99-001676 Department Of Business And Professional Regulation, Florida Real Estate Appraisal Board vs. Tony J. Maffei Status: Closed Recommended Order on Thursday, March 30, 2000.

Summary: Real estate appraiser committed breach of trust by not timely refunding monies for appraisals that were not completed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA REAL ESTATE APPRAISAL )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1676

)

TONY J. MAFFEI, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on

February 1, 2000, by video teleconference at sites in Fort

Lauderdale, Florida and Tallahassee, Florida, before Stuart M.

Lerner, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sunia Marsh, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Tony J. Maffei

4229 Bougainvilla Drive

Lauderdale By The Sea, Florida 33308

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Administrative Complaint, as amended, and, if so, what penalties

should be imposed.

PRELIMINARY STATEMENT

On January 6, 1999, Petitioner filed an Administrative

Complaint against Respondent containing the following "essential

allegations of material fact":

1. Petitioner is a state government

licensing and regulatory agency charged with

the responsibility and duty to prosecute

Administrative Complaints pursuant to the

laws of the State of Florida, in particular

Section 20.165, Fla. Stat., Chapters 120, 455

and 475, Fla. Stat., and the rules

promulgated pursuant thereto.

2. Respondent is currently a Florida state

certified residential real estate appraiser

having been issued license RD0002087 in

accordance with Chapter 475 Part II, Fla.

Stat.

3. The last license issued to Respondent was

as a state certified residential real estate

appraiser at 4229 Bougainvilla Drive 1,

Lauderdale By The Sea, Florida 33308.

4. On or about March 2, 1998, Buyer tendered

two checks dated March 1, 1998 in the amounts

of $450 and $480 to Respondent for two

appraisals. A copy of the checks is attached

hereto, incorporated herein and made a part

hereof by reference as Administrative

Complaint Exhibit 1.

5. On or about March 1, 1998, Respondent

provided Buyer a receipt for $850 marked for

appraisals. A copy of the receipt is

attached hereto, incorporated herein and made

a part hereof by reference as Administrative

Complaint Exhibit 2.

6. Buyer contacted Respondent several times

requesting the appraisals that were needed to

close on the properties. Respondent at one

point verbally offered a refund, but never

returned Buyer's money. Respondent never

provided Buyer with a copy of the appraisals.

7. On or about July 30, 1998, Petitioner's

investigator requested copies of the

appraisals from Respondent. Respondent was

unable to provide the appraisals because of

storage problems. Respondent advised that

copies of the appraisals had been provided to

the mortgage broker, Brett Matchton.

8. On or about August 3, 1998, the mortgage

broker advised that he never received a copy

of the appraisals from Respondent.

9. On or about August 3, 1998, Respondent

advised that a computer problem kept him from

getting copies of the appraisals.

10. On or about August 14, 1998, Respondent

failed to attend a meeting scheduled with

Petitioner's investigator to review

Respondent's work file.

11. On or about August 18, 1998, Respondent

hand delivered his work file to Petitioner's

investigator. The work file did not contain

the appraisals.

According to the Administrative Complaint, "based upon the

foregoing," Respondent was guilty of "failure to communicate an

appraisal in violation of [Section] 475.624(16), Fla. Stat"

(Count I); "having failed to maintain records in violation of

[Section] 475.629, Fla. Stat." (Count II); and "culpable

negligence or breach of trust in a business transaction in

violation of [Section] 4[7]5.624(2), Fla. Stat." (Count III). 1/

Respondent "dispute[d] the allegations of fact contained in

the Administrative and request[ ed] . . . a formal hearing

pursuant to Section 120.57(1), Florida Statutes." Petitioner, on

April 8, 1999, referred the matter to the Division of

Administrative Hearings (Division) for the assignment of a

Division Administrative Law Judge to conduct the hearing

Respondent had requested.

As noted above, the hearing was held on February 1, 2000.

2/ At the hearing, three witnesses testified: Dennis Thresher,

Steve Mohan, and Respondent. In addition to the testimony of

these three witnesses, five exhibits (Petitioner's Exhibits 1

through 5) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on

February 1, 2000, the undersigned, on the record, advised that

proposed recommended orders had to be filed with the Division no

later than 20 days from the date of the filing of the transcript

of the hearing. The hearing Transcript was filed on March 2,

2000. On March 22, 2000, Petitioner filed its Proposed

Recommended Order, which has been carefully considered by the

undersigned. To date Respondent has not filed any post-hearing

submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Petitioner is a state agency. It is responsible for

administering and enforcing the provisions of Chapter 475, Part

II, Florida Statutes.

