STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3690

) JOHN A. SIRIANNI and SIRIANNI ) INVESTMENTS, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Final hearing in this proceeding was conducted in Orlando, Florida, on October 5, 1988, by Mary Clark, Hearing Officer.

The parties were represented as follows:

For Petitioner: Steven W. Johnson, Esquire

DPR, Division of Real Estate Post Office Box 1900

400 West Robinson Street Orlando, Florida 32801

For Respondents: John A. Sirianni

1740 Carlton Street

Longwood, Florida 32779 BACKGROUND AND PROCEDURAL MATTERS

An administrative complaint filed on August 4, 1987, alleges that Respondents violated certain provisions of Chapter 475, Florida Statutes and Rule 21V-10.022, Florida Administrative Code, by failing to disclose that a

$1,000.00 sales contract deposit was not cash and was not deposited in escrow, and by failing to maintain a brokerage office at the address registered with the Petitioner.

John Sirianni responded to the complaint with a timely request for formal hearing.

At the hearing, Petitioner presented the testimony of two witnesses and three exhibits. Respondent testified in his own behalf.

After the hearing, Petitioner submitted a proposed recommended order.

Proposed findings of fact #1-3 are adopted herein. Proposed findings of fact #4-10 are rejected as contrary to the weight of evidence.

ISSUES

The issues for determination are whether Respondents violated subsections 475.25(1)(b), Florida Statutes by neglecting to inform the agent of a seller that a deposit was not cash; and whether Respondents violated subsection 475.25(1)(e), Florida Statutes, Section 475.22, Florida Statutes and Rule 21V- 10.022, by failing to maintain an office while licensed as an active broker

FINDINGS OF FACT

1. At all times pertinent to the charges, John A. Sirianni was a licensed real estate broker in the State of Florida, having been issued license number 0132568 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, c/o Sirianni Investments, Inc., with a home address of

   300 Valley Drive, Longwood, Florida, 32779.

   
   

2. Respondent, Sirianni Investments, Inc. was at all times pertinent to the charges a corporation registered as a real estate broker in the State of Florida, having been issued license number 0207206 in accordance with Chapter 475, Florida Statutes. For some undetermined period the corporation license was inactive. At various times, the addresses for the corporation on file at the Division of Real Estate were: 213 West Park Avenue, Winter Park, Florida; 301 Montgomery Road, Suite 301, Altamonte Springs, Florida; and most recently, 147

   W. Lyman Avenue, Winter Park, Florida.

   
   

3. At all times pertinent to the charges, Respondent John A. Sirianni was licensed and operating as qualifying broker and officer for Respondent Sirianni Investments, Inc.

   
   

4. In October, 1986, Ruth Pelegatto, a real estate broker salesman employed by W. W. and Company, had a listing to sell a parcel owned by Xebec, Inc. and located in Apopka, Florida.

   
   

5. On October 12, 1986, Respondents submitted to Ruth Pelegatto a written offer to buy from U.S. EquiGrowth Corporation. The offer, reflected on a form contract for sale and purchase, stated a purchase price of $100,000.00; a

   $1,000.00 deposit to be held in escrow by Sirianni Investments, Inc. "on acceptance"; a $75,000.00 purchase money mortgage; and $24,000.00 balance to close. The offer also included a contingency clause, giving the buyer 60 days from final acceptance to determine the feasibility of developing the site. If the buyer claimed the site conditions were unacceptable, the contract would be null and void. (Petitioner's Exhibit #2) The time for acceptance was October 15, 1986, reflected in paragraph III of the contract.

   
   

6. The seller signed the contract on September 22, 1986, after making several changes in its terms. The purchase money mortgage figure was struck through and initialled and the balance to close was changed from $24,000.00 to

   $99,000.00, and was initialled. The seller, according to Ms. Pelegatto, did not want to "hold any paper."

   
   

7. By the time the contract came back, Sirianni had learned that the property was not appropriate for the development. He claims that Ms. Pelegatto knew that, as he had spoken with her prior to her trying to reach him about the counteroffer. Ms. Pelegatto claims that the refusal of the counteroffer was never communicated to her. She does not claim that acceptance was made, and no evidence of such is apparent on the face of the two copies of the contract in

   the record, one photocopy and one carbon copy. There are initials by the changes, and a date, 9/24/8- (the second digit does not appear on either copy). The initials and date were not explained.

