 ),

120.60(5), and 455.225(5), Florida Statutes .

35. P etitioner is responsible for prosecuting disciplinary cases against

licensed real estate appraisers. See § 475.021(1), Fla. Stat.

36. The Florida Real Estate Appraisal Board is responsible for taki ng

agency action in disciplinary cases against licensed real estate appraisers.

S ee §§ 475.613(2) and 475.624, Fla. Stat.

37. Petitioner , as t he party asserting the affirmative in this proceeding,

has the burden of proof. See , e.g., Balino v. Dept. of HRS . , 34 8 So. 2d 349

(Fla. 1 st DCA 1977). Because Petitioner is seeking to prove violations of a

statute and impose administrative fines or other penalties, it has the burden

to prove the allegations in the complaint by clear and convincing evidence.

Ferris v. Tur lington , 510 So. 2d 292 (Fla. 1987). Clear and convincing

evidence:

requires that evidence must be found to be credible;

the facts to which the witnesses testify must be

distinctly remembered; the testimony must be

precise and explicit and the witnesses m ust be

lacking 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 a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established.

In re Hen son , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz v. Walker ,

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

38. Count One of the Administrative Complaint alleges that Respondent

violated s ection 475.62 4 (4), Florida Statutes ; Florida Administrative Code

R ule 61J1 - 9.001 ; Uniform Standards of Professional Appraisal Practice

(USPAP) Record Keeping Rule ; and USPAP Standard Rule s 1 - 1(a) , (b) , and

(c), 1 - 4(a) and 2 - 1(a).

39. Section 475.624(4) provides:

Discipline of Appraisers. Ï T he board may deny an

application for reg istration or certification of an

appraiser; ௴ 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 an y 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 the board finds that

the registered trainee, licensee, or cer tificateholder :

* * *

(4) H as violated any provision of this part or any

lawful order or rule issued under this part or

chapter 455.

40. Rule 61J1 - 9.001 provides in pertinent part: Ñ [a]ll registered, licensed,

or certified appraisers shall comply with the 2018 - 2019 Uniform Standards of

Professional Appraisal Practice (USPAP), effective January 1, 2018, which is

incorporated by reference. Ò

41. USPAP Record Keeping Rule provides in pertinent part: Ñ [t]he

workfile must include: all other data, information, and do cumentation

necessary to support the appraiserÔs opinions and conclusions and to show

compliance with USPAP, or references to the location(s) of such data,

information, and documentation. An appraiser who willfully or knowingly

fails to comply with the obl igations of the Record Keeping Rule is in violation

of the Ethics Rule. Ò

42. Cl ear and convincing evidence is lacking to show that Respondent

violated the USPAP Record Keeping Rule or that Respondent knowingly or

willfully failed to comply with USPAPÔs Record Keeping Rule. Rather, the

evidence showed that Respondent maintained a workfile for his A ppraisal

R eport of the Subject Property. RespondentÔs workfile contained the name of

the intended user ; a copy of his written report ; all other data, information,

and documentation necessary to support his opinion value ; and reference to

where he obtained his information.

43. USPAP Ethics Rule provides in pertinent part: Ñ [a]n appraiser must

not advocate the cause or interest of any party or issue; must not

communicate ass ignment results with the intent to mislead or defraud; must

not use or communicate a report or assignment results known by the

appraiser to be misleading or fraudulent; must not willfully or knowingly

violate the requirements of the Record Keeping Rule; an d must not perform

an assignment in a grossly negligent manner. Ò

44. The evidence at the hearing was insufficient to clearly and

convincingly show that Respondent violated the Ethics Rule. The evidence

did not show that RespondentÔs opinion of value used sale s that were not

comparable to the Subject Property, and the evidence did not reasonably

suggest that Respondent advocated an interest in making his appraisal or

was fraudulent or misleading in the communication or use of his appraisal

results. There was al so lack of evidence that Respondent violated the records

keeping rule or performed his appraisal in a grossly negligent manner.

