12-001969PL Department Of Business And Professional Regulation, Florida Real Estate Commission vs. Theresia Marie Helton Status: Closed Recommended Order on Wednesday, January 30, 2013.

Summary: Failure to account for rental proceeds received on behalf of property owners warrants revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA REAL ESTATE COMMISSION , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1969PL

)

THERESIA MARIE HELTON , )

)

Respondent . )

)

RECOMMENDED ORDER

On October 29, 2012, an administrative hearing in this case

was conducted by video tele conference in Ft. Myers and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Ad minis trative Hearings.

APPEARANCES

F or Petitioner: Christina Ann Arzillo, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

For Respondent: Daniel Villazon, Esquire

Daniel Villazon, P.A.

Suite 200

1420 Celebration Boulevard

Celebration, Florida 34747

STATEMENT OF THE ISSUE S

The issue s in this case are whether the allegations of the

Amended Administrative Complaint are correct , and , if so, w hat

penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 21, 2011, the

Department of Business and Professional Regulation, Division of

Real Estate (Petitioner) , alleged that Theresa Marie Helton

(Respondent) failed to account for funds collected on behalf of,

and due to, the owners of rental prop erty managed by the

Respondent. The Respondent disputed the allegation and requested

a formal administrative hearing. The Petitioner forwarded the

request to the Division of Administrative Hearings, which

scheduled the hearing. On July 30, 2012, the Pet itioner filed a

Motion to Amend Administrative Complaint that was granted without

objection b y Order dated August 17, 2012.

At the hearing, the Petitioner presented the testimony of

four witnesses and had Exhibits numbered 1 through 18 admitted

into eviden ce. The Respondent testified on her own behalf an d

had Exhibits numbered 1 and 4 through 6 admitted into evidence.

A Transcript of the hearing was filed on December 6, 2012.

The parties filed a Joint Motion for Extension of Time to file

proposed recommen ded orders , and the m otion was granted.

Thereafter, the parties filed p roposed r ecommended o rders on

December 26, 2012, that have been reviewed in the preparat ion of

this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Resp ondent was

a licensed real estate broker, holding Florida license

numbers 3077530 and 3248280.

2. At all times material to this case, the Respondent was

the registered broker and dir ector of 1010 Apartments, Inc.

3. The Respondent's address of record is 4100 Corporate

Square Office Center, Suite 133, Naples, Florida 34104.

4. At all times material to this case, Leonard and Brenda

Brown, part - time Florida residents, owned two residential rental

properties in Naples, Florida.

5. The Respondent provided pr operty management services to

th e Browns.

6. There was no written agreement governing the services to

be provided by the Respondent to the Browns.

7. The Respondent first provided property management

services to the Browns' rental property located at 122 5 Reserve

Way, Unit 203 (her einafter "Reserve Way").

8. During the time that the Respondent managed the Reserve

Way rental for the Browns, the Respondent provided all relevant

documentation to the Browns, including the tenant's

identification and the leas e, various telephone contact numbers,

and the rent being paid. The Browns were satisfied with the

Respondent's management of the Reserve Way property.

9. The Browns' second rental property was located at

193 Santa Clara Drive, Unit 12 (hereinafter "Santa Clara").

Because Mrs. Brown was satisfied with the Respondent's management

of the Reserve Way property, she asked the Respondent to ma nage

the Santa Clara property.

10. Mrs. Brown testified that she expected that the Santa

Clara property would be manage d in the same way as the Reserve

Way property had been.

11. When the Respondent began to manage the Santa Clara

property, it was rented to tenants who had defaulted in making

their rent payments. In September 2010, the tenants were evicted

from the pro perty.

12. After the tenants were evicted, the Santa Clara

property required various repairs. On September 2, 2010, the

Respondent provided a written estimate of $3,500 to the Browns

for the costs of repairing the Santa Clara property and preparing

it to be rented again. On September 7, 2010, the Browns gave the

Respondent a check for $3,500 made payable to the Respondent's

company, 1010 Apartments, Inc., to pay for the repairs.

13. In October 2010, the Respondent asked the Browns if

they would agre e to a short - term lease of the Santa Clara

property, and they consented.

14. Communication between the Respondent and the Browns

thereafter became erratic. Between October 2010 and

January 2011, the Browns repeatedly contacted the Respondent to

inquire i nto the status of the Santa Clara property and were

dissatisfied with the i nformation they were provided.

15. The Respondent testified that she verbally advised the

Browns that the property had been rented and that the Browns

agreed to receive $600 each m onth as their share of rent. The

Respondent testified that she advised the Browns she would retain

the balance of the rental payment to reimburse for expenses

allegedly incurred in preparing the prop erty for the short - term

lease.

16. Mr. and Mrs. Brown r ecollect the Santa Clara

transaction differently. There is confusion as to whether both

of the Browns were aware that the property had been leased. In

any event, it is clear that there was no written agreement

between the Respondent and the Browns docume nting any agreement

as to the management of the property or the disposition of rental

proceeds. The Respondent provided no documentation to the Browns

related to any tenant in the Santa Clara property and provided no

accounting for any rental proceeds the Respondent received

related to the property.

17. In January 2011, the Browns, in Florida for the winter,

made contact with the Respondent , who agreed to meet with them at

the Santa Clara property on January 21, 2011.

18. On January 21, as the Brown s drove to the Santa Clara

property to meet with the Respondent, the Respondent called them

and stated that she was unable to keep the appointment, but

advised them that they could proceed to the property and meet the

tenant.

19. Prior to the Respondent's telephone call on January 21,

2011, Mr. Brown was apparently unaware that the Santa Clara

propert y had been rented to a tenant.

