STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2292

)

GEORGE W. PINKERTON, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lakeland, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on March 14, 1978.

APPEARANCES

For Petitioner: Kenneth A. Meer, Esquire

400 West Robinson Avenue Orlando, Florida 32801

For Respondent: Respondent appeared in propria persona

By administrative complaint filed October 3, 1977, petitioner alleged that respondent, while he was a registered real estate salesman, entered into an agreement "to auction five mobile homes for Transamerica Homes Company;" that the auction took place on November 15, 1975, in accordance with the agreement, as modified; that respondent "remitted a check for $7,680 to Transamerica as part payment . . . [which] was returned for insufficient funds;" and that "by reason of the foregoing [respondent violated] . . . Subsection 475.25(1)(a) Florida Statutes, and . . . Subsection 475.25(1)(d), Florida Statutes."

In a second count, petitioner alleged that respondent subsequently paid Transamerica Homes Company five thousand dollars, then "wrote a letter to [Transamerica's lawyer] claiming a larger commission than due him under the auction agreement;" that Transamerica eventually obtained a judgment against respondent for "$2,680 plus costs;" and that, "by reason of the foregoing . . . [respondent violated] Subsection 475.25(1)(a), Florida Statutes, and . . .

Subsection 475.25(1)(d), Florida Statutes."

The administrative complaint alleges that [n]o real estate was involved" and that respondent's "agreement was as an auctioneer and not handled through any real estate firm." William S. Hagar whom the administrative complaint names as complainant is identified as counsel for "the parent company of Transamerica Home [sic] Company."

FINDINGS OF FACT

1. Respondent Pinkerton has been a registered real estate broker since May 19, 1976, before which he was a real estate salesman registered with Strout Realty, Inc.

   
   

2. On October 29, 1975, respondent entered into an agreement with Transamerica Homes Company (Transamerica) to sell at auction five mobile homes belonging to Transamerica. On November 15, 1975, respondent acted as auctioneer at an auction at which all five mobile homes were sold. After receiving some of the proceeds of the sale, Transamerica's agents asked respondent to remit an additional seven thousand six hundred eighty dollars ($7,680.00). Respondent told Robert P. Wold, Transamerica's authorized representative in Florida, that he did not have that much money because he had borne expenses in connection with the auction that Transamerica should have paid. After telling Transamerica's agents that he did not have sufficient funds to cover such a check, respondent nonetheless drew and mailed a check in the amount of seven thousand six hundred eighty dollars ($7,680.00), in the belief that Mr. Wold wanted him to write the check even though the funds to cover it were not on deposit.

   
   

3. When the check was presented to the American Bank of Lakeland, on which it was drawn, petitioner had four thousand nine hundred fifty-three dollars and fifty-three cents ($4,953.53) on deposit, and the bank dishonored the check. After the check was returned for insufficient funds, Mr. William S. Hagar telephoned respondent on behalf of Transamerica to discuss the matter. Respondent said he would send another check in the amount of two thousand five hundred dollars ($2,500.00) within a week, which he did. Another week passed; another telephone call transpired between Mr. Hagar and respondent; and respondent sent a second check in the amount of two thousand five hundred dollars ($2,500.00). Both of the checks respondent had drawn for two thousand five hundred dollars ($2,500.00) were paid upon presentment.

   
   

4. On March 13, 1976, respondent wrote Mr. Hagar a letter in which he stated:

   
   

   At this point, due to the many problems involved in the Auction of the Mobile Homes on the 15th of November, 1975 at Skyview Waters in Lakeland, I feel I am entitled to additional compensation.

   First of all, it is almost unheard of in an auction of this kind for less than 20 percent commission. I was assured [sic] by Mr. Robert Wold of his assistance in preparing the sale. He and Mr. Paul Harris were supposed to provide the arrangements for financing. They did absolutely nothing. They were supposed to assist prospects in locating lots and people to handle moving,

   setups, driveways and other improvements. By our agreement my only obligation was to be to supervise and provide auctioneer voice. I think you are quite aware that the entire operation was left for me to do at about 1/4 the commission I should have been paid plus the fact that I was forced to split the meager commission I earned with two other

   people. So, I ended up with less than $1000 gross commission on a sale that should have netted me at least $10,000.

   
   

   On March 16, 1976, Mr. Hagar replied, sending a copy of his letter to the Florida Real Estate Commission:

   
   

   This letter acknowledges receipt of your truly [sic] amazing letter of March 12, 1976.

   I have reviewed the Auction Agreement which you executed, a copy attached for your information and edification. The language is clear, unambiguous and the obligations of both parties are stated plainly. We have honored our obligations completely and we expect you to honor yours. Paragraph 2) stated you will be ". . . solely responsible in setting up and conducting the auction sale without interference from anyone. . ." Paragraph 3) states you ". . . shall retain Four percent of the bid price received, as commission . . ." for your services. Lastly, Paragraph 6) states there are ". . . no oral representations, agreements or understandings between either of the parties. . . ".

