vs. ) CASE NO. 81-560
Respondent. )
Pursuant to notice an administrative hearing was held before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on June 25, 1981.
For Petitioners: W. Kirk Brown, Esquire
This cause came on to be heard upon the Petitioner's request for hearing for a determination of the validity of the Board of Real Estate's denial of its application to be dually registered as a real estate broker/salesman with Key Realty, Inc., and as a real estate broker with Key Realty Management, Inc. The Respondent took the position that a licensee cannot be the holder of a broker and a broker/salesman's license simultaneously and consequently denied the Petitioner's application. The Respondent is relying upon its interpretation of Section 475.01(3), Florida Statutes, Section 475.01(4) and (5), Florida Statutes, as well as Section 475.42(1)(b) and (c) and Rule 2IV-6.06, Florida Administrative Code. The Petitioner adduced testimony from two witnesses at the hearing, as well as presenting legal argument. The Respondent presented no witnesses, but relied on its legal argument. There is no significant dispute of material fact herein, however, the parties agreed to proceed with the cause on a formal basis pursuant to Section 120.57(1), Florida Statutes. The parties requested the benefit of a transcript of the proceedings which was filed July 21, 1981, and also availed themselves of the right to submit Memoranda of Law subsequent to the hearing.
Dan Lee Isaacs is a real estate broker/salesman with the Petitioner, Key Realty, Inc. He seeks in this proceeding to have approved his dual licensure as a broker for Key Realty Management, Inc., as well as to retain his broker/salesman licensure with the Petitioner, Key Realty Inc. In his capacity as a broker/salesman for Key Realty Inc., he works under the supervision of Mr. Les Epperson, who is the licensed broker for that entity. Mr. Isaacs owns no stock in the corporation, Key Realty Inc. He does own stock and would be sole manager of the separate corporation known as Key Realty Management, Inc. Key Realty Management, Inc., is not affiliated in a subsidiary or other relationship with Key Realty, Inc., although there is some commonalty of ownership in that Les Epperson is a minority shareholder. The President and majority stockholder of Key Realty, Inc., Les Epperson, would have no part in the management of the operations of Key Realty Management, Inc.
Mr. Isaacs desires, for personal and financial reasons, to remain active in the real estate sales field as a broker/salesman under the supervision of broker Epperson. He would, as sole manager and broker with Key Realty Management, Inc., engage in no sales activities, but rather solely in the management and supervision of various rental properties for clients of that firm. The two corporations maintain and would maintain separate accounting books and records; and, as pertinent, separate escrow and trust funds and accounts. It is to the advantage of both firms, both financially and in terms of legal liability, to maintain these escrow funds and accounts separately because of the financial and operational differences characteristic of a real estate management firm, as compared to a purely real estate sales operation as conducted by Key Realty, Inc. The Petitioner has complied with all requirements for qualification as a real estate broker pursuant to Chapter 475, Florida Statutes, and the rules promulgated thereunder.
In October, 1980, the Petitioner applied for the above described dual licensure. The Respondent denied the application on the basis that an individual cannot be a broker and a broker/ salesman simultaneously. The principals of both corporations, Mr. Epperson and Mr. Isaacs, have submitted the affidavits and agreements pursuant to Rule 2IV-6.06, Florida Administrative Code, attesting to the absence of any conflict of interest stemming from Mr. Isaacs' licensure as a broker of the separate corporation and that both of them agree and consent to the dual registration.
There is no dispute between the parties that in essence a "salesman" and a "broker/salesman" perform some of the same real estate transaction functions under the supervision of a licensed broker, for instance, the depositing with the broker of any escrow or other funds involved in a given real estate transaction for appropriate disposition and disbursement by the broker and acting in all other pertinent operative capacities under the supervision of a broker, rather than independently. The parties also did not dispute that the real basis for the "broker/salesman" designation in the licensing scheme in Florida is to allow a licensee to demonstrate to the public that a broker/salesman is clothed with additional internship, educational and experience credentials and is thus possessed of a greater degree of expertise in real estate transactions and operations than one licensed as a salesman. The Respondent however, in its argument during and subsequent to the hearing, apparently takes the position that a "broker/salesman" and a salesman perform identical functions; and, therefore, are legally to be considered as the same type of license and licensee, for purposes of establishing its legal position that since a salesman's license may not be issued to a person registered as an
active broker unless the active broker's license is surrendered that neither may a person be dually licensed as both a "broker/salesman" and a broker.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 475.01(3), Florida Statutes, defines a real estate broker as follows:
"Broker" means a person who, for
another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraises, auctions, sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale . . . of any real prop- erty . . . or who advertises or holds out to the public by any oral or printed solicitation or representation that he
is engaged in the business of appraising, auctioning, buying, selling . . . or who takes any part in the procuring of sellers, purchasers, lessors, or lessees . . . or who directs or assists in the procuring
of prospects or in the negotiation or closing of any transaction which does, or
is calculated to, result in a sale, exchange, or leasing thereof, and who receives, expects, or is promised any compensation
or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information
or lists. . . .
