09-002995PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Gregory John Owen Status: Closed Recommended Order on Tuesday, November 17, 2009.

Summary: Respondent was found not guilty of allegations on four counts of real estate violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 09-2995PL

)

GREGORY JOHN OWEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on August 6, 2009, in Kissimmee, Florida.

APPEARANCES

For Petitioner: Jennifer Leigh Blakeman, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801

Orlando, Florida 32801

For Respondent: Daniel Villazon, Esquire

Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

STATEMENT OF THE ISSUES

Whether Respondent, Gregory John Owen, committed the

violations alleged in the Administrative Complaint, and, if so,

what discipline should be imposed.

PRELIMINARY STATEMENT

On February 17, 2009, Petitioner, Department of Business

and Professional Regulation, Division of Real Estate, filed an

Administrative Complaint against Respondent, Gregory John Owen,

alleging him to be guilty of violating Subsections

(2005), and Florida Administrative Code Rule 61J2-14.009. On

March 31, 2009, Petitioner received Respondent's Petition for

Formal Hearing disputing allegations contained in the

Administrative Complaint.

On June 1, 2009, the Division of Administrative Hearings

received a request for formal proceedings from Petitioner. On

that same day, an Initial Order was forwarded to both parties

requesting mutually convenient dates for the final hearing.

Based on the response of the parties, on June 9, 2009, the case

was scheduled for final hearing on August 6, 2009, in Kissimmee,

Florida. On July 7, 2009, Petitioner filed a Motion to Amend

Administrative Complaint alleging additional violations of

Subsections 475.25(1)(b) and 475.25(1)(k), Florida Statutes

(2005). No objection to the Amended Administrative Complaint

was raised, and, on July 17, 2009, an Order was entered allowing

the motion to amend.

The case proceeded, as scheduled, on August 6, 2009.

Petitioner presented three witnesses: Judy Smith; Roy S.

Gonzaque; and David K. Weiker, and offered 15 exhibits, which

were received into evidence as Petitioner's Exhibits 1 through

11 and 13 through 16. Respondent testified in his own behalf

and offered one exhibit that was received into evidence and

marked Respondent's Exhibit 1.

The parties agreed that the proposed recommended orders

would be submitted within 21 working days of the filing of the

transcript. The Transcript of Proceedings was filed with the

Division of Administrative Hearings on September 16, 2009. Both

parties timely filed their Proposed Recommended Order.

All statutory references are to Florida Statutes (2005),

unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Facts are made:

1. Petitioner is a state government licensing and

regulating 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 and

Chapters 120, 455, and 475, Florida Statutes, and the rules

promulgated pursuant thereto.

2. Respondent is, and was at all times material hereto, a

licensed Florida real estate sales broker, issued License

No. 3018133, in accordance with Chapter 475, Florida Statutes.

3. From September 20, 2005, until January 9, 2007,

Respondent was a registered member/manager for FCH Realty, LLC

(FCH Realty).

4. On October 13, 2005, Respondent filled out a DBPR

RE-2050 Form, Request for Change of Status, which, had it been

filed with Petitioner, would have changed Respondent's status to

"broker/owner employer" for FCH Realty. Form 2050 was never

filed, although Respondent thought it had been.

5. At the request of Geoffrey Sinker, the qualifying

broker of FCH Realty, Respondent became a signatory on the FCH

Realty escrow account.

6. On May 17, 2006, Respondent deposited $25,000.00 in the

FCH Realty escrow account on behalf of Sadiq Ali, as a deposit

for real property Ali was purchasing.

7. On May 19, 2006, $25,000.00 was transferred from the

FCH Realty escrow account to the FCH Realty operating account.

Bank records indicate that the transfer was made by someone who

personally presented himself to a cashier at a branch bank.

Respondent denies making this transfer.

8. On May 1, 2006, and May 16, 2006, there were online

transfers of $29,690.00 and $5,000.00 from the FCH Realty escrow

account to the FCH Realty operating account. No evidence was

presented regarding who made these online transfers or whether

Respondent had online access to the FCH Realty escrow account.

There was no evidence presented that Respondent had access to

the FCH Realty operating account in May 2005.

9. On May 29, 2006, Respondent deposited a check from Ali

in the amount of $67,580.00 into the FCH Realty operating

account.

