STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION ) ex rel. GEORGE J. SAUNDERS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-010

) JOHN R. PERRONI, t/a J.R. ) PERRONI REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers,

held a public hearing in the above styled cause on March 12, 1976 at Bushnell, Florida.

APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

Associate Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: J. Richard Rahter, Esquire

1135 Pasadena Avenue South, Suite 315 St. Petersburg, Florida

By Administrative Complaint filed December 5, 1975 the Florida Real Estate Commission, Petitioner herein, seeks to revoke or suspend the registration as a broker of John R. Perroni, Respondent, t/a J. R. Perroni Real Estate, on the grounds that Respondent while serving as a real estate salesman, was guilty of fraud, concealment, dishonest dealings and breach of trust in a business transaction in violation of Section 475.25(1)(d) and (f) Florida Statutes. Five witnesses testified on behalf of the Commission, two witnesses testified on behalf of Respondent, and eight exhibits were admitted into evidence. Having considered all the evidence the following is submitted.

FINDINGS OF FACT

1. In February, 1974 Respondent was a registered real estate salesman working for John R. Finn, a registered real estate broker who operated a branch office at Lake Panasoffkee, Florida. Sam R. Perroni, the father of Respondent, was the office manager of this branch office and a registered real estate salesman. Sam Perroni obtained an open listing on a parcel of land with a house trailer affixed thereto from Eugene Bays, President of Bays Construction Company, the owner of the property. Bays agreed to pay the usual commission of

   6 percent if the property was sold through the effort of Finn Realty. The list price of the property was $12,500.

   
   

2. Mrs. Dorothy B. Johnson was shown the property by Respondent and thereafter the property was shown to her and her husband Joseph P. Johnson. Following this visit to the property the Johnsons inquired of Respondent if seller would take $12,000, to which he replied he didn't think so. Johnson then offered to pay Respondent $250 if he could persuade the seller to sell the property for $12,000. Respondent then called Eugene Bays in the Johnsons' presence to advise Bays that he had an offer of $12,000 for the property and asked if Bays would accept. When Bays called back to advise he would accept the offer, the contract was prepared by Sam Perroni, executed by the Johnsons, and delivered to the seller for acceptance on Monday, February 25. Receipt for Johnson's earnest money deposit of $250 was dated February 23, 1974 as was the contract.

   
   

3. When Respondent told Sam Perroni of Johnson's offer he also advised him Johnson had offered him a bonus of $250. Sam Perroni advised Respondent that this bonus offer should be reported to the seller, and that he, Sam Perroni, would take care of it. The executed contract was returned to Perroni on February 26, 1974 by C. V. Watson, an officer in Bays Construction Company. At this time Perroni says he advised Watson of the bonus offer, but Watson recalls no mention of any such deal. Bays was never advised and would not have sold the property for $12,000 if he had known of the bonus offer. Sam Perroni told Respondent that the sellers had been made aware of the bonus offer.

   
   

4. On March 2, 1974, while having dinner at Sam Perroni's, Johnson delivered to Respondent a check (Exhibit 6) for the $250 bonus agreed upon. On the day of the closing when Johnson indicated he was a little short of cash for closing costs, Sam Perroni gave him a check for $60 drawn on Finn Realty.

   Joseph Finn accepted the contract as the broker in this transaction and was never made aware of the bonus. Of the $720 commission on the sale, $360 went to Respondent. He also retained the $250 bonus. Upon advising Sam Perroni of the offer and acceptance Respondent was not further involved in the property or the closing. Sam Perroni assisted the purchaser in securing a $4,000 purchase money mortgage on the property and in correcting the deed to the property. He considers the services performed on behalf of the purchaser merited the bonus.

   
   

5. Some time later Johnson, who thought he had purchased a 10' x 60' trailer learned the trailer was only 55' in length and complained to the Real Estate Commission. During the course of the inquiry on this complaint Johnson "mentioned" the bonus and the charges herein involved resulted.

   
   

   CONCLUSIONS OF LAW

   
   

6. It is axiomatic that in a real estate transaction the salesman is the agent of the seller and, for finding a buyer willing and able to buy at a price acceptable to the seller, the seller will pay the salesman and the broker for whom the salesman works, a commission. Rule 21V-10.3 FAC provides:

   
   

   "Any real estate broker or salesman who receives or makes any arrangement or agree- ment to receive, directly or indirectly,

   any commission, fee, kickback, rebate, bonus, or other remuneration or valuable considera- tion, for the placement of or favor in, any business transaction which forms a part of,

   or is incident to, any transaction or trans- actions negotiated or handled by said broker or salesman as an agent, shall be deemed to be in violation of subsection 475.25(1)(a) or subsection 475.25(1)(c) or both of said subsections of the Florida Statutes, unless prior to the time of the placement of, or favor in, said business transaction, the

   broker or salesman shall fully and completely advise his principal and all affected parties in the transaction, or transactions, which the broker or salesman Is handling, of all facts pertaining to the arrangement or agree- ment for compensation fees, kickback, rebate or other remunerations or valuable consideration. In all such cases proof

   of receipt of such compensation, fee, kickback, rebate, or other remuneration

   or valuable consideration by a real estate broker or salesman will be deemed prime facia evidence of such violation."

   
   

7. It is the duty of the broker, and his salesman, to obtain the most favorable price and terms from the standpoint of his principal, the seller.

Here that duty was breached by the seller when he accepted from the buyer part of the sum the buyer actually offered to pay for the property. This constitutes fraud, concealment, and breach of trust in a business transaction to wit: the sale of real property. The fact that the Respondent was a relatively new registrant and was told by his father, a registrant of some 23 years, that he had advised the principal of the bonus is a factor mitigating the seriousness of Respondent's conduct in this regard. It is therefore,

RECOMMENDED that the registration of John R. Perroni as a real estate broker be suspended for a period of six months.

DONE and ENTERED this 31st day of March, 1976 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Richard J. R. Parkinson, Esquire 2699 Lee Road

Winter Park, Florida 32789

J. Richard Rahter, Esquire

1135 Pasadena Avenue South, Suite 315 St. Petersburg, Florida

Docket for Case No: 76-000010

Orders for Case No: 76-000010