STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-212

) P.D. NO. 2964

ALBERT PEARL, )

)

Respondent. )

)

RECOMMENDED ORDER

The hearing was held pursuant to notice in Room 208, Federal Building, Miami, Florida, on January 24 and 25, 1978 by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Florida Real Estate Commission against Albert Pearl, which alleged that Pearl violated Section 475.25(1)(a), Florida Statutes, by knowingly making false representations to individuals to induce them to subscribe to services of the International Land Services Chartered, Inc. and thereby Pearl had engaged in a course of conduct which shows that he cannot be entrusted with the money or things of others in violation of Section 475.25(2), Florida Statutes.

The Florida Real Estate Commission presented evidence that Pearl was employed by International Land Services Chartered, Inc. and that he received income in the form of commissions from International Land Sales Chartered, Inc. Pearl testified that he worked on Saturdays and Sundays for International Land Services Chartered, Inc. and was paid $25 per day, plus $20 to $30 when a prospect he had contacted subscribed to the services of the company. He described his duties with International Land Services Chartered, Inc.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

Florida Real Estate Commission

400 W. Robinson Avenue Orlando, Florida

For Respondent: Albert Pearl

10185 Collins Avenue

Apartment 1106

Miami Beach, Florida 33154 ISSUE

Whether Albert Pearl is guilty of violating the provisions of Section 475.25(1)(a) and (2), Florida Statutes.

FINDINGS OF FACT

1. Albert Pearl is a registered real estate salesman.

   
   

2. Albert Pearl worked for International Land Services Chartered, Inc. from January to March, 1976. He earned $25 per day while working Saturdays and Sundays and earned $20 to $30 when a person who he had contacted subscribed to services of International Land Services Chartered, Inc.

   
   

3. Pearl described his duties as a "fronter" or a person whose job it was to establish initial contact with a prospect. His job was not to sell the services of International Land Services Chartered, Inc. but to determine whether the individual who he contacted was interested in those services. He gave the names of those from whom he received a positive response to Sam Lerner, a manager in the office during the weekends. These prospects were then contacted by individuals working during the week called "closers".

   
   

4. Pearl left International Land Services Chartered, Inc. when he read about the problems with advance fees in the newspapers.

   
   

   CONCLUSIONS OF LAW

   
   

5. Albert Pearl is charged with violation of Section 475.25(1)(a) and (2), Florida Statutes, in that he made false representations to individuals to induce them to use the services of International Land Services Chartered, Inc. There is no evidence contained in the record presented by the Florida Real Estate Commission or in the testimony of Pearl himself indicating any representations which he made to individuals which were false.

   
   

6. The Florida Real Estate Commission has the burden to go forward and prove the allegations contained in the Administrative Complaint. In the absence of substantial and competent evidence proving the allegations, the allegations are not proven.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Albert Pearl as a registered real estate salesman.

DONE and ORDERED this 7th day of April, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Manuel E. Oliver, Esquire Florida Real Estate Commission

400 W. Robinson Ave.

Orlando, Florida

Albert Pearl

10185 Collins Avenue

Apartment 1106

Miami Beach, Florida 33154

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

Petitioner, PROGRESS DOCKET NO. 2964 DADE COUNTY

vs. DOAH CASE NO. 77-212

ALBERT PEARL,

Respondent.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Orlando, Florida on May 18, 1978,

Present: Maggie S. Lassetter, Chairman Levie D. Smith, Jr., Vice Chairman Arthur N. Hamel, Member

Appearances: Manuel E. Oliver

Attorney for Petitioner

No Appearance for Respondent

This matter came on for Final Order upon the Hearing Officer's Recommended Order and the Petitioner's Exceptions thereto, and upon consideration thereof, together with a review of the complete record and oral argument of attorney for Petitioner and the Commission, being fully advised in the premises, finds:

1.

That the Respondent Albert Pearl is presently registered with the Commission as a salesman at 10185 Collins Avenue, Apt. 1106, Bal Harbour, Florida 33154.

2.

That the Petitioner's Exceptions to the Hearing Officer's Recommended Order are well taken and should be accepted while rejecting the Hearing Officer's Conclusions of Law and recommendation and adopting his Findings of Fact to the extent that they are not inconsistent with the Petitioner's Exceptions herein.

3.

That the Hearing Officer's Recommended Order should be rejected as it does not conform with the provisions pertaining to evidence in chapters 120 and 475, Florida Statutes, and the rules promulgated therein and the applicable case law.

4.