45. USPAP Standard Rule 1 - 1 provides: Ñ in developing a real property

appraisal, an appraiser must: (a) be aware of, understand, and correctly

employ those recognized methods and techniques that are necessary to

pr oduce a credible appraisal; (b) not commit a substantial error of omission or

commission that significantl y affects an appraisal; and (c) not render

appraisal services in a c areless or negligent manner, such as by making a

series of errors that, although individually might not significantly affect the

results of an appraisal, in the aggregate affects the credibility of those

results. Ò

46. The evidence was insufficient to show that Respondent violated

USPAP Standard Rule 1 - 1 ( a) , (b) , or (c). The evidence did not clearly and

convincingly demonstrate that the appraisal produced was not a credible

appraisal or that Respondent committed a substantial error of omission or

commission that significantly affected his appraisal or that he rendered

appraisal services in a careless or negligent manner. MLS Sheets and tax

records of the Subject Property and c omparable s ales that Respondent used

to determine the differences between the Subject Pr operty and his

c omparable s ales were maintained in RespondentÔs workfiles . Respondent

relied on his considerable experience and knowledge of the market in making

his minor adjustments in a manner similar to the method used by

PetitionerÔs own witness, Mr. Salley , in adjusting for difference s between new

countertops and resurfaced countertops.

47. USPAP Standard Rule 1 - 4(a) provides: Ñ [w]hen a sales comparison

approach is necessary for a credible assignment results, an appraiser must

analyze such comparable sale s data as are available to indicate a value

conclusion. Ò Rather than showing that Respondent violated USPAP Standard

Rule 1 - 4(a), the evidence demonstrated that Respondent used appropriate

MLS and tax records to select his comparable sales to indicate a va lue

conclusion.

48. There was also a lack of clear and convincing evidence that

Respondent violated USPAP Standard Rule 2 - 1(a) . That r ule provides:

Ñ [e]ach written or written appraisal report must: (a) clearly and accurately

set forth the appraisal in a manner that will not be misleading. Ò Petitioner

provided no evidence that anyone was misled by RespondentÔs appraisal

report or that the appraisal was misleading .

49. Accordingly, Count One of the Administrative Complaint should be

dismissed.

50. C ount Two of the Admin istrative Complaint alleges that Respondent

violated s ection 475.62 4 (15).

51. That section authorizes discipline against an appraiser that Ñ has failed

or refused to exercise reasonable diligence in developing an appraisal or

preparing an appraisal report. Ò

52. The re is no definition of reasonable diligence in developing an

appraisal or preparing an appraisal report in Florida Statutes, case law , or

the USPAP.

53. In support of its assertions that Respondent violated section s

475.624(4) and 4 75.624(15) , t he Administrati ve Complaint alleges the

following facts :

a) Respondent incorrectly s tates Comparable Sales

#2 was an Ñ a rmÔs length Ò transaction;

b) Respondent has failed to maintain data or

information pertaining to comparable listings 7

and 8;

c) In the Subject Proper ty Photo Addendum Section

of the Report, the Respondent utilizes a photograph

featuring a resident of Subject Property asleep in

his bed;

d) In the Sales Comparison Approach Section of the

Report, Respondent makes adjustments to

Comparable Sales for porch /patio; however, t he

RespondentÔs workfile does not contain adequate

data, information, or documentation to support the

adjustments;

e) In the Sales Comparison Approach Section of the

Report, Respondent makes adjustments to

Comparable Sales for garage/car port; however, the

RespondentÔs workfile does not contain adequate

data, information, or documentation to support the

adjustments; and/or

f) Respondent arrived early to the Subject Property

to complete the assignment without discussing

arrival time with t he owner of Subject Property.

54. As found in the Findings of Fact, above, the evidence does not support

a finding that RespondentÔs Comparable Sale #2 was not an Ñ armÔs length Ò

transaction.

55. Further, clear and convincing evidence did not show that Respondent

failed to maintain data or information pertaining to c omparable sales or

l istings 7 and 8. PetitionerÔs own expert witness testified that RespondentÔs

workfile was thorough in that all of the sales data is in the report other than

data indicating how adju stments were made. Petitioner provided no evidence

that Respondent failed to maintain data or information pertaining to

RespondentÔs c omparable sales or l istings 7 and 8.

