STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

an agency of the State of Florida )

)

Plaintiff, )

)

vs. ) CASE NO. 77-035

) PROGRESS DOCKET NO. 3124

MALCOLM V. HOLDRIDGE, )

)

Defendant. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in the above styled cause in the Collier County Courthouse Complex, Building F, Airport Road and U.S. 41, East Naples, Florida, at 8:30 A.M. on March 24, 1977, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter came on to be heard upon the application for a formal hearing on the matter of his reinstatement by Malcolm V. Holdridge to the Florida Real Estate Commission. Holdridge was requesting that the Florida Real Estate Commission reinstate him as a registered broker on the basis that his resignation in 1967 had been coerced by threats of revocation based upon a statutory provision which was subsequently declared to be unconstitutional.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

2699 Lee Road

Winter Park, Florida 32789

For Respondent: Michael E. Crane, Esquire

521 Landmark Building Naples, Florida 33940

FINDINGS OF FACT

1. Prior to the commencement of hearing, the parties entered into a stipulation of fact, a copy of which is attached and constitutes the findings of fact in this hearing.

   
   

   CONCLUSIONS OF LAW

   
   

2. There are two legal issues raised in this case. The first of these is whether the Florida Real Estate Commission has already made a final decision in this matter, and therefore, Holdridge should seek judicial review of that decision. The second issue is whether the ruling of the Florida Supreme Court in Hall v. King, 266 So.2d 33, should be applied to Holdridge. This last issue has two elements: (1) Is the decision in Hall, supra, limited to those registrants whose registrations were revoked or may it also be applied to registrants who resign under threat of revocation pursuant to the statutory provisions subsequently determined to be unconstitutional; and (2) Does the decision in Hall, supra, have retroactive effect and therefore is it applicable to resignations or revocations which occurred prior to the Supreme Court's decision?

   
   

3. A review of the correspondence between the Florida Real Estate Commission and Holdridge indicates Holdridge had sought reinstatement on the basis of the decision in Hall, supra. The Commission staff advised Holdridge that the decision was not applicable to his case because it was not retroactive. No decision of the Commission was ever made prior to December 5, 1976. By letter of that date, the Executive Director advised Holdridge's attorney that they had denied his petition. A petition was then filed for a formal hearing on the matter. The case was forwarded to the Division of Administrative Hearing to conduct the hearing. After Holdridge filed his formal petition, the Florida Real Estate Commission complied with the strict requirements of Chapter 120, Florida Statutes, in forwarding this matter to the Division of Administrative Hearings for formal hearing. It is presumed that the Florida Real Estate Commission conforms to the requirements of law in carrying on its business. The inconsistency of the Commission's failure to follow the rules and statutes, if their letters are deemed a decision, with the Commission's compliance with the provisions of Chapter 120, Florida Statutes, after filing of the formal petition leads to the conclusion that a formal decision was not reached. Careful reading of the correspondence between the Commission and Holdridge indicates that a hearing, informal or formal, was not held prior to a decision being reached. The correspondence dwells primarily on the applicability of the Hall decision to Holdridge's circumstances. The basis thrust of these letters leads to the conclusion that the Florida Real Estate Commission precipitated initiation of the formal process by Holdridge by indicating to him its leanings in consideration of his request for reinstatement.

   Holdridge did request a formal hearing, and the matter was then referred in strict compliance with the statutes to the Division of Administrative Hearings by the Florida Real Estate Commission.

   The Florida Real Estate Commission's action forwarding the case to the Division of Administrative Hearings is consistent with the foregoing interpretation of the development of this case.

   Therefore, regarding the first legal issue, the Florida Real Estate Commission did not issue a final order in this case.

   
   

4. The facts clearly indicate that there was one and only one reason that Holdridge resigned: the threatened action by the Florida Real Estate Commission to revoke his registration as a real estate broker pursuant to the provision of Section 475.25(2), Florida Statutes, a portion of which was subsequently held to be unconstitutional in Hall v. King, supra. It was stipulated by the parties that, had Holdridge not resigned, action against him would have been taken to revoke his registration solely on the basis of his out of state residency. Based on the foregoing, the facts indicate that Holdridge's resignation was not freely obtained but was coerced by threats of revocation pursuant to a statutory provision subsequently determined to be unconstitutional. This coercion is the same whether one resigns or one's resignation is revoked. Therefore, the decision of the Florida Supreme Court in Hall v. King, supra, should be applicable to the factual circumstances presented in the instant case.

