CASE NO. 2952
DOAH CASE NO. 77-201
CHARLES J. ASTORE, JR.,
Defendant.
/
FINAL ORDER
At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarter 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 Plaintiff
No Appearance for Defendant
This matter came on for Final Order upon the Hearing Officer's Recommended Order and the Plaintiff's Exceptions thereto, and upon consideration thereof, together with a review of the complete record and oral argument of attorney for Plaintiff and the Commission, being fully advised in the premises, finds:
1.
That the Defendant Charles J. Astore, Jr., is presently registered with the Commission as a salesman at 501 N.W. 93rd Terrace, Pembroke Pines, Florida 33023.
2.
That the Plaintiffs Exceptions to the Hearing Officer's Recommended Order are well taken and should be accepted, while rejecting the Hearing Officers Conclusions of Law and recommendation and adopting his Findings of Fact to the extent that they are not inconsistent with the Plaintiff's Exceptions herein.
3.
That the Hearing Officers 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 J. Shackett and International Land Services Chartered Inc., Progress Docket No.l 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 Defendant, Charles J. Astore, Jr., was granted an initial registration as a real estate salesman on July 6, 1970 and was registered and operated as such in the employ of International Land Services Chartered Inc., a corporate real estate broker, from October 2, 1975 to February 9, 1976 and during the aforesaid period of time earned and was paid, by his employer, commissions for the total amount of $2,114.37.
6.
That the unrebutted testimony of Irving ALeon Malnick, a defendant in a similar case, Progress Docket 2962 (TR-280), given at the hearing in the case at bar, shows that Defendant Astore occupied a position of responsibility within the organization of International Land Services Chartered Inc. for it was this defendant who hired and caused Defendant Malnick to become employed with International Land Services Chartered, Inc..
7.
That the Commission finds that Defendant Charles J. Astore, Jr., by virtue of the position of responsibility he occupied within the corporate broker's organization, and as a result of the length of time he had been, by then, engaged in real estate activities, 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.
8.
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 landowners 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.
9.
That the Commission further finds that Defendant Charles J. Astore Jr., owed a duty of fair and honest dealing which the evidence clearly reflected he breached in that only the defendant received 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:
That the Plaintiff's Exceptions to the Hearing Officer's Recommended Order be, and they are hereby, sustained.
That the Hearing Officers Findings of Fact be, and they are hereby, adopted by the Commission to the extent that they are not inconsistent with the Plaintiff's Exceptions herein, and the additional findings of fact of the Commission as set out herein.
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 Plaintiff's Exceptions as filed.
That Plaintiffs Proffer No. 1 be, and the same is hereby, admitted into evidence.
That the Defendant Charles J. Astore, Jr., be, and he is hereby adjudged guilty of violating Subsection 475.25(1Xa) and 475.25(3), Florida Statutes.
That for such violations for which he was adjudged guilty, the registration of Defendant Charles J. Astore, Jr., be, and the same is hereby,
suspended for a period of one (1) year, said suspension to become effective upon the effective date of this order as provided by law.
That Defendant Charles J. Astore, Jr., 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.