2. Respondent is now, and has been since June 1, 1996, a

Florida-certified residential real estate appraiser (holding

certificate number RD 0002087 issued by Petitioner). 3/ At no

time during the period of his certification has he had any

disciplinary action taken against his certificate.

3. At all times material to the instant case, Steve Mohan

was the owner of the following income-producing properties:

attached "twin homes" located at 3976 and 3978 West Roan Court,

Lake Worth, Florida; and a triplex located at 517 South F Street,

Lake Worth, Florida (Subject Properties).

4. In or about March of 1998, Mr. Mohan approached Brett

Matchton, a mortgage broker, to inquire about refinancing the

loans that he (Mr. Mohan) had obtained to purchase the Subject

Properties. Mr. Matchton advised Mr. Mohan that, in order to

obtain such refinancing, Mr. Mohan needed to have the Subject

Properties appraised.

5. On or about March 2, 1998, Mr. Matchton asked Respondent

if he would appraise the Subject Properties (which Mr. Matchton

described as a duplex and a triplex) for Mr. Mohan (Appraisal

Assignment).

6. Respondent told Mr. Matchton that he would accept the

Appraisal Assignment, provided that he was paid either "at the

door" (in advance) or upon delivery of the appraisals.

7. Mr. Matchton advised that Mr. Mohan would pay Respondent

by check "at the door."

8. Respondent deemed such an arrangement to be acceptable.

9. That same day, accompanied by Mr. Mohan, Respondent

inspected, photographed, and made rough sketches of the Subject

Properties. He also obtained information about the properties

from Mr. Mohan.

10. Before departing, Respondent received two checks (both

made out to him) from Mr. Mohan. One check (in the amount of

$400.00) was for "a duplex income property appraisal on the

[West] Roan Court property" and the other check (in the amount of

$450.00) was for "a triplex income property appraisal on the F

Street property."

11. Following his visit, using his computer, Respondent

accessed local government public records (that were available "on

line") on the Subject Properties and on other "comparable"

properties ("to find comparable sales"). His examination

revealed, among other things, that there were actually "two

single-family twin homes" (not a duplex) located at 3976 and 3978

West Roan Court.

12. Respondent subsequently spoke with Mr. Matchton and

informed him that a separate appraisal needed to be done for each

of the "twin homes." Mr. Matchton responded that he "wanted it

done as a duplex," not as two separate properties. Mr. Matchton

also told Respondent what "minimum valuations" were required "to

make the [refinancing] work."

13. Based upon the preliminary work he had done, Respondent

determined that the fair market values of the Subject Properties

were "far and above" these "minimum valuations."

14. Sometime after April 1, 1998, Respondent contacted

Mr. Matchton and advised that he (Respondent) was not going to do

any additional work on the Appraisal Assignment because of

ethical concerns he had regarding the manner in which (in

accordance with Mr. Matchton's instructions) he was to complete

the assignment. 4/

15. On or about April 10, 1998, Respondent spoke with

Mr. Mohan over the telephone. During this telephone

conversation, Mr. Mohan told Respondent to "forget about"

appraising the Subject Properties and "just refund the money

back." Respondent agreed to refund, in full, the $850.00 he had

received from Mr. Mohan for the Appraisal Assignment, but

indicated that, because of his financial situation, it was "going

to take [him] some time" to make such a refund.

16. Respondent never completed any appraisal reports

concerning the Subject Properties (although he had started

working on such reports).

17. Not having received the promised refund from Respondent

(who was experiencing serious "cash flow" problems at the time),

Mr. Mohan, on May 26, 1998, filed a formal written complaint with

Petitioner. The complaint read as follows:

I, Steve Mohan requested Tony J. Maffei to

appraise the following properties, 517 South

F Street, Lake Worth Florida and 3976 and

3978 West Roan Court, Lake Worth, Florida.

On March 2, 1998, Mr. Maffei came out and

looked at the above properties and I paid him

the amounts of $400 and $450 (copies of

checks enclosed). On 3/16/98, Mr. Maffei was

contacted to inquire about whether the

appraisals were done. He said that they were

not.

Mr. Maffei was contacted almost every other

day between 3/17/98 and 4/7/98, only to be

told that the appraisals were not done. On

4/10/98, Mr. Maffei was contacted by phone,

at which time he said that he could not do

the appraisals and he would refund the monies

back. Today is 5/13/98 and I have not

received anything from him.