   
   

5. The general rule of law concerning the effects of a Court's determination that a statutory provision is unconstitutional, is that the statute is considered to be a nullity from its enactment. When a statute has been declared constitutional and is subsequently held to be unconstitutional, generally, the provision is considered to be constitutional until the Court's later decision. However, in Hall, supra, the Court's stated reason for reversing its earlier decision was the intervening enactment of the statute providing for out of state service of process (long arm statute). The long arm statute was passed in 1959; See Laws of Florida, Chapter 59-382, Section 1. Therefore, it was the intervening passage of one statute which caused another statute, which had been earlier determined to be constitutional, to be declared to be unconstitutional. Applying the theories enunciated in the two rules discussed above, the residency provision was unconstitutional from the effective date of the long arm statute, which preceded the events involved in this case by nearly ten (1O) years. The decision of the Florida Supreme Court in Hall v. King, supra, should be applied to the instant case.

6. The action of the Florida Real Estate Commission enforcing Holdridge's resignation was a nullity. Therefore, the action of the Commission is not, per se, a reinstatement. Instead it is a ministerial action to cause Holdridge's name to be added to the list of active brokers and his registration papers to be issued. Such ministerial actions could be mandated by a Court of competent jurisdiction because there is no deception involved once the law is correctly applied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission take action to cause Holdridge's name to be placed on the list of active brokers and to have current registration papers issued.

DONE and ORDERED this 2nd day of May, 1977, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1977.

COPIES FURNISHED:

Frederick H. Wilsen, Esquire 2699 Lee Road

Winter Park, Florida 32789

Michael E. Crane, Esquire

521 Landmark Building Naples, Florida 33940

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION,

An Agency of the State of Florida,

Plaintiff,

PROGRESS DOCKET NO. 3124

vs. COLLIER COUNTY

DOAH Case No. 77-035

MALCOLM V. HOLDRIDGE,

Defendant.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Winter Park, Florida, on June 23, 1977,

PRESENT: John R. Wood, Chairman

Maggie S. Lassetter, Vice Chairman Levie D. Smith, Jr., Vice Chairman

APPEARANCES: Frederick H. Wilsen, Esquire

Attorney for Plaintiff Michael E. Crane, Esquire, Attorney for Defendant

This matter came on for Final Order upon the Hearing Officer's Recommended Order, the Plaintiff's Exceptions thereto, and upon consideration thereof, together with a review of the complete record and oral argument of both attorneys, and the Commission being fully advised in the premises finds:

The according to the records of the Commission, defendant is currently the holder of a registration certificate as a real estate salesman.

The Plaintiff's Exceptions to the Hearing Officer's Recommended Order pertaining to defendant Holdridge failing the four examinations are not well taken, and should be denied, but the Plaintiff's remaining Exceptions are well taken and should be accepted.

IT IS THEREUPON ORDERED that:

1. The Plaintiff's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby, accepted in part and rejected in part as above;

   
   

2. The Hearing Officer's Findings of Fact are hereby adopted by the Commission;

   
   

3. The Hearing Officer's Conclusions of Law are hereby rejected by the Commission; and

   
   

4. The Hearing Officer's Recommended Order to reinstate the defendant's registration as a real estate broker be, and the same is hereby, rejected.

IT IS THEREUPON ORDERED that the defendant's Petition for Reinstatement as a real estate broker be, and the same is hereby, denied.

DONE and ORDERED at Winter Park, Florida, this 24th day of June, 1977.

John R. Hood Chairman

Maggie S. Lassetter Vice Chairman

Pierce D. Smith, Jr. Member

I CERTIFY that a copy of the Final Order was mailed to Michael E. Crane, Esquire, 521 Landmark Building, Naples, Florida 33490, by United States registered mail this 24th day of June, 1977.

C. B. Stafford Executive Director

NOTICE TO DEFENDANT:

This Final Order shall become effective on the 25th day of July, 1977. However, you have a right of review by an Appellate Court if you desire.

Docket for Case No: 77-000035

Orders for Case No: 77-000035