   * * *

   We have been patient and forbearing in allowing you the opportunity to make restitution without resorting to the full remedies available under the law to us . . . I assure you that unless we receive your certified check in the amount of $2,680 by March 24, 1976, we shall exercise each and every remedy so available.

   
   

   On March 26, 1976, Mr. Hagar, not having heard from respondent, engaged Florida counsel who eventually succeeded in obtaining a default judgment against respondent in the amount of two thousand six hundred eighty dollars ($2,680.00) plus costs. This judgment had not been satisfied at the time of the hearing in the present proceeding.

   
   

5. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner established that respondent drew a check against insufficient funds, after informing the payee that there were insufficient funds, and that he mailed the check to payee, to whom he was already indebted. Petitioner also established that a judgment against respondent remains unsatisfied. Petitioner failed to establish, however, any violation of Section 475.25(1)(a) or (d), Florida Statutes (1977). Although the statute forbids "fraud, misrepresentation . . . in any business transaction," Section 475.25(1)(a), Florida Statutes (1977), and is not limited in its application to

real estate transactions, McKnight v Florida Real Estate Com'n, 202 So.2d 199 (Fla. 2d DCA 1977), the evidence established no basis for disciplinary action against respondent's real estate broker's license.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the administrative complaint be dismissed.

DONE and ENTERED this 24th day of April, 1978, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

904/488-9675

APPENDIX

Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not establish when respondent became associated with Strout Realty, Inc. Respondent's letter of March 12, 1976, to Mr. Hagar was written on Strout Realty, Inc. stationery, however.

Paragraph two of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the check was for only a part of Transamerica's claimed share of the sale proceeds. Respondent did in fact know that he had insufficient funds to cover the check, a fact of which he made no secret.

Paragraph three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant.

COPIES FURNISHED:

Kenneth M. Meer, Esquire

400 West Robinson Avenue Orlando, Florida 32801

Mr. George W. Pinkerton 2833 East Highway 92

Lakeland, Florida 33801

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

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

Petitioner,

vs. CASE NO. 77-2292

GEORGE W. PINKERTON,

Respondent.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Orlando, Florida on June 21, 1978,

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

APPEARANCES: Kenneth M. Meer

Attorney for the Plaintiff

George W. Pinkerton Defendant

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 the Petitioner and the Respondent, the Commission, being fully advised in the premises, finds:

1.

That the Respondent, George W. Pinkerton, is presently registered with the Commission as a broker at 2833 East Highway 92, Lakeland, Florida 33801.

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 Commission finds that Respondent Pinkerton, while employed as an auctioneer of mobile homes, wrote a check which was dishonored for insufficient

funds and that he knew (or should have known) that his account could not cover the check. Respondent stated in his testimony that he drew the check regardless of this belief. The evidence also establishes that a judgment was rendered against Respondent which has remained unsatisfied to this day.

4.

That the Commission's authority to discipline Respondent Pinkerton for his activities in the above transactions are derived from McKnight v. Florida Real Estate Commission, 202 So.2d 199 (Fla. 2nd DCA 1967), wherein the Court stated that the Commission did not exceed its jurisdiction because worthless checks were issued as a result of a non-real estate transaction; and in Florida Real Estate Commission v. Williams, 240 So.2d 304 (Fla. 1970) wherein the Florida Supreme Court upheld the reasoning in McKnight.

5.

That the Commission further finds that Respondent Pinkerton owed a duty of fair and honest dealing which the evidence clearly reflected he breached, in that the Respondent drew a check which was dishonored for insufficient funds and, as a result, had a judgment rendered against him which has remained unsatisfied to this day.

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 Recommendations be, and they are hereby, rejected by the Commission for the reasons stated in this Order and in the Petitioner's Exceptions as filed.

   
   

4. That the Respondent be, and he is hereby, adjudged guilty of violating Subsection 475.25(1)(a), Florida Statutes, in Counts One and Two.

   
   

5. That for such violations for which he was adjudged guilty, the registration of Respondent George W. Pinkerton be, and the same is hereby, suspended for six months, with five months of said sentence itself to be suspended.

   
   

6. That Respondent Pinkerton shall immediately surrender his Certificate of Registration as a broker 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 21st day of June 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 George W. Pinkerton at 2833 East Highway 92, Lakeland, Florida 33801 and at 111 Fern Road, Lakeland, Florida 33801 by United States certified mail this 23rd day of June, 1978.

Executive Director

NOTICE TO RESPONDENT:

This Order shall become effective upon the 26th day of

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

You are to comply with this Order. We are enclosing an envelope for your convenience in returning your Certificate on or before the effective date of this Final Order.

Docket for Case No: 77-002292

Orders for Case No: 77-002292