18. Mr. Mohan's complaint was assigned to Dennis Thresher,

an investigator specialist with Petitioner, on June 15, 1998.

19. Mr. Thresher interviewed Respondent on July 30, 1998,

at which time he requested Respondent to produce "copies of the

two appraisals that were supposed to be provided to Mr. Mohan."

20. On August 18, 1998, after some delay, Respondent

provided Mr. Thresher with a copy of his work file on the Subject

Properties. Included in the file were data sheets, photographs,

and sketches. Because of a hardware problem, he was unable to

retrieve and make copies of the "partial," unfinished appraisal

reports concerning the Subject Properties that he had stored on

his computer.

21. At no time did Respondent "come out and actually say"

to Mr. Thresher that he (Respondent) had not completed the

appraisal reports concerning the Subject Properties. He

reasonably assumed that Mr. Thresher already knew, from reading

Mr. Mohan's complaint, that no such appraisal reports were

completed by Respondent. Respondent did not intend, at any time,

to mislead Mr. Thresher.

22. On or about October 5, 1999, after the filing of the

Administrative Complaint in the instant case, Respondent sent the

following letter, accompanied by a check in the amount of

$400.00, to Mr. Mohan:

I have enclosed a bank check in the amount of

$400 for the refund of the appraisal fee that

you paid to me for the appraisal of one of

the properties located in Palm Beach County.

An additional bank check for $450 will follow

as the refund of the appraisal fee for the

other Palm Beach County property.

I humbly apologize for the delay of the

appraisal refund checks and the inconvenience

it has caused you. This was due to my lower-

than-typical cash flow and higher-than-

typical bills/expenses.

As we discussed via telephone, I am

personally compelled to compensate you for

you inconvenience, loss of interest income

and costs you may have incurred due to the

delay of the appraisal fee refund. As we

agreed upon, I will perform an appraisal

report for you on a single family or

condominium property at "no fee" after you

have received the full $850 appraisal refund.

Please be expecting a $450 bank check for

payment of the final balance before

October 30, 1999.

Please note that a copy of this letter and

the $400 check will be faxed to the

Department of Professional Regulation,

Florida Real Estate Appraisal Board for their

files.

Again, I apologize for the inconvenience this

has caused you.

23. Mr. Mohan subsequently received from Respondent the

"$450 bank check" Respondent had promised to send to him.

CONCLUSIONS OF LAW

24. The Florida Real Estate Appraisal Board (Board) is

statutorily empowered to take disciplinary action against

Florida-certified real estate appraisers based upon any of the

grounds enumerated in Section 475.624, Florida Statutes. Such

disciplinary action may include one or more of the following

penalties: certificate revocation; certificate suspension (for a

period not exceeding ten years); imposition of an administrative

fine not to exceed $5,000 for each count or separate offense;

issuance of a reprimand; and placement of the certificateholder

on probation. Section 475.624, Florida Statutes.

25. Proof greater than a mere preponderance of the evidence

must be submitted. Clear and convincing evidence of the

certificateholder's guilt is required. See Department of Banking

and Finance. Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

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

Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

DCA 1992); Section 120.57(1)(j), Florida Statutes ("Findings of

fact shall be based on a preponderance of the evidence, except in

penal or licensure disciplinary proceedings or except as

otherwise provided by statute.").

26. "'[C] lear 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 explicit and the witnesses must be lacking in

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 Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

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

27. The disciplinary action taken against the

certificateholder may be based only upon those offenses

specifically alleged in the administrative complaint. See

Cottrill v. Department of Insurance , 685 So. 2d 1371 (Fla. 1st

DCA 1996); Delk v. Department of Professional Regulation , 595

So. 2d 966, 967 (Fla. 5th DCA 1992); Kinney v. Department of

State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v.

Department of Professional Regulation , 458 So. 2d 842, 844

(Fla. 2d DCA 1984).

28. In determining whether Section 475.624, Florida

Statutes, has been violated in the manner charged in the

administrative complaint, one "must bear in mind that it is, in

effect, a penal statute. . . . This being true the statute must

be strictly construed and no conduct is to be regarded as

included within it that is not reasonably proscribed by it.

Furthermore, if there are any ambiguities included such must be

construed in favor of the . . . [ certificateholder]." Lester v.

Department of Professional and Occupational Regulations , 348

So. 2d 923, 925 (Fla. 1st DCA 1977).

