FLORIDA REAL ESTATE COMMISSION, PETITIONER,
v.
MIKE MCGREGOR ET AL., RESPONDENTS

Fla. | 1972-11-01
No. 41950
BOYD, McCAIN and DEKLE, JJ, concur., CARLTON and ADKINS, JJ, and DREW, J. (Retired), dissent.
268 So. 2d 529 Florida Supreme Court (1972) Caution
Cited by 23 cases

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Synopsis

The Florida Supreme Court reversed the District Court of Appeal's decision that exempted corporate employees from real estate licensing requirements under Florida Statutes Section 475.01(2). The Court held that the plain language of the licensing statute governs and courts cannot judicially create exceptions not found in the statute.


Holding

The Court held that the plain language of Section 475.01(2) requires licensing for any person who takes part in procuring purchasers of real property, with no exception for incidental corporate activities or employees receiving no commission. The District Court improperly judicially created an exception not found in the statutory text.


Headnotes

[1] The plain language of a licensing statute governs its interpretation, and courts should not judicially create exceptions not provided by the legislature.

[2] A person performing acts defined as those of a real estate broker or salesman is subject to licensing requirements, regardless of whether such acts are incidental to a la…

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Key Quotes

“every person who shall take any part in the procuring of purchasers . of the real property ... of another”

The definition of real estate broker or salesman under Section 475.01(2) that applies broadly to all persons procuring purchasers

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Facts & Procedural History

Mid-State Homes, Inc. purchases and services mortgages on real estate and obtains title through foreclosures or deeds in lieu. Two salaried employees,…

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Opinion of the Court
ERVIN, Acting Chief Justice:

*530ERVIN, Acting Chief Justice:

We are petitioned to review by writ of certiorari the decision of the District Court of Appeal, Second District, in the case of Florida Real Estate Commission v. McGregor, 254 So.2d 566.

It appears Mid-State Homes, Inc., Respondent, is engaged in purchasing and servicing mortgages on real estate, primarily homes. It has approximately 3,200 accounts, aggregating $22,000,000 in mortgages receivable and obtains title to real estate through foreclosures or deed in lieu. Joe Bigsby and Sam Bullara, Jr., Respondents, are salaried employees of Mid-State, devoting fifteen per cent of their time getting purchasers for the homes Mid-State has acquired by foreclosure or deed. These two are not officers of Mid-State and do not receive any bonus or commission for getting such purchasers.

Petitioner Florida Real Estate Commission contends Mid-State and Bigsby and Bullara are in violation of Section 475.-01(2), Florida Statutes, F.S.A., since they are not registered with it as real estate brokers or salesmen. This lengthy statute defines real estate brokers or salesmen as “every person who shall take any part in the procuring of purchasers . of the real property ... of another”, excluding, however, attorneys handling closings, preparation of instruments, executors, owners, etc., and “one officer of every corporation engaged in the sale of its own properties who shall be its president unless otherwise provided in its charter or by-laws, if said corporation shall not otherwise be classed as a real estate broker or a salesman.”

Without further explanation of facts or the legal situation in the case, the DCA held:

“We do not think it was intended by the legislature to bring transactions as those conducted by Mid-State, Bigsby and Bul-lara within Chapter 475 Florida Statutes . . . in the absence of any alleged fraud or deceit.” (Citing Brod v. Jernigan, Fla.App.2d, 188 So.2d 575.)

The District Court stressed that the administrative processes of the Commission should be aimed at the dishonest and unscrupulous operator who cheats the public in real estate transactions; and that the absence of bonuses and commissions to Bigsby and Bullara in the incidental operation of Mid-State in disposing its own real estate led to the conclusion there was no violation of the statute.

We accepted jurisdiction because the decision conflicts with, cases holding that the plain language of licensing statutes governs, making improper judicial conclusions that the Legislature did not mean what it said. Florida Real Estate Commission v. Reliable Rental Agency, Inc., Fla.App.3d, 209 So.2d 675; State v. Ramos, Fla., 232 So.2d 381; Van Pelt v. Hilliard, 1918, 75 Fla. 792, 78 So. 693.

We conclude that the decision of the District Court in purporting to construe the intent and meaning of the statute ignores the quoted plain language of the regulation and judicially legislates an exception favoring the two employees of Mid-State Homes, Inc. by permitting them to serve in the role of real estate salesmen for their employer without being licensed. Without legislative approval, such an exception not only does violence to the plain language of the statute relating to the regulation and licensing of real estate brokers and salesmen, but has peripheral effects posing threat by way of a judicially sanctioned precedent of unauthorized practice to other licensed professions. The decision below raises many collateral questions concerning, e. g., whether employees of individuals may engage in similar real estate transactions to those engaged in by the corporate employees in the instant case opening new avenues for evasion and un*531fair competition to licensed real estate brokers and salesmen.