Section 475.01(5), Florida Statutes, defines broker/salesman as a person who is registered as a broker, but who performs the duties of a salesman for another person, and who is designated as a broker-salesman in the registration list of the board."
Section 475.01(4), Florida Statutes, defines salesman to be a person who performs any act described in the definition of "broker," but who performs such real estate operations or acts under the direction, control or supervision of another person.
Section 475.42(1)(b) provides that no person licensed as a salesman shall operate as a broker, nor shall he operate as a salesman for any person not registered with the board as his employer. Subsection (c) of that section provides that no broker will employ or continue in employment any unlicensed salesman, but that a salesman's license may be issued to a person who is registered as a broker if the broker's license is surrendered.
Rule 2IV-6.06, Florida Administrative Code, in treating the employment of a realtor by more than one business entity states as follows:
A salesman or broker-salesman may
not be employed by more than one broker, or by a broker and an employing owner.
Ordinarily a salesman or broker-salesman may not be employed by more than one owner, which may be an individual part- nership or corporation. However, one or more corporations, or one or more corpo- rations and an individual, or individuals, may produce proof that various properties are held in the name of various indi- viduals and corporations, but all such owners are so connected, subsidiary, interlocking or affiliated, so that such ownership, for practical purposes, is substantially in the same individuals, or the control thereof is in one individual, or the same individuals, in which case a salesman or broker-salesman may have a group license, but each individual, partner, or corporate owner, by proper officers, shall sign the certificate attached to the request for license. . . .
The Respondent's position essentially is that the real estate licensing law, specifically Section 475.42(1)(b)(c) prohibits the Petitioner from holding a license as a broker and a broker/salesman at the same time. The Respondent contends, for purposes of applying this section to the facts at bar, that "broker/salesman" and "salesman" are essentially synonymous for purposes of this proceeding, citing the above definitions. The Respondent has conceded that a broker and broker/salesman have different educational and experience requirements and must pass a more difficult examination vis a vis a salesman; and each may represent himself to be an expert in the field. Nevertheless, it contends that both the broker/salesman and the salesman can equally perform the same basic real estate functions; and, therefore, are the same for purposes of the above provision prohibiting dual licensing. The Respondent avers that Section 475.01(4), Florida Statutes, allows a salesman to do anything a broker can do in real estate operations if under the "direction, control or management of another person." According to the Respondent "another person" is the broker or owner/developer. The Respondent then refers to the definition of "broker/salesman" as one who is registered as a broker but "who performs the duties of a salesman for another person . . . ." Respondent thus argues that since the Petitioner is, in its view, practically licensed as a salesman that he cannot be licensed as a broker at the same time. The Respondent also apparently takes the position that, pursuant to the language in the above Rule to the effect that a salesman or broker/salesman may not be employed by more than one owner, then the proposed dual licensure is illegal because of the Petitioner's apparent dual employment.
The Petitioner, of course, contends that broker/salesman is a distinctly different licensure category from that of salesman and that there is no prohibition in the above statutory authority, nor in the rule, to prevent one licensed as a broker/salesman from being licensed with another firm. Further, the Petitioner asserts that, to the extent that it might be considered to be
dually employed by the two corporations, that affidavits of consent attesting to a lack of conflict of interest have been properly executed by the principals of both firms, as a precaution pursuant to the above rule. Thus, if the Petitioner wanted to be licensed as a broker/salesman employee with both firms, he could under this rule be allowed to do so provided he is properly supervised, since the necessary consent affidavits have been executed. However, in part because the above rule ordinarily precludes a broker/salesman being employed by more than one owner, and we have two independent corporate owners in this situation (the Petitioner is not seeking a "group license"), and more particularly because as sole manager and operating officer of the real estate management firm, the above authority would require a licensed broker to be in charge of management; the Petitioner is seeking a broker's license for his position with Key Realty Management, Inc. There is no dispute that he has passed and complied with all legal requirements for a broker's license.