29. The Administrative Complaint issued in the instant

case, as amended, alleges that Respondent violated subsections

(2) (Count III) and (16) (Count I) of Section 475.624, Florida

Statutes, as well as Section 475.629, Florida Statutes (Count

II), in connection with two appraisal assignments for which he

was paid a total $850.00 by Mr. Mohan.

30. Subsection (2) of Section 475.624, Florida Statutes,

authorizes the Board to take disciplinary action against a

Florida-certified real estate appraiser who "[h]as been guilty of

. . . culpable negligence, or breach of trust in any business

transaction in this state or any other state, nation, or

territory . . . . It is immaterial to the guilt of the . . .

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 . . . certificateholder, or was

an identified member of the general public."

31. Subsection (16) of Section 475.624, Florida Statutes,

authorizes the Board to take disciplinary action against a

Florida-certified real estate appraiser who "[h]as failed to

communicate an appraisal without good cause."

32. "An "appraisal," as used in Chapter 475, Part II,

Florida Statutes, including Section 475.624, Florida Statutes, is

defined in subsection (1)(a) of Section 475.611, Florida

Statutes, as follows:

"Appraisal" or "appraisal services" means the

services provided by certified or licensed

appraisers or registered assistant

appraisers, and includes:

1. "Appraisal assignment" denotes an

engagement for which a person is employed or

retained to act, or could be perceived by

third parties or the public as acting, as an

agent or a disinterested third party in

rendering an unbiased analysis, opinion,

review, or conclusion relating to the nature,

quality, value, or utility of specified

interests in, or aspects of, identified real

property.

2. "Analysis assignment" denotes appraisal

services that relate to the employer's or

client's individual needs or investment

objectives and includes specialized

marketing, financing, and feasibility studies

as well as analyses, opinions, and

conclusions given in connection with

activities such as real estate brokerage,

mortgage banking, or real estate counseling.

33. Subsection (1) of Section 475.624, Florida Statutes,

authorizes the Board to take disciplinary action against a

Florida-certified real estate appraiser who "[h]as violated any

provisions of [Part II of Chapter 475, Florida Statutes]."

Section 475.629, Florida Statutes, is among the "provisions of

this part." It provides as follows:

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 reports, and supporting

data assembled and formulated by the

appraiser in preparing appraisal 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 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 evidence for

litigation, reports and records must be

retained for at least 2 years after the

trial.

34. An "appraisal report," as used in Chapter 475, Part II,

Florida Statutes, including Section 475.629, Florida Statutes, is

defined in Subsection (1)(c) of Section 475.611, Florida

Statutes, as follows:

"Appraisal report" means any written or oral

analysis, opinion, or conclusion issued by an

appraiser relating to the nature, quality,

value, or utility of a specified interest in,

or aspect of, identified real property, and

includes a report communicating an appraisal

analysis, opinion, or conclusion of value,

regardless of title. However, in order to be

recognized in a federally related

transaction, an appraisal report must be

written.

35. A review of the record in the instant case reveals that

Petitioner met its burden of proving Respondent's guilt of the

violation alleged in Count III (as amended) of the Administrative

Complaint issued in the instant case, but that its proof was

insufficient to demonstrate that Respondent committed the

violations alleged in the remaining two counts of the

Administrative Complaint.

36. The record evidence establishes that, although

Respondent had entered into an agreement to appraise the Subject

Properties for Mohan, the agreement was subsequently rescinded by

mutual agreement and no appraisals or appraisal reports

concerning the Subject Properties were ever completed by

Respondent. See Hammond Realty Company v. Wheaton , 90 So. 2d 292

(Fla. 1956); Maruri v. Maruri , 582 So. 2d 116, 117 (Fla. 3d DCA

1991), quoting from Gustafson v. Jensen , 515 So. 2d 1298,

(Fla. 3d DCA 1987) and McMullen v. McMullen , 185 So. 2d 191

(Fla. 2nd DCA 1966)("'The abandonment of a contract may be

effected by the acts of one of the parties thereto where the acts

of that party are inconsistent with the existence of the contract

and are acquiesced in by the other party. This is tantamount to

a recision of the contract by mutual assent.'"); In re Estate of

Algar v. King , 383 So. 2d 676. 677 (Fla. 5th DCA 1980)("A

contract can be modified or revoked by mutual agreement of the

contracting parties.").

