Judges: SHARYN L. SMITH
Agency: Department of Business and Professional Regulation
Latest Update: Aug. 15, 1980
Summary: Petitioner failed to prove Respondent is guilty of retaining rental funds which were never proven to be distributed to Respondent by tenants.
80-0391.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )
)
Petitioner, )
)
vs. ) CASE NO. 80-391
)
ULEATHA J. THOMAS, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for hearing in St. Petersburg, Florida, before the Division of Administrative Hearings and its duly designated Hearing Officer, Sharyn L. Smith, on June 6, 1980. The parties were represented as follows:
APPEARANCES
For Petitioner: John Huskins, Esquire
Staff Attorney
Department of Professional Regulation 2009 Apalachee Parkway
Tallahassee, Florida 32301
For Respondent: Uleatha J. Thomas, Pro Se
2346 Melrose Avenue South
St. Petersburg, Florida 33712
The Petitioner, Department of Professional Regulation, Board of Real Estate, (hereafter "Board"), filed an administrative complaint against Ms. Thomas which seeks to revoke, suspend or take other disciplinary action against the Respondent's license to practice. The First Count of the complaint alleged the failure of the Respondent to produce or keep and produce documents upon subpoena. The Second Count alleged that Respondent was guilty of fraud, misrepresentation, concealment, dishonest dealing and breach of trust for, inter alia, failure to account for $322.00 allegedly due the owner of certain rental property managed by the Respondent.
Following the close of the hearing, counsel for the Board moved that the testimony of Mr. J. Clair Lanning be stricken due to failure to comply with discovery. The Motion is hereby denied.
A Proposed Recommended Order has been submitted by the Respondent. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence, or were considered immaterial to the results reached.
FINDINGS OF FACT
The Respondent holds a real estate license and is a registered real estate broker. (Petitioner, Exhibit 1 and 2)
The Respondent was a thirteen (13) year employee of Mr. J. Clair Lanning, who in 1969 executed a property management agreement with Mr. A. W. Ross, to manage a 5-unit apartment building at 1033 19th Avenue South, St. Petersburg, Florida. (Testimony of Lanning, Respondent Exhibit 3).
Upon Mr. Lanning's retirement in the mid-seventies, the Respondent continued to manage Mr. Ross' property by agreement of the parties. (Testimony of Lanning).
The written agreement did not require that monthly statements be furnished to Mr. Ross, although Mr. Ross stated that the Respondent verbally agreed to such a procedure and a prior written agreement between Mr. Lanning, Mr. Ross and a previous owner required monthly statements. (Testimony of Ross, Respondent Exhibit 1).
The Respondent furnished monthly statements to Mr. Ross until she became bedridden due to a serious accident. (Testimony of Ross, Thomas and Lanning).
Following the Respondent's accident, the office files were moved from her office to her bedroom and the statements were generally not furnished on a monthly basis. (Respondent Exhibit 2).
The apartments were in a low income area, and were subject to substantial variations in occupancy. The tenants could be described as "transients" and, accordingly, made payments on a weekly basis. (Testimony of Brown and Lanning).
The Respondent was given a "free hand" in making repairs and maintaining the building. (Testimony of Ross).
In return for managing the property, the Respondent was paid $50.00 per month.
The Respondent has complied with the request for an accounting to the best of her abilities. (Testimony of Thomas, Ross and Lanning).
Although a former tenant testified that she gave rent monies to a girl who she thought to be Respondent's daughter, and such monies were not accounted for by the Respondent, there is no reason to believe that the girl in question was the Respondent's daughter or that the Respondent ever received such payment. (Testimony of Brown).
No testimony or documents were presented which support the allegation that the Respondent received any monies from March 1 through March 15, 1978, which were not accounted for.
During the course of this investigation, a Board investigator requested and received access to the records in the possession of the Respondent relating to the subject property that she was required to keep pursuant to the written agreements. Certain of the records were unavailable to the investigator because they were destroyed in an office fire. (Testimony of Thomas).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this proceeding.
As to Count One of the Administrative Complaint, there is insufficient evidence to support a finding that the Respondent violated Rule 21V-14.05, Florida Administrative Code. Assuming the applicability of the rule to the circumstances of this case, the Board failed to adduce sufficient competent and substantial evidence to establish a prima facie case that the Respondent failed to keep an accurate account of payments received or refused to make such records of account in her possession available to the Board investigator.
As to Count Two, there is insufficient competent and substantial evidence to establish a prima facie case that the Respondent received any rental monies on the subject property that were not accounted for to Mr. Ross or failed to make repairs for which reimbursements were sought.
Accordingly, since there is a lack of competent and substantial evidence to support the material factual allegations set forth in the administrative complaint, it is
RECOMMENDED:
That the complaint be dismissed.
DONE and ORDERED this 27th day of June, 1980, in Tallahassee, Florida.
SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
John Huskins, Esquire
Staff Attorney, Legal Section Department of Professional Regulation 2009 Apalachee Parkway
Tallahassee, Florida 32301
Uleatha J. Thomas
2346 Melrose Avenue South
St. Petersburg, Florida 33712
C. B. Stafford
Board Executive Director Florida Real Estate Commission
400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32802
Docket for Case No: 80-000391
Orders for Case No: 80-000391
| Issue Date |
Document |
Summary |
|
Jul. 28, 1980 |
Agency Final Order
|
|
|
Jun. 27, 1980 |
Recommended Order
|
Petitioner failed to prove Respondent is guilty of retaining rental funds which were never proven to be distributed to Respondent by tenants.
|