56. Petitioner also failed to prove that RespondentÔs inadvertent use of a

photo that inc luded a picture of a resident in bed or his arrival early to

inspect the Subject Property was a violation. Petitioner conceded this point in

paragraph 34 of its Proposed Recommended Order and otherwise provided no

evidence that anyone objected to use of th e photo or that Respondent was

aware that someone was in the bed when the photo was taken.

57. There was also a lack of clear and convincing evidence that

Respondent failed to maintain in his workfile adequate data, information, or

documentation to support his minimal adjustments of $500 to $1,000 for

porch and patio features that the Subject Property had which some of the

comparable s ales did not. Rather, the evidence showed that Respondent

relied on the MLS sheets and tax records of the Subject Property and

c omparable s ales maintained in his workfile to determine the difference in

patio and porch features of some of his comparable sa les. Respondent made

minor adjustments b ased on those differences and on his over 30 years of

experience and knowledge of the mar ket and what the value of a property

that has a screened porch and patio have versus properties that do not have

those features.

58. Similarly, Petitioner failed to prove by clear and convincing evidence

that Respondent failed to maintain in his workfile adequ ate data,

information , or documentation to support his $2,000 adjustment in relation to

c omparable s ales that had a two - car garage versus a one - car garage. Rather,

the evidence showed that Respo ndent relied on the MLS sheets and tax

records of the Subject Property and c omparable s ales to determine which

properties had a one - car garage or a two - car garage. Respondent made a

negative adjustment of $2,000 to the Subject Property in relation to the

c omparable s ales that had a two - car garage because the Subject Property had

a one - car garage.

59. In addition to MLS sheets and tax records of the Subject Property and

c omparable s ales , RespondentÔs adjustments were based on his 31 years of

experience and knowledge of the market and what the value of a property

having a t wo - car garage has versus a one - car garage. PetitionerÔs witness,

Mr. Salley , used the same method in determining the value of countertops

and admitted there was no data in his workfile to support his $5,000

adjustment for countertops , but that he simply kn ows what new countertops

cost .

60. Further, Petitioner provided no evidence that Respondent arrived

early for his appraisal without discussing his early arrival with the owner of

the Subject Property . Respondent explained in his undisputed testimony that

he tr ied calling the owner on three occasions to advise he would be arriving

early , and when he arrived fifteen minutes earlier than scheduled, the owner

gave him access to inspect the Subject Property.

61. In sum, t he evidence was insufficient to show that Respon dentÔs

adjustments or opinion of value was not correct or that Respondent failed to

exercise reasonable diligence in developing the subject appraisal or preparing

the A ppraisal R eport.

62. Accordingly, C ount T wo of the Administrative Complaint charging

Respond ent with violating s ection 475.624(15) , failure to exercise reasonable

diligence , should also be dismissed.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Business and Professional

Regulation, Division of Real Estate, enter a f inal o rder dismissing the

Administrative Complaint .

D ONE A ND E NTERED this 30th day of August , 2021 , in Tallahassee,

Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

1230 Apalachee Par kway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 30th day of August , 20 21 .

C OPIES F URNISHED :

Daniel Villazon, Esquire Mackenzie K. Medich, Esquire

Daniel Villazon, P.A. Department of Business and

Suite 535 Professional Regulation

5728 Major Boulevard 2601 Blair Stone Road

Orlando, Florida 32819 Tallahassee, Florida 32399

Delhon Braaten, Esquire Cristy Conolly, Chair

Department of Business and Real Estate Appraisal Bo ard

Professional Regulation Department of Business and

2601 Blair Stone Road Professional Regulation

Tallahassee, Florida 32399 400 West Robinson Street, N801

Orlando, Florida 32801

David Axelman, General Counsel

Office of the General Counsel Julie I. Brown, Secretary

Department of Business and Department of Business and

Pr ofessional Regulation Professional Regulation

2601 Blair Stone Road 2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202 Tallahassee, Florida 32399 - 2202

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.