Opinion
January 16, 1951. Rehearing Denied February 12, 1951.
Appeal from the Circuit Court for Pinellas County, Victor O. Wehle, J.
James T. Smith and Justin J. Albaugh, St. Petersburg, for appellant.
W.H. Poe, Orlando, for appellees.
On April 15, 1949, an information consisting of eleven separate counts was filed with the Florida Real Estate Commission against the appellant, Norman Bie. Several of these counts charged the appellant with acting as a real estate broker by advertising real property for sale in a Florida newspaper on different occasions between September 30, 1947 and November 1, 1948. Also, on November 25, 1948, he negotiated the sale of and sold real property owned by Sylvia L. Meares to Nellie H. Cross. The gravamen of the complaint or charges against the appellant is that at the time or dates of running of the advertisements of described real property for sale in the Tampa Morning Tribune, inclusive of the sale of the Meares real property on November 25, 1948, he, the said Norman Bie, was not the holder of a valid current registration certificate as a real estate broker issued to him pursuant to law by the Florida Real Estate Commission.
The answer of the appellant Bie to each of the several counts of the information filed against him before the Florida Real Estate Commission practically admits the facts alleged but contends that the several acts and conduct on his part were not unlawful because he was the holder of Registration Certificate No. 4542 issued to him by the Florida Real Estate Commission and after the dates of the alleged violations the Florida Real Estate Commission issued to him Registration Certificate No. 4590. The answer concedes that appellant's Registration Certificate might have expired on September 30, 1947, but, regardless of the several contentions, the Registration Certificate was in full force and effect and the appellant had the statutory authority as a real estate broker to do and perform the several acts complained of as set out in counts 1 to 11, both inclusive.
The facts are not in dispute, as shown by the record. On final hearing the Florida Real Estate Commission held that the appellant, on the dates and occasions set forth in counts 1 to 11, inclusive, was not the holder of a valid current Registration Certificate as a real estate broker and had not filed a written request with the Real Estate Commission therefor and for these several reasons he was operating as a real estate broker without statutory authority. In March, 1948, appellant paid his fee and on March 31, 1948, broker's Certificate No. 4590 issued to him. The fee was due September 30, 1947. The 1948 fee was paid in February, 1949, and he received Certificate No. 4542. Accordingly, an order was entered by the Florida Real Estate Commission which suspended for a period of thirty days the registration of Norman Bie as a real estate broker. On appeal to the Circuit Court of Pinellas County, Florida, the order of suspension was affirmed. An appeal therefrom has been perfected here.
The controlling question presented by the record is the statutory power of the Florida Real Estate Commission to suspend for thirty days a Registration Certificate of a broker, admittedly tardy in payment of his annual fee for registration. Subsection (6) of Section 475.01, F.S.A., provides that the license year of real estate brokers shall end at midnight on the 30th day of September of each year. The appellant did not pay his 1947-1948 license fee until March, 1948, when the Real Estate Commission issued Broker's Certificate No. 4590 on March 31, 1948. He paid his 1948-1949 license fee in February, 1949, and the Real Estate Commission issued to him Broker's Certificate No. 4542. On April 15th thereafter the information before us was filed with the Florida Real Estate Commission.
Section 475.05, F.S.A., grants the Florida Real Estate Commission the power to enact by-laws and regulations for its own government and rules and regulations in the exercise of its powers not in conflict with the constitution and laws of the United States and the State of Florida, and amend them at its pleasure. Other prerogatives are therein authorized not necessary to recite. The power relied upon to suspend the appellant broker does not rest upon a rule or regulation promulgated under Section 475.05, supra, but on statutory authority hereinafter shown.
Section 475.25, F.S.A., grants to the Florida Real Estate Commission the power to revoke or suspend registration of a registrant for a period of not exceeding two years or until compliance with a lawful order imposed in the final order of suspension upon findings of fact showing that the registrant has been guilty of certain acts and conduct enumerated under Section 475.25 as (1) (a), (b), (c), (d), (e), (f), (g), (h), (2) and (3). Section 475.42, F.S.A., provides penalties for violations thereunder as defined in Subsections (1) (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), ( l), (2), and (3). It is quite true that the cited provisions are broad and intended to regulate the whole field of conduct and activities of those engaged as brokers of real estate in Florida. Doubt exists, as we real the cited provisions, as to the power of the Real Estate Commission to suspend a broker's license who is tardy in the payment of his renewal fees. The appellant contends that the license did not become due and payable until the expiration of six months beginning October 1, 1947. The appellee contends that the renewal license fees are due and payable on October 1st of each year.
Counsel for appellee contends that the Real Estate Commission under Section 475.25, F.S.A., has the power to suspend registration for a period of two years if the registrant has violated any of the provisions of said Section. It is further contended that the appellant violated Subsections (1) (a), (d) and (2) of Section 475.42, which provides that no person shall operate as a real estate broker or salesman without being the holder of a valid current certificate of registration. On December 20, 1949 when the order of suspension was entered the appellant possessed Broker's Certificate No. 4590 issued to him by the Real Estate Commission on March 31, 1948 for the fiscal year 1947-1948; also Broker's Certificate issued to him by the Commission for the fiscal year 1948-1949. It was the appellant's contention that the fee became due and payable six months after September 30 of each year. The appellee contends that the renewal fee becomes due and payable on September 30th of each year. It is our conclusion that the renewal fee becomes due and payable on the 30th day of September of each year.
The acceptance of the renewal fees and the issuance of Broker's Certificates on the part of the appellee to the appellant for the exact period set out in the several counts of the information relied upon for a suspension of the Broker's Certificate constitutes such conduct as now precludes the maintenance of this suit by the appellee. The judgment is reversed with directions to dismiss the information.
TERRELL, THOMAS, HOBSON and ROBERTS, JJ., concur.
SEBRING, C.J., and ADAMS, J., dissent.
I dissent because the opinion runs counter to Chapter 475 F.S.A. and renders unworkable the real estate code.