STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on March 31, 2010, by video teleconference in Tallahassee and Orlando, 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 Respondents: (No appearance)

STATEMENT OF THE ISSUES

The issues are whether the respondents committed the acts alleged in the Administrative Complaint; whether those acts violate Subsections 475.25(1)(b), (d)1., and (k), Florida

Statutes (2007)1; and, if so, what penalty, if any, should be imposed in this proceeding.

PRELIMINARY STATEMENT

On May 19, 2009, Petitioner filed a six-count Administrative Complaint against the respondents. The respondents timely requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner amended the Administrative Complaint to reduce the amount of the alleged deposit from

$50,000.00 to $10,000.00. Petitioner presented the testimony of one witness and submitted 12 exhibits for admission into evidence. The respondents did not appear at the hearing and did not otherwise submit any evidence.

The identity of the witnesses and exhibits and the rulings regarding each are reported in the Transcript of the hearing that was filed with DOAH on April 15, 2010. Petitioner filed its Proposed Recommended Order (PRO) on April 22, 2010. The respondents did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible, in relevant part, for regulating persons licensed in Florida as real estate brokers. Respondent, Juan Carlos Sanchez (Mr. Sanchez), is licensed in Florida as a real estate broker pursuant to license numbers 3087282, 3135276, 3134695, 3202672, and 3196365.2

   Respondent, Homefirst Realty Group, Inc. (Homefirst), is licensed as a real estate broker pursuant to license number CQ-1016872.3

2. Mr. Sanchez was licensed and was operating as the qualifying broker for Homefirst. Mr. Sanchez was the president and was in control of Homefirst at all times material to this proceeding. Homefirst is located at 2457 South Hiawassee Road, Suite A-280, Orlando, Florida 32825.

3. In 2007, a company identified in the record as Studio Parc at Kirkman (Studio Parc) sold condominiums located at 4601 South Kirkman Road, Orlando, Florida 32811. Sometime

   before October 31, 2007, Studio Parc employed the respondents as the on-site brokers.

4. On October 31, 2007, the respondents entered into a contract with Mr. Roman Segundo Bracho Mendez (Mr. Mendez) for the sale and purchase of Studio Parc condominium unit

   number 8205 (Unit 8205). Mr. Mendez was a citizen of Venezuela. Mr. Sanchez had made the sale pursuant to a sales plan he developed by which buyers were to make a 20 percent down-payment to a bank account in Venezuela that Mr. Sanchez established for that purpose but which was not an escrow or title company account. The plan called for Mr. Sanchez to effectuate a currency exchange, transfer the money to a title company in the United States, and proceed to closing.

5. Mr. Sanchez sent a letter of instructions to his sales staff concerning the plan. However, Mr. Sanchez failed to maintain any procedures for controls that adequately monitored deposits and payouts of the account in Venezuela.

6. Mr. Mendez deposited $10,000.00 into the account in Venezuela as a purchase deposit for Unit 8205. The contract for Unit 8205 did not close, and the respondents have not returned the deposit to Mr. Mendez.

7. The cost of the investigation for Mr. Sanchez is

   
   

   $366.30. The cost of the investigation for Homefirst is

   
   

   $359.70.

   
   

   CONCLUSIONS OF LAW

   
   

8. DOAH has jurisdiction over the parties and the subject matter in this proceeding pursuant to Subsections 120.569 and 120.57(1), Florida Statutes (2009). DOAH provided the parties with adequate notice of the final hearing.

9. The burden of proof 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 Heath and Rehabilitation Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner must show by clear and convincing evidence that the respondents committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty.

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

10. Petitioner satisfied its burden of proof. The evidence is clear and convincing that the respondents violated Subsections 475.25(1)(b), (d)1., and (k), respectively, by: committing culpable negligence; failing to account or deliver such funds as required by law; and failing to immediately place a deposit entrusted to them as brokers in escrow until disbursement is properly authorized.

11. Subsection 475.25(1) authorizes a range of disciplinary action against the licenses of the respondents, including revocation and an administrative fine up to $5,000.00. Petitioner proposes revocation and an administrative fine of

    $5,000.00. Considering the facts and circumstances in this proceeding, including the continuing and unmitigated harm and egregious disregard of Florida escrow requirements, the proposed penalty is reasonable under the circumstances of this case.

12. Subsection 455.227(3)(a) authorizes the recovery of investigative and administrative costs. Petitioner incurred such costs in the aggregate amount of $726.00.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order finding each of the respondents guilty of the charges

alleged in the Administrative Complaint; ordering the respondents to severally pay one administrative fine of

$5,000.00 and collectively pay investigative and administrative costs of $726.00; and revoking the broker licenses of the respondents that are at issue in this proceeding within 30 days of the date that this proceeding becomes final.

DONE AND ENTERED this 4th day of May, 2010, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2010.

ENDNOTES

1/ All references to subsections, sections, and chapters are to Florida Statutes (2007), unless otherwise stated.

2/ The five license numbers in this finding are the only license numbers cited in the Administrative Complaint and are, therefore, relevant in this proceeding for Mr. Sanchez.

Petitioner's Exhibit 1 lists three additional license numbers for Mr. Sanchez as numbers 3100533, 3137348, and 3192363. The status of the additional license numbers not included in the Administrative Complaint is listed in Petitioner’s Exhibit 1 as void as is the status of those license numbers listed in the

Administrative Complaint as numbers 3087282, 3134695, and 3202672. It is unclear from the record why Petitioner is prosecuting some of those licenses of Mr. Sanchez that are void and not prosecuting other licenses that are void.

3/ The license of Homefirst was void due to non-renewal as of the date of the hearing.

COPIES FURNISHED:

Jennifer Leigh Blakeman, Esquire Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801 Orlando, Florida 32801

Juan Carlos Sanchez Homefirst Realty Group, Inc.

2457A South Hiawassee Road, Suite 280 Orlando, Florida 32835

Reginald Dixon, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802N 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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 09-006736

Orders for Case No: 09-006736