37. Because the appraisals that Respondent is alleged, in

Count I of the Administrative Complaint, to have failed to

"communicate" (in violation of Section 475.624(16), Florida

Statutes) never existed, that count of the Administrative

Complaint must be dismissed.

38. Count II of the Administrative Complaint should

likewise be dismissed because no showing has been made that

Respondent failed to maintain any records concerning the

Appraisal Assignment that he was required to retain pursuant

Section 475.629, Florida Statutes. 5/ While it is true, as

asserted in numbered paragraph 11 of the Administrative

Complaint, that the work file that Respondent delivered to Mr.

Thresher did not contain any appraisal reports prepared by

Respondent concerning the Subject Properties, there were no such

appraisal reports in the file, not as a result of any failure on

Respondent's part to comply with the record retention

requirements of Section 475.629, Florida Statutes, but simply

because, as noted above, no such reports were ever completed by

Respondent.

39. The record evidence, on the other hand, clearly and

convincingly establishes that, as alleged in Count III (as

amended) of the Administrative Complaint, Respondent committed a

"breach of trust in a business transaction" in violation Section

475.624(2), Florida Statutes, by failing to timely refund the

monies he was paid by Mr. Mohan to complete the Appraisal

Assignment. See Department of Professional Regulation, Division

of Real Estate v. Cooper , 1989 WL 644276 (Fla. DOAH

1989)(Recommended Order)("There is, however, a breach of trust in

a business transaction in that Cheryl [Cooper, a licensed real

estate broker and permit holder for a real estate school]

breached the trust imposed in her (through her agent) by her

customers when she failed to timely refund the deposits.

Therefore, as to this element, the complaint has been

sustained.").

40. Having determined that Petitioner established, by clear

and convincing evidence, Respondent's guilt of the violation

alleged in Count III (as amended) of the Administrative

Complaint, the undersigned must next decide which of the

penalties enumerated in Section 475.624, Florida Statutes, should

be imposed upon Respondent for having committed this violation.

41. In order to answer this question, it is necessary to

consult Rule 61J1-8.002, Florida Administrative Code, which

contains the "disciplinary guidelines" adopted by the Board. See

Parrot Heads Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An

administrative agency is bound by its own rules . . . creat[ ing]

guidelines for disciplinary penalties."); cf . Williams v.

Department of Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA

1988)(agency is required to comply with its disciplinary

guidelines in taking disciplinary action against its employees).

42. Rule 61J1-8.002, Florida Administrative Code, provides,

in pertinent part, as follows:

(1) Pursuant to s. 455.2273, Florida

Statutes, the Florida Real Estate Appraisal

Board sets forth below a range of

disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensees guilty of violating chapter 455 or

part II, chapter 475, Florida Statutes. (For

purposes of this rule, the term licensee

shall refer to registrants, license holders

or certificate holders.) The purpose of the

disciplinary guidelines is to give notice to

licensees of the range of penalties which

normally will be imposed for each count

during a formal or an informal hearing. For

purposes of this rule, the order of

penalties, ranging from lowest to highest,

is: reprimand, fine, probation, suspension,

and revocation or denial. Pursuant to s.

475.624, Florida Statutes, combinations of

these penalties are permissible by law.

Nothing in this rule shall preclude any

discipline imposed upon a licensee pursuant

to a stipulation or settlement agreement, nor

shall the ranges of penalties set forth in

this rule preclude the probable cause panel

from issuing a letter of guidance upon a

finding of probable cause, where appropriate.

(2) As provided in s. 475.624, Florida

Statutes, the Florida Real Estate Appraisal

Board may, in addition to other disciplinary

penalties, place a licensee on probation.

The placement of the licensee on probation

shall be for such a period of time and

subject to such conditions as the board may

specify. Standard probationary conditions

may include, but are not limited to,

requiring the licensee: to attend pre-

licensure courses; to satisfactorily complete

a pre-licensure course; to attend and

satisfactorily complete continuing education

courses; to submit to reexamination through

the state-administered examination, which

must be successfully completed; to be subject

to periodic inspections and interviews by an

investigator of the Department of Business

and Professional Regulation.

(3) The penalties are as listed unless

aggravating or mitigating circumstances apply

pursuant to paragraph (4). . . .

(d) 475.624(2)

Guilty of fraud, misrepresentation,

concealment, false promises, false pretenses,

dishonest dealing by trick, scheme or device,

culpable negligence of breach of

trust. . . .

In the case of culpable negligence and breach

of trust, the usual action of the Board shall

be to impose a penalty from $1000 fine to a 1

year suspension.

