Lee v. Delmar

• Decision Date: 03 July 1953
• Citation: 66 So.2d 252
• Parties: LEE et al. v. DELMAR.
• Court: Florida Supreme Court

Page 252

66 So.2d 252

LEE et al. v. DELMAR.

Supreme Court of Florida, Special Division A.

July 3, 1953.

W. H. Poe, Orlando, for appellants.

T. P. Warlow, Jr., Orlando, C. B. Myers and Woolfolk & Myers, Lake Wales, for appellee.

MATHEWS, Justice.

This suit involved the legality of a resolution adopted by the Florida Real Estate Commission. The lower court in a final decree held that the resolution in question was illegal and violated the Constitution of the State of Florida. This appeal if prosecuted from that final decree.

The pertinent sections of the law, Chapter 475, F.S., F.S.A., vesting power in the appellants are as follows:

'475.01 Definition of terms used in chapter

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'(5) A 'registrant' is a person whose name and business address, and in case of a salesman, the name and business address of the employer also, has been placed, and lawfully remains, on said registration list, and said term shall not include any person who has not applied for a renewal certificate within the aforesaid period of six months.

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'(10) The word 'certificate' or 'registration certificate' shall be deemed to mean a written instrument, prepared according to the regulations and bearing the seal of the commission, which shall be issued to every broker or salesman as soon as registration is granted, and renewed annually thereafter as long as renewals thereof shall be granted, and which shall be prima facie evidence that the holder is a registrant, and that the registration fee for the license year expiring next after the date of issuance which shall be indorsed thereon, has been paid. Such certificate, except nonactive certificate, shall authorize the holder to act as a broker or salesman until the date of expiration, or until the registration is revoked or suspended.

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'475.04 Duty of commission to enforce this chapter, keep records and educate members of profession

'The commission may examine witnesses and administer oaths, and shall investigate persons doing a real estate business in this state to ascertain if they are violating any of the provisions of this chapter, and keep such records and minutes as shall be necessary to an orderly dispatch of business. The commission shall foster the education of real estate brokers and salesmen concerning the ethical, legal and business principles which should govern their conduct.

'475.05 Power of commission to enact by-laws, rules and regulations and decide questions of practice

'The commission may 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 or of this state and amend the same at its pleasure. The commission may decide questions of practice arising in the trial of information, having regard to this chapter and the rules and regulations then in force. Printed copies of rules and regulations, or written copies under the seal of the commission, shall be prima facie evidence of their existence and substance, and the courts shall judicially notice such rules and regulations.'

The resolution adopted by the appellant Commission, among other things, contained the following:

'Section 2. Definition.--For the pruposes of these rules and regulations, a part time salesman is one who engages in some other occupation, business, employment or vocation than that of a real estate salesman, or one not engaged in any other occupation, business, employment or vocation, but who is usually found at his home, or in places other than the offices of his broker, when not engaged in carrying out the business of said office. Except, however, the definition shall not apply to any registered salesman who has surrendered his certificate but has not, at the time, procured its reissuance to another employer, or who is presently ill or unable to work, or on a regular vacation.

'Section 3. Violation by Broker.--It shall be deemed a violation of these rules and regulations for any registered real estate broker to employ, or retain in employment, any part time salesman, as herein defined.

'Section 4. Violation by Salesman.--It shall be deemed a violation of these rules and regulations for any registered real estate salesman to operate as a part time salesman, as herein defined.

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'Section 7. Where Applicable.--These rules and regulations shall be applicable only to counties having a population of $70,000 or more, according to the latest Federal census. The said limitations of population may, from time to time, be lowered or raised as the commission shall find to be warranted by the facts and necessities.'

It appears from the pleadings that the appellee had been a registered real estate salesman in Polk County for over six years. Polk County has a population of over 70,000. Appellee had also been a photographer...