The Respondent's interpretation that the broker/salesman and salesman licensure classifications are essentially synonymous; and, therefore, that the above statutory prohibitions against the proposed dual licensure apply, is misplaced. Section 475.01(5) Florida Statutes, states that a broker/salesman is a person who is registered as a broker, but "who performs the duties of a salesman for another person . . . (emphasis supplied). Although it is true that a broker/salesman and a salesman can equally perform the same basic real estate functions, the broker/salesman, by virtue of being a registered broker (who merely works under the supervision of an active broker) is also clothed with additional expertise in terms of educational attainments and experience in the real estate field and thus can quite legitimately hold himself out to have greater capabilities of advising and counseling the real estate dealing public with whom he transacts business in a way that a salesman is precluded from doing. There are quite legitimate business reasons for a broker/salesman to be registered as a broker, as the above section describes him, and to be able to represent to the public that he has a greater expertise. The legislature must be presumed to have recognized the fact that individuals in the industry clothed with greater educational attainments and expertise than mere salesmen should be rewarded with a separate, higher classification in order to be able to advertise such and represent to the public those additional qualifications in a way advantageous to their businesses. No competent, substantial evidence or legal argument has been adduced to establish that "broker/salesman" and "salesman" were intended to be synonymous terms and licensure classifications. The familiar doctrine of statutory construction, "expressio unius est exclusio alterius" applies; and, since the legislature, in enacting the prohibition of dual licensure by salesmen, did not expressly enumerate broker/salesmen and brokers, then it could not have intended to include them in the prohibited classification. It is even more persuasive to note that the legislature provided for a separate category for broker/salesmen in the licensing law at least as far back as the 1955 amendments. The present "salesman/broker" dual licensing prohibition in Section 475.42 was not enacted until 1963. Thus, if the legislature had intended that the prohibition apply to broker/salesmen, it would have expressed that intent in the 1963 or later amendments, which it failed to do. "The plain language of licensing statutes governs, making improper judicial conclusions that the legislature did not mean what it said. .
. . Courts are supposed to exercise restraint and not be concerned with the wisdom or policy of statutory regulations--at least not to the point of rewriting a statute to eliminate language with which the Court disagrees." See Florida Real Estate Commission v. McGregor, 268 So. 2d 529 (Fla. 1972), and cases cited therein. See Thayer v. State, 335 So. 2d 815 (Fla. 1976), also.
It matters not that a broker/salesman and salesman perform the same basic real estate functions, since even an active broker supervising an office with multiple broker/salesmen and salesmen in his employ can also perform those same basic real estate functions involved in showing property, attending closings and other such duties. Both the broker, however, and the broker/salesman registered as a broker, as the legislature has recognized, have the additional expertise and responsibilities which differentiate them from the mere salesmen and no language in the above authority upon which the Respondent relies precludes any dual licensure by one licensed other than as a salesman. Although the Respondent remonstrates that the policy of the Board has been to prohibit such an arrangement, no evidence whatever was adduced to establish what the policy actually is on this subject. Even if one surmises that the policy of the Board is to preclude dual licensure to prevent misleading the public and unfair dealing between licensees, the peculiar facts of this case, as well as the disclosures made, obviate any such taint. Thus, the Petitioner has demonstrated that there is no restriction in the law to preclude a broker/salesman with one firm from holding a broker's license with another firm.
Further, although the above-cited rule precludes, in the ordinary case, a broker/salesman being employed by more than one owner, Mr. Isaacs, in this case employed by Key Realty Inc., does not seek employment with another broker as a broker/salesman, rather, he would be the sole broker/ manager of Key Realty Management, Inc. Therefore, there is no dual employment relationship as a broker/salesman with two separate real estate firms which would bring into play the prohibition against dual employment/licensure embodied in Rule 2IV-6.06, Florida Administrative Code. Even if such a dual employment relationship as a broker/salesman could be inferred, the principals of both firms have executed the required consents described above. Thus, the undersigned concludes that competent, substantial evidence has been adduced which establishes that there is no impediment in the law to the dual licensure of the Petitioner, Dan Isaacs, as a broker with Key Realty Management, Inc., and as a broker/salesman with Key Realty, Inc.
In consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence in the record and the pleadings and arguments of counsel, it is; therefore,
RECOMMENDED that a Final Order be entered granting Dan Lee Isaacs a license as an active real estate broker for, and on behalf of, Key Realty Management, Inc., and allowing his retention of licensure as a broker/salesman with Key Realty, Inc.
RECOMMENDED this 15th day of September, 1981, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1981.
W. Kirk Brown, Esquire Post Office Box 4075 Tallahassee, Florida 32303