   
   

8. The sale to EquiGrowth was not made. Ms. Pelegatto tried unsuccessfully to reach Sirianni on several occasions. He felt she was trying to salvage the deal and did not respond.

   
   

9. Sometime in April, 1987, Xebec asked Ruth Pelegatto for the $1,000.00 deposit. She was still unable to reach Sirianni. The deposit, either a check or promissory note according to Sirianni, had previously been returned by him to the prospective buyer.

   
   

10. John Sirianni admitted at the hearing and to DPR investigator, Chris Olsen, that the deposit was never placed in trust as the contract was never accepted. Chris Olsen interviewed Sirianni on June 22, 1987, when Sirianni voluntarily responded to his call and came in to the agency office. Sirianni told him he had closed his brokerage office and was working out of his home. The office closed approximately 30 days before Sirianni talked with Olsen.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes and Section 455.225(4), Florida Statutes.

    
    

12. The relevant provisions of Chapter 475, Florida Statutes and Rule 21V- 10.22, Florida Administrative Code are:

    
    

    "475.22 Broker to maintain office and sign at entrance of office. - Each active broker shall maintain an office, which shall consist of at least one enclosed room in a building of stationary construction. Each active broker shall maintain a sign on or about the entrance of his principal office and each branch office, which sign may be easily observed

    and read by any person about to enter such office and shall be of such form and minimum dimensions as shall be prescribed by the commission.

    
    

    475.25 Discipline. -

    (1) The commission may deny an application for licensure, registration, or permit, or renewal thereof; may suspend a license or permit for a period not exceeding 10 years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:

    (b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing

    by trick, scheme, or device, culpable negli- gence, or breach of trust in any business transaction in this state or any other state, nation, or territory; ...

    
    

    (e) Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

    
    

    21V-10.022 Office. Each active broker is required to have an office and the office must be registered with the Department. The office shall consist of at least one enclosed room or building or stationary construction wherein negotiations and closings of real estate transactions of others may be conducted and carried on with privacy and wherein the said broker's books, records, and files pertaining to real estate transactions of others are maintained. The office may be in the residence of the broker if not contrary to local zoning ordinances provided the minimum office requirements are met and the required brokers find its [sic] properly displayed. Salesmen

    are not required or permitted to have an office, but must be registered from, and work out of an office maintained and registered in the name of the employer."

    
    

13. In order to warrant discipline of a professional license the evidence of violations must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The evidence in this proceeding failed to meet that standard. Petitioner did not establish that the counter offer by the seller was ever accepted by the buyer. The seller plainly did not accept the buyer's offer and the deposit requirement "upon acceptance" was never activated. Petitioner did not establish that Respondent was guilty of fraud, misrepresentation, concealment, or the like, in his dealings with Ms. Pelegatto.

    
    

14. Although Respondent freely admitted that he had moved his office into his home just prior to the investigation by Chris Olsen, the whereabouts of his office during the transactions in question was not proven. Moreover, Rule 21V- 10.022, Florida Administrative Code, above, specifically permits, under certain conditions, the use of a home office. Petitioner never suggested that those conditions were not met and the only contacts by Mr. Olsen were by telephone and at the agency office. The certified copy of Respondent's license file received as Petitioner's Exhibit #1, list a home address for John Sirianni and several different addresses for the corporation. The corporation was inactive for some undetermined period, and the license file, without further explanation or corroboration, is insufficient evidence of a violation of Section 475.22, Florida Statutes or Rule 21V-10.022, Florida Administrative Code, regarding the maintenance of an office by an active broker.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

that the administrative complaint against both Respondents be dismissed.

Respectfully submitted and entered this 9th day of November, 1988, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988.

COPIES FURNISHED:

Steven W. Johnson, Esquire Darlene F. Keller DPR, Division of Real Estate Executive Director

Post Office Box 1900 DPR, Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 400 West Robinson Street

Orlando, Florida 32801

John A. Sirianni

1740 Carlton Street Bruce D. Lamb, Esquire Longwood, Florida 32779 Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-003690

Orders for Case No: 87-003690