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. Relief in this case, if advisable, should be a matter of legislative, not judicial concern. The Legislature, rather than the courts, has the constitutional latitude to consider after careful hearings the entire subject and resulting effects involved in amending and making exceptions to regulatory statutes.

No better exposition of the meaning and purpose of F.S. Section 475.01(2), F.S.A. is to be found than is expressed by the Second District Court of Appeal itself in the case of Alligood v. Florida Real Estate Commission, 156 So.2d 705. The court there on page 707 said:

“[2] The purpose of this legislation is to protect the public from being subjected to real estate sales programs by persons not licensed by the commission and therefore perhaps not qualified to perform such services. Perhaps, too, persons not licensed by the commission would not be well versed in the high ethical standards of conduct which the profession, with the aid of the Florida Real Estate Commission, is striving to accomplish.
“By virtue of this statute, a person performing particular acts either is, or is not, operating as a real estate broker or salesman and hence subject to the requirement of licensing as such. General statements, or so called ‘definitions’ of real estate brokers or salesmen, or of services generally performed by them have no material degree of control upon the determination of whether or not a person is operating as a broker or salesman. The language of this statute is the controlling and final definition of a real estate broker, or salesman, in this state, (Emphasis added.)
“The legislature has seen fit to provide that one who directs or assists in the procuring of prospects for the purchase of real estate shall be registered, or licensed, as a real estate salesman, or broker.
“[3, 4] The language which is pertinent to this case is admittedly broad, but it is equally clear and unambiguous. No resort need be made to the general rules of judicial interpretation to understand it. It is plain and simple English and it is the duty of the courts to apply the literal meaning of the language. . . . ”

The instant decision completely departs from the foregoing rationally considered language construing the regulatory statute.

No real estate transaction performed by an unlicensed person as defined in the statute can be excused from being considered a violation thereof because it is “incidental” or only a minor part of the business of a corporation. It is the act itself, i. e., the real estate service performed, as pointed out by the case cited just above, and not its degree of effect or its incidental relationship to the corporate business as a whole that determines whether there is a statutory violation. Nor does the fact no bonus or commission is paid to an unlicensed salaried employee by the corporation for his services in handling real estate matters have any bearing. The governing statute provides no “loopholes” for escape for any such reasons.

Our jurisdiction here is not involved with an appellate review of a constitutional construction or a holding on the validity of a statute by the courts below. We have for certiorari review a case of conflict jurisdiction arising from a judicial departure from the plain language of the subject statute by the District Court contrary to pertinent decisions that such language must be followed. Vocelle v. Knight Brothers *532Paper Company, Fla.App.1960, 118 So.2d 664, 667; Beckwith v. Board of Public Instruction of Dade County, Fla., 261 So.2d 504. In Vocelle v. Knight Brothers Paper Company, supra, the District Court of Appeal, First District, said:

“ . . . the court has no power to go outside the statute in search of excuses to give a different meaning to words used in the statute. . . . ”

The decision of the District Court of Appeal, Second District, is quashed with direction that further proceedings below be in accord herewith.

BOYD, McCAIN and DEKLE, JJ, concur.

CARLTON and ADKINS, JJ, and DREW, J. (Retired), dissent.


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Citator

Cited By (11 total)

  • Futch v. Head, 511 So. 2d 314 (Fla. 1st DCA 1987)
    …ction 475.-42(l)(d)....” A court is governed by a statute’s plain language and as such is powerless to go outside the statute in search for excuses to give a different meaning to words used in the statute. Florida Real Estate Commission v. McGregor, 268 So. 2d 529, 530 (Fla.1972). We therefore affirm the trial court’s conclusion that section 475.42(1)(d), Florida Statutes did not bar Head’s claim for recovery. AFFIRMED in part, REVERSED in part. MILLS and JOANOS, JJ., concur. . One of the reasons we part c…
  • Avery Jones v. State, 589 So. 2d 1001 (Fla. 3d DCA 1991)
    …64 Cal.2d 504, 413 P. 2d 665, 50 Cal.Rptr. 777 (1966), would require a degree of expertise which we do not possess, and, more important, an act of judicial statutory amendment in which we may not indulge. See Florida Real Estate Comm’n v. McGregor, 268 So. 2d 529, 531 (Fla.1972). It is true that the ordinary presumption that one has knowledge of drugs found in his possession, State v. Medlin, 273 So. 2d 394 (Fla.1973), may not apply when there are only trace amounts of drug “lint” or “dust” which, we are to…
  • Fla. Real Est. Comm'n v. McGREGOR, 336 So. 2d 1156 (Fla. 1976)
    …So. 2d 566. This Court, reviewing the case on certiorari, held that the Statute did [*1158] pertain to Mid-State’s mortgage representatives and quashed the decision of the District Court of Appeal, directing further proceedings in the Circuit Court. 268 So. 2d 529. Upon remand the Circuit Court held a final hearing on the constitutional issue. Finding that Mid-State had been unable to hire licensed brokers to sell its property because of the peculiar job requirements involved, that court concluded that the st…
    1 / 3

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