(4)(a) When either the petitioner or

respondent is able to demonstrate aggravating

or mitigating circumstances to the board by

clear and convincing evidence, the board

shall be entitled to deviate from the above

guidelines in imposing discipline upon a

licensee. Whenever the petitioner or

respondent intends to introduce such evidence

to the board in a s. 120.57(2), F.S.,

hearing, advance notice of no less than seven

(7) days shall be given to the other party or

else the evidence can be properly excluded by

the board.

(b) Aggravating or mitigating circumstances

may include, but are not limited to, the

following:

1. The severity of the offense.

2. The degree of harm to the consumer or

public.

3. The number of counts in the

administrative complaint.

4. The number of times the offenses

previously have been committed by the

licensee.

5. The disciplinary history of the licensee.

6. The status of the licensee at the time

the offense was committed.

7. The degree of financial hardship incurred

by a licensee as a result of the imposition

of a fine or suspension of the license.

8. Violation of the provision of part II of

chapter 475, Florida Statutes, wherein a

letter of guidance as provided in s.

455.225(3), Florida Statutes, previously has

been issued to the licensee.

43. Having carefully considered the facts of the instant

case in light of the pertinent provisions of Section 475.624,

Florida Statutes, and Rule 61J1-8.002, Florida Administrative

Code, the undersigned concludes that, due to the presence of

mitigating circumstances, 6/ deviation from the normal "range

of penalties" for a "breach of trust" in violation of Section

475.624(2), Florida Statutes, is warranted in the instant case

and that the appropriate penalty to impose upon Respondent for

committing the violation alleged in Count III (as amended) of the

Administrative Complaint is a fine in the amount of $500.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board issue a final order dismissing

Counts I and II of Administrative Complaint; finding Respondent

guilty of the violation of Section 475.624(2), Florida Statutes,

alleged in Count III (as amended) of the Administrative

Complaint; and fining Respondent $500.00 for having committed

this violation.

DONE AND ENTERED this 30th day of March, 2000, in

Tallahassee, Leon County, Florida.

__________________________________

STUART M. LERNER

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 30th day of March, 2000.

ENDNOTES

1/ Count III of the Administrative Complaint originally alleged

a violation of Section 4 6 5.624(2), Florida Statutes. At hearing,

Petitioner requested and was granted, without objection,

permission to correct this scrivener's error and amend the

Administrative Complaint to reflect that the "culpable negligence

or breach of trust" alleged in Count III was in violation of

Section 4 7 5.624(2), not 4 6 5.624(2), Florida Statutes.

2/ The hearing was originally scheduled to commence on July 23,

1999, but was continued at Petitioner's request. The matter was

subsequently held in abeyance pending the Florida Real Estate

Appraisal Board's consideration of a settlement stipulation into

which the parties had entered. After being advised that the

Florida Real Estate Appraisal Board had rejected the parties'

settlement stipulation and that the parties had conferred and

determined that a hearing in this case was necessary, the

undersigned rescheduled the hearing for February 1, 2000.

3/ His certificate became "involuntary inactive due to non-

renewal" on November 30, 1996, and remained so until February 18,

1997, the date Respondent late-renewed his certificate.

4/ Pursuant to Section 475.624(17), Florida Statutes, it is

unlawful for a certified appraiser to "accept[] an appraisal

assignment if the employment itself is contingent upon the

appraiser reporting a predetermined result, analysis, or opinion,

or if the fee to be paid for the performance of the appraisal

assignment is contingent upon the opinion, conclusion, or

valuation reached upon the consequences resulting from the

appraisal assignment."

5/ Petitioner acknowledges in its Proposed Recommended Order

that the record evidence is insufficient to establish that

Respondent "failed to maintain records" in violation of Section

475.629, Florida Statutes, as alleged in Count II of the

Administrative Complaint.

6/ These mitigating circumstances include Respondent's cash flow

difficulties during the time in question; Respondent's ultimate

repayment of the monies he owed Mr. Mohan and his agreement to

compensate Mr. Mohan for his delay in making such repayment; and

Respondent's unblemished disciplinary record.

COPIES FURNISHED:

Sunia Marsh, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

Tony J. Maffei

4229 Bougainvilla Drive

Lauderdale By The Sea, Florida 33308

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Charlotte Hattaway, Administrator

Division of Real Estate

Real Estate Appraisal Board

400 West Robinson Street

Orlando, Florida 32802

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.