2 0 . The Browns drove to the Santa Clara property and met

the tenant. At the hearing, the tenant was identified as a

nurse, wo rking in Naples on a temporary basis, whose rent was

paid by her employer.

21. After meeting the tenant, the Browns called the

Respondent but were unsuccessful in contacting her by telephone.

22. On January 23, 2011, the Browns faxed a letter to the

Respondent, requesting documentation related to the Santa Clara

rental and information about the rental proceeds that had been

paid by the tenant's employer. The Respondent did not respond to

the Browns' letter.

23. After receiving no response from the Respondent,

Mrs. Brown contacted the tenant's employer and received copies of

the lease agreement as well as copies of four rent checks that

had been paid to the Respondent by the employer.

24. Mrs. Brown thereafter took responsibility for

management o f the Santa Clara property. The employer paid

monthly rent directly to the Browns until April 2011, when the

tenant vacated the property.

25. At the hearing, the Respondent testified that she was

owed funds for furnishing, managing , and maintaining the Santa

Clara property and that she retained the Browns' share of the

rent as reimbursement of her expenses.

26. The Respondent offered no credible evidence in support

of the testimony and no credible accounting of the funds she

received for the Santa Cl ara property on behalf of the Browns.

27. At the hearing, the Respondent offered an invoice from

"1010 Condo Cleaning" for $2,134.50, dated September 8, 2010,

which had a payment due date of September 8, 2010.

28. "1010 Condo Cleaning" is an entity ope rated by the

Res pondent's sister.

29. A p rinted statement on the invoice declared that it had

been paid by the Respondent's company, 1010 Apartments , Inc. ,

clearly indicating that the invoice had already been paid prior

to the time the invoice was actuall y printed. However,

notwithstanding the due and paid dates on the invoice, six of the

12 charges on the invoice were for charges allegedly incurred

after the date of the invoice, one as late as October 31, 2010.

Additionally, the invoice reflected charge s for repairs that had

been listed on the September 2, 2010 , estimate, which the Browns

had already paid.

30. The Respondent's testimony as to funds she allegedly

spent to acquire furnishings or household items for the Santa

Clara property lacked credib ility, was otherwise unsupported by

evidence, and has been rejected. The Respondent failed to

account for the funds she received from the Santa Clara tenant's

employer prior to January 21, 2011.

CONCLUSIONS OF LAW

31. The Division of Administrative Hea rings has

jurisdiction over the parties to, and subject matter of, this

proceeding. §§ 120.569 and 120.57(1), Fla . Stat. (201 2 ).

32. License revocations and disciplinary proceedings are

penal in nature. The Petitioner must demonstrate the

truthfulness o f the allegations in the Amended Administrative

Complaint by clear and convincing evidence. Dep ' t of Banking &

Fin . v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris

v. Turlington , 510 So. 2d 292 (Fla. 1987). In order to be "clear

and convincing , " 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." See Slomowitz v. Walker , 429 So. 2d

797, 800 (Fla. 4th DCA 1983). In this case, the burden has been

met.

33. In relevant part, s ection 475.25 , Florida Statutes

(2010) , provides as follows:

475.25 Discipline. --

(1) The commission may deny an application

for licensure, registration, or permit, or

renewal th ereof; 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 fo r 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:

* * *

(b) Has been guilty of fraud,

misrepresentation, concealment, false

promise s, 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 term s 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 enga ge in any such misconduct and

committed an overt act in furtherance of such

intent, design, or scheme. . . .

* * *

(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

do cument or thing of value, including a share

of a real estate commission if a civil

judgment relating to the practice of the

licenseeÓs profession has been obtained

against the licensee and said judgment has

not been satisfied in accordance with the

terms o f the judgment within a reasonable

time, or any secret or illegal profit, or any

divisible share or portion thereof, which has

come into the licenseeÓs hands and which is

not the licenseeÓs property or which the

licensee is not in law or equity entitled to

retain under the circumstances. . . .

34. The evidence clearly establishes that the Respondent

leased the Santa Clara property to a tenant without advising the

property owners that she had done so and that the Respondent

collected rent from the tenant's employer without accounting to

the property o wners for the rental payments.

35. At the hearing, the Respondent asserted that she had

expended funds on behalf of the property owners and that she was

entitled to retain rental payments she collected from th e

tenant's employer. The Respondent offered no credible

documentation of, or accounting for, her alleged expenditures,

an d her claim has been rejected.

36. Florida Administrative Code Rule 61J2 - 24.001 (2010)

sets forth disciplinary guidelines applicable to this proceeding.

Pursuant to the rule, a first violation of s ection 475.25(1)(b),

Florida Statutes, warrants an administrative fine ranging from

$1,000 to $2,500 and imposition of a license penalty from a 30 -

day suspension to revocation. The same rul e states that a first

violation of s ection 475.25(1)(d)1., Florida Statutes, warrants

an administrative fine ranging from $250 to $1,000 and imposition

of a license penalty from suspension to revocation.

RECOMMENDATION

Based on the foregoing Findings of Fa ct and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Real Estate, enter a

f inal o rder finding Theresa Marie Helton in violation of

s ection s 475.25(1)(b) and 475.25(1)(d)1. , Florida Statutes ( 2010) ,

and revoking the licenses identified herein.

DONE AND ENTERED this 30 th day of January , 2013 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Heari ngs

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 30 th day of January , 2013 .

COPIES FURNISHE D:

Christina Ann Arzillo, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

Daniel Villazon, Esquire

Daniel Villazon, P.A.

Suite 200

1420 Celebration Boulevard

Celebration, Florida 34747

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Juana Watkins, Director

Division of Real Estate

Department of Business and

Pr ofessional 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 th is Recommended Order should be filed with the agency that

will issue the Final Order in this case.