Black v. Arkansas Real Estate Commission, 81-162

• Decision Date: 01 February 1982
• Docket Number: No. 81-162,81-162
• Parties: Steve BLACK, Appellant, v. The ARKANSAS REAL ESTATE COMMISSION, et al., Appellees.
• Court: Arkansas Supreme Court

Page 954

626 S.W.2d 954

275 Ark. 55

Steve BLACK, Appellant, v. The ARKANSAS REAL ESTATE COMMISSION, et al., Appellees.

No. 81-162.

Supreme Court of Arkansas.

Feb. 1, 1982.

Mitchell, Williams, Gill & Selig, Little Rock, for appellant.

Steve Clark, Atty. Gen. by Nelwyn L. Davis, Asst. Atty. Gen., for appellees.

PURTLE, Justice.

The appellant was brought before the Arkansas Real Estate Commission because of complaints filed against him by several persons. The complainants were people to whom the appellant had sold property in rural Pulaski County, Arkansas. The Commission found that appellant had violated the provisions of Ark.Stat.Ann. § 71-1307(a)(b)(h) and (j) (Repl.1979) as well as Commission Rule 40. His license was suspended for a period of six months. He appealed to the Pulaski County Circuit Court which affirmed the action of the Commission.

The appellant contends the Commission had no authority to review the actions of a licensed broker or salesman which actions were performed in a capacity other than as a licensed broker or salesman. He argues that since the actions complained of did not require the person committing the acts to hold either a broker's or salesman's license the Commission was without authority to act on the complaints filed against him. We disagree with the appellant.

The facts reveal appellant and his wife owned a tract of land in western Pulaski County which they attempted to convert into a subdivision. Several persons purchased lots, usually in 5-acre tracts, in the subdivision. Most, if not all of the persons involved, testified that appellant promised to construct a good all-weather road in the area but he failed and refused to do so. The promises were not made in written form nor were they included in the purchase agreements or deeds. Most of the complaining witnesses testified that they called the appellant as a result of an advertisement in the classified ad sections of local newspapers. Most of them met the appellant in his real estate office where his broker's license was displayed in a prominent place. He told the purchasers that although he was a broker the lots being sold were owned by him and his wife. No commissions were expected or paid on the sales.

For the purpose of this opinion it is clear that the appellant committed acts which would be in violation of the statutes in question. It is equally clear that the acts he performed could have been done by one who did not have a broker's or salesman's license. The question at issue is whether the Real Estate Commission has the authority to govern the acts of licensed salesmen and brokers who are acting on matters which do not require a license.

The Commission's entire case is based upon Ark.Stat.Ann. § 71-1307, the pertinent part of which reads as follows:

The Commission may upon its own motion and shall upon the verified complaint in writing of any person, provided such complaint, or such complaint with evidence, documentary or otherwise, presented in connection therewith shall make out a prima facie case, investigate the actions of any real estate broker or real estate salesman, or any person who shall assume to act in either such capacity within this State and shall have power to suspend or to revoke any license issued under the provisions of this Act (§§ 71-1301-71-1311); at any time where the licensee has by false or fraudulent representation obtained a license, or where the licensee in performing or attempting to perform any of the acts mentioned herein is deemed to be guilty of:

(a) Making any substantial misrepresentation, or

(b) Making any false promises of a character likely to influence, persuade or induce, or

(c) ..., or

(d) ..., or

(e) ..., or

(f) ..., or

(g) ..., or

(h) Being unworthy or incompetent to act as a real estate broker or salesman in such manner as to safeguard the interests of the public, or

(i) ..., or

(j) Any other conduct whether of the same or a different character from that hereinbefore specified which constitutes improper, fraudulent or dishonest dealing.

One way to read this statute would be:

The Commission may upon its own motion ... suspend or ... revoke any license issued under the provisions of this Act ... where the licensee has by false or fraudulent representation obtained a license, or where the licensee (is) performing ... any of the acts mentioned herein ...

The acts "mentioned herein" are the same as those listed above in (a), (b), (h) and (j). We grasp the thrust of the appellant's interpretation of the statute and recognize that it is not completely unfounded. The statute is not artfully drawn. It is contended that that section which states "... investigate the actions of any real estate broker or real estate salesman, or any person who shall assume to act in either such capacity ..." would not apply to appellant, as he was not acting or assuming to act as a real estate broker. To so isolate this sentence would be to misinterpret the statute. The second section which gives the appellant grounds for argument reads "... where the licensee in performing or attempting to perform any of the acts mentioned herein ...." Again, if you read only that portion of the sentence, it would give the impression that appellant was correct in his interpretation of the statute that the Commission could only take action against a licensed broker or salesman. However, in an over-all reading of the statute it is fairly clear that the "acts mentioned herein" means the acts listed following this portion of the statute, the applicable ones being (a), (b), (h) and (j). Therefore, in reading the statute in its totality it states that the Commission shall have the power, under circumstances stated therein, to discipline a real estate broker or salesman or "... any person who shall assume to act in either such capacity ...." The last quoted portion is an attempt to give the Commission...