10. Pursuant to the terms of his contract, Ali's deposit

was not required to be held in an escrow account. The contract

specifically stated, "Purchaser hereby waives its rights to have

deposits placed in escrow, and all deposits which are collected

from Purchaser be paid directly to Seller without limitations.

Seller may withdraw all or a portion of the deposits to be used

for construction and development of the Home, for sales and

marketing, or for such other purposes as determined at Seller's

sole discretion."

11. Respondent had been directed to place Ali's $67,580.00

deposit in the FCH Realty operating account.

12. On July 27, 2006, $32,069.00 was transferred online

from the FCH Realty escrow account to the FCH Realty operating

account. There were three other online transfers in July from

the FCH Realty escrow account to the FCH Realty operating

account in the amounts of $34,970.00 on July 14, 2006;

$32.069.00 on July 18, 2006; and $800.00 on July 28, 2006. No

evidence was presented that Respondent had online access to the

FCH Realty escrow account or that Respondent transferred these

funds.

13. On July 28, 2006, Respondent did transfer $32,890.00

from the FCH Realty operating account to the FCH Realty

construction account. The $32,890.00 was a deposit from a buyer

at Millbrook Manor.

14. After transferring the $32,890.00, Respondent had the

bank issue a cashier's check to Platinum Properties for

$32,890.00 as the buyer's deposit on the Millbrook Manor

property.

15. Respondent was not responsible for reconciling the FCH

Realty escrow account.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject of and the parties to this

17. The burden of proof in this proceeding is on

Petitioner. Florida Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). Petitioner is required to meet its burden

by clear and convincing evidence. Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

18. Subsection 475.25(1), Florida Statutes, authorizes the

Florida Real Estate Commission to take disciplinary action

against the license of any real estate sales person if the

licensee commits certain specified acts. Listed among the

prohibited acts are those alleged to have been committed by

Respondent and enumerated in the Amended Administrative

Complaint.

19. Count One of the Amended Administrative Complaint

alleges a violation of Subsection 475.25(1)(d)1., Florida

Statutes, which states:

(1) The commission may deny an

application for licensure, registration, or

permit, or renewal thereof; may place a

licensee, registrant, or permittee on

probation; may suspend a license,

registration, or permit for a period not

exceeding 10 years; may revoke a license,

registration, or permit; may impose an

administrative fine not to exceed $5,000 for

each count or separate offense; and may

issue a reprimand, and any or all of the

foregoing, if it finds that the licensee,

registrant, permittee, or applicant:

(d)1. Has failed to account or deliver to

any person, including a licensee under this

chapter, at the time which has been agreed

upon or is required by law or, in the

absence of a fixed time, upon demand of the

person entitled to such accounting and

delivery, any personal property such as

money, fund, deposit, check, draft, abstract

of title, mortgage, conveyance, lease, or

other document or thing of value, including

a share of a real estate commission if a

civil judgment relating to the practice of

the licensee's profession has been obtained

against the licensee and said judgment has

not been satisfied in accordance with the

terms of the judgment within a reasonable

time, or any secret or illegal profit, or

any divisible share or portion thereof,

which has come into the licensee's hands and

which is not the licensee's property or

which the licensee is not in law or equity

entitled to retain under the circumstances.

20. No evidence was presented that supports the violation

of Subsection 475.25(1)(d)1., Florida Statutes. There is no

evidence of a demand being made by any person for an accounting,

a return of deposit, or any of the listed improprieties.

21. Count Two of the Amended Administrative Complaint

alleges a violation of Florida Administrative Code Rule

61J2-14.010 and, therefore, a violation of Subsection

475.25(1)(e), Florida Statutes. Florida Administrative Code

Rule 61J2-14.010 states, in pertinent part, as follows:

(1) Every broker who receives from sales

associates, principals, prospects, or other

persons interested in any real estate

transaction, any deposit, fund, money,

check, draft, personal property, or item of

value shall immediately place the same in a

bank, savings and loan association, trust

company, credit union or title company

having trust powers, in an insured escrow or

trust account. The broker must be a

signatory on all escrow accounts.

22. Subsection 475.25(1)(e), Florida Statutes, states, as

follows:

Has violated any of the provisions of this

chapter or any lawful order or rule made or

issued under the provisions of this chapter

or chapter 455.

23. The evidence presented indicates that the first

$25,000.00 received from Ali was placed in the FCH Realty escrow

account. The Purchase Contract signed by Ali on April 20, 2005,

did not require "deposits" received from him to be placed in

escrow. The evidence regarding Respondent's status with FCH

Realty, other than the fact that he was a "registered

member/manager," fails to meet the "clear and convincing"

quantum of proof. Count Two has not been proved by "clear and

convincing" evidence.

