Astore v. Florida Real Estate Commission, s. 78-1333

• Citation: 374 So.2d 40
• Decision Date: 17 July 1979
• Docket Number: 78-1344 and 78-1352,Nos. 78-1333,78-1342,s. 78-1333
• Parties: Charles J. ASTORE, Jr., Richard H. White, Marian Malt, and Eli Parks, Appellants, v. FLORIDA REAL ESTATE COMMISSION, Appellee.
• Court: Florida District Court of Appeals

Page 40

374 So.2d 40

Charles J. ASTORE, Jr., Richard H. White, Marian Malt, and Eli Parks, Appellants, v. FLORIDA REAL ESTATE COMMISSION, Appellee.

Nos. 78-1333, 78-1342, 78-1344 and 78-1352.

District Court of Appeal of Florida, Third District.

July 17, 1979.

Rehearing Denied Sept. 11, 1979.

Howard Hadley, Orlando, and Manuel E. Oliver, Altamonte Springs, for appellee.

Before PEARSON, HENDRY and HUBBART, JJ.

HENDRY, Judge.

Appellants were each charged by administrative complaints with violations of § 475.25, Florida Statutes, the complaints having been filed by appellee, the Florida Real Estate Commission. The crux of the charges was that each of the individual appellants, registered real estate salespersons, had participated in solicitation by telephone and mail, for a fee, involving real estate listings from non-resident owners of real property located in Florida upon the representations that bona fide efforts would be made to sell the properties so listed, and that the representations were false and known to be false and made for the purpose of inducing said property owners to pay a listing fee in violation of § 475.25(1)(a). Further allegations were that by reason of the foregoing the individual real estate salespersons were guilty of a course of conduct or practice which showed that they each were so dishonest and untruthful that the money, property, transactions and rights of investors with whom they sustained a confidential relationship were not able to be safely entrusted to them. The proceedings continued from hearings before the respective hearing officers through the final hearings before the appellee-commission, pursuant to the Administrative Procedure Act, Chapter 120, Florida Statutes. Ultimately, each appellant herein was found guilty and their respective real estate sales registrations were suspended or revoked; final orders were entered by the appellee-commission which are the subject matter of this consolidated appeal. Since there are various and distinct points raised by the appellants, we shall discuss them separately where necessary.

CHARLES J. ASTORE, JR.

Appellant was charged with violations of Chapter 475. The hearing officer conducted a hearing after which he filed a recommended order finding Astore not guilty of the charges. Exceptions were filed by the appellee; a commission hearing on the exceptions to the hearing officer's recommended order was held and a final order subsequently entered. The final order adjudged Astore guilty and imposed a one-year suspension of his license to act as a real estate salesman.

Astore, by and through counsel, filed a notice of appeal with this court contending lack of proper notice and that there was insufficient evidence to support the commission's order. However, we cannot reach the merits of this appeal, since appellant's counsel filed a motion to withdraw from the cause which we granted, based upon the grounds stated in the motion. Appellant did not thereafter retain new counsel or proceed in proper person. Since appellant has wholely failed to demonstrate error, we affirm the order of the commission.

MARIAN MALT

This appellant was employed by a now-defunct corporation known as International Land Services Chartered, Inc.; she was a registered real estate salesperson who acted as a "listing solicitor" for a fee by calling out-of-state owners of Florida real property. The record shows that several of the out-of-state owners testified, Inter alia, that Malt represented to them that she and the real estate broker corporation had been instrumental in selling property in Florida for other similar owners; that she could sell the Florida properties within six months to a year for prices several times higher than the prices originally paid by the owners; that the owners were told that they would receive a warranty bond to guarantee full compliance by the broker corporation with the listing contract; that great emphasis was placed on the efforts to be made to sell the property and on the refund of the listing fee to the owner when the property was sold and the broker corporation earned a ten percent commission on the sale. The appellant's own testimony reveals that she worked at International Land Services Chartered, Inc. for nearly two years, working five days a week from 6:30 P. M. until 10:30 P. M.; that she and others working there obtained listings of properties only; that she received compensation for each listing obtained; that she made no efforts to sell the listed properties; that there were no other salespersons employed by the corporation who did saleswork in regard to the listed properties.

Based upon Malt's admissions, the documentary and testimonial evidence, the hearing officer found her guilty of misrepresentation, fraud, concealment and misconduct constituting a course of conduct which showed that she could not be entrusted with money, property, transactions and rights of investors with whom she had sustained a confidential relationship. The hearing officer's recommended order found that Malt's registration should be revoked; the commission adopted the recommended order, found her guilty of violating §§ 475.25(1)(a) and 475.25(3), and revoked her registration to sell real estate.

On appeal this appellant contends that scienter, a necessary element of the alleged violations, ¹ was lacking, since there was no competent, substantial evidence to show that Malt knew or should have known that the broker would not "follow through" on the sales promoted or that such efforts were not, in fact, made. The hearing officer and the commission found that appellant's extensive practical experience in the real estate business (consisting of fifteen years in Pennsylvania and five years in Florida), the testimony of the out-of-state owners, and appellant's own testimony to the...