That plaintiff'S Proffer No. 1, consisting of certified copies of the Administrative Complaint Recommended Order and Final Order filed in the case of Jack King v. Allen Shackett and International Land Services Chartered Inc., Progress Docket No. 2803, and certified copies of the orders issued by the District Court of Appeal of Florida, Third District, in the case of Allen J. Shackett and International Land Services Chartered, Inc. v. Florida Real Estate Commission, ex rel Jack King, Case No. 77-59, should be admitted into evidence by reason of the provision in Subsection 120.58(1)(a), Florida Statutes and pursuant to the Court's findings in Foreman v. State Board of Accountancy 243 So.2d 4 (Fla. 3d DCA 1971).

5.

That the Respondent, Albert Pearl was granted an initial registration as a real estate salesman on January 23, 1967 and was registered and operated as such in the employ of International Land Services Chartered, Inc., a corporate real estate broker, from January 2, 1976 to July 23, 1976 and during the aforesaid period of time earned and was paid, by his employer, commissions for the total amount of $1490.00.

6.

That the Commission finds that Respondent Albert Pearl as a result of the length of time he had been, by then, engaged in real estates activities and in the employ of International Land Services Chartered Inc., knew or should have known that International Land Services Chartered Inc. was organized for the primary purpose of obtaining listings of property for a fee and that the representations made by the company and its salesmen, including the defendant, that bona fide efforts would be made to sell the property listed, were false and were made for the sole purpose of inducing the clients to forward a listing fee.

7.

That the Commission further finds that the real estate broker's registration of Allen J. Shackett and International Land Services Chartered, Inc. were revoked by Final Order of the Commission on December 7, 1976, Progress

Docket 2803, upon a finding that those defendants operated an advance fee listing business designed and carried out with the sole intention of extracting monies from landowner and with no intent to fulfill the stated promise to engage in earnest efforts to sell the property listed, which acts and conduct were in violation of the Florida Real Estate License Law.

8.

That the Commission further finds that Respondent Albert Pearl owed a duty of fair and honest dealing which the evidence clearly reflected he breached in that once the defendant deceived a share of the advance fee, his interest and involvement in the transaction abruptly ended. As stated by Justice Terrell in the case of Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927):

The real estate business is not an avenue by which one may practice the tricks of his trade or prey on the innocent and unsuspecting purchaser, nor is it a cloak to cover fraud and deception, or a means for designing persons to short-circuit those who would deal squarely and in good faith It is indeed a highly respectable business or profession; its ethics are well defined and presumed to be known to those who patronize or engage in that business. No business known to modern society has a longer or more respectable history. Real estate is a primary security for credit in all the civilized countries of the earth, and the real estate broker in our time, and long has been, the medium through which annually many millions of dollars in earnings and savings are secured or invested. He is the agent of his principal in every sense, and when that relation is undertaken, a fiduciary relation

is created which bars the agent from becoming interested in the business or property antagonistic to his principal without his knowledge or consent. Every man, in other words, to whom a business is entrusted by another, has a trust to perform; and every man is a trustee whose business is to advise concerning or to operate the business of another.

IT IS THEREFORE ORDERED:

1. That the Petitioner's Exceptions to the Hearing Officer's Recommended Order be, and they are hereby, sustained.

   
   

2. That the Hearing Officer's Findings of Fact be, and they are hereby, adopted by the Commission to the extent that they are not inconsistent with the Petitioner's Exceptions herein, and the additional findings of fact of the Commission as set out herein.

3. That the Hearing Officer's Conclusions of Law and recommendation be, and they are hereby, rejected by the Commission, for the reasons stated in this order and the Petitioner's Exceptions as filed.

   
   

4. That plaintiff'S proffer No. 1 be, and the same is hereby, admitted into evidence.

   
   

5. That the Respondent Albert Pearl be, and he is hereby adjudged guilty of violating Subsection 475.25(1)(a) and.475.25(3), Florida Statutes.

   
   

6. That for such violations for which he was adjudged guilty, the registration of Respondent Albert Pearl be, and the same is hereby, suspended for a period of six months, said suspension to become effective upon the effective date of this order as provided by law.

   
   

7. That Respondent shall immediately surrender his certificate of registration as a salesman to the Florida Real Estate Commission at its Executive Headquarters in Orlando, Florida upon receipt of this order, by return mail.

DONE and ORDERED this 18th day of May, 1978.

MAGGIE S. LASSETTER, Chairman

LEVIE D. SMITH, JR., Vice-Chairman

ARTHUR N. HAMEL, Member

I HEREBY CERTIFY that a copy of the foregoing Final Order was mailed to Albert Pearl, 10185 Collins Avenue, Apt. 1106, Bal Harbour, Florida 33154 by United States certified mail this 8th day of June, 1978.

Executive Director

NOTICE TO RESPONDENT:

This Order shall become effective upon the 10th day of July,

1978. However, you have the right of review by an appellate court if you so desire.

Docket for Case No: 77-000212

Orders for Case No: 77-000212