24. Count Three of the Amended Administrative Complaint

alleges a violation of Subsection 475.25(1)(k), Florida

Statutes, which states:

Has failed, if a broker, to immediately

place, upon receipt, any money, fund,

deposit, check, or draft entrusted to her or

him by any person dealing with her or him as

a broker in escrow with a title company,

banking institution, credit union, or

savings and loan association located and

doing business in this state, or to deposit

such funds in a trust or escrow account

maintained by her or him with some bank,

credit union, or savings and loan

association located and doing business in

this state, wherein the funds shall be kept

until disbursement thereof is properly

authorized; or has failed, if a sales

associate, to immediately place with her or

his registered employer any money, fund,

deposit, check, or draft entrusted to her or

him by any person dealing with her or him as

agent of the registered employer.

25. Count Three has not been proved. Petitioner has

failed to present "clear and convincing" evidence that

Respondent did not place the funds received into an appropriate

bank account maintained by FCH Realty, or that he had a

responsibility to do so in light of the contractual relationship

that existed between the purchaser and FCH Realty, if there was

a relationship. (Petitioner's Exhibit 11 is a Purchase Contract

between Ali and Citrus Gardens, LLC.) The evidence is unclear

regarding who caused the disbursements from the FCH Realty

accounts.

26. Count Four of the Amended Administrative Complaint

alleges a violation of Florida Administrative Code Rule

61J2-14.009 and Subsection 475.25(1)(k), Florida Statutes, and,

therefore, a violation of Subsection 475.25(1)(e), Florida

Statutes. Florida Administrative Code Rule 61J2-14.009 states,

as follows:

Every sales associate who receives any

deposit, as defined in Rule 61J2-14.008,

Florida Administrative Code, shall deliver

the same to the broker or employer no later

than the end of the next business day

following receipt of the item to be

deposited. Saturday, Sundays and legal

holidays shall not be construed as business

days. Receipt by a sales associate or any

other representative of the brokerage firm

constitutes receipt by the broker for

purposes of paragraph 61J2-14.008(1)(d),

Florida Administrative Code.

27. For the reasons stated in paragraphs 23 and 25,

Petitioner has failed to prove Count Four by "clear and

convincing" evidence.

28. Count Five of the Amended Administrative Complaint

alleges a violation of Subsection 475.25(1)(b), Florida

Statutes, which states:

(b) Has been guilty of fraud,

misrepresentation, concealment, false

promises, false pretenses, dishonest dealing

by trick, scheme, or device, culpable

negligence, or breach of trust in any

business transaction in this state or any

other state, nation, or territory; has

violated a duty imposed upon her or him by

law or by the terms of a listing contract,

written, oral, express, or implied, in a

real estate transaction; has aided,

assisted, or conspired with any other person

engaged in any such misconduct and in

furtherance thereof; or has formed an

intent, design, or scheme to engage in any

such misconduct and committed an overt act

in furtherance of such intent, design, or

scheme. It is immaterial to the guilt of

the licensee 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 licensee or

was an identified member of the general

public.

29. The violation of Subsection 475.25(1)(b), Florida

Statutes, is based on the factual allegation that Respondent was

the sole signatory on the FCH Realty's escrow account and

"acting real estate broker" for FCH Realty.

30. Petitioner has not provided "clear and convincing"

evidence that Respondent violated Subsection 475.25(1)(b),

Florida Statutes, as alleged. While Respondent may have

believed that he was the "broker/owner employer," the DBPR

RE-2050 Form, Request for Change of Status, was not forwarded to

Petitioner. He, in fact, was not the broker. While he was the

sole signatory on the escrow account, there is no statutory duty

imposed on the "sole signatory."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that Petitioner, Department of Business and

Professional Regulation, Division of Real Estate, enter a final

order finding that Respondent, Gregory John Owen, is not guilty

of the allegations of impropriety stated in the Amended

Administrative Complaint.

DONE AND ENTERED this 17th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of November, 2009.

COPIES FURNISHED :

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802, North

Orlando, Florida 32801

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801

Orlando, Florida 32801

Jennifer Leigh Blakeman, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801

Orlando, Florida 32801

Daniel Villazon, Esquire

Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

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.