CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1992 WL 859
...A formal hearing was held on June 27, 1990. At the commencement of the hearing, appellant's "Motion to Dismiss/Quash" was argued and denied. Also at the commencement of the hearing, appellant's counsel stated that appellant was relying on an "exemption" contained in Section 475.011(5), Florida Statutes, as well as upon the argument that the acts which were the basis for the complaint were governed by Part VIII of Chapter 468 and, therefore, could not be prosecuted as violations of Chapter 475. Prior to October 1, 1988, Section 475.011(5), Florida Statutes, had read: This chapter does not apply to: ......
...t if such manager is acting on behalf of a tenant owning or having an interest in no more than one unit within the condominium or cooperative apartment and if rentals arranged by him are for periods no greater than 1 year. Effective October 1, 1988, Section 475.011(5) was amended to read: This chapter does not apply to: ......
...to the renting of individual units within such condominium or cooperative apartment complex if rentals arranged by him are for periods no greater than 1 year. Ch. 88-20, § 2, Laws of Fla. (emphasis added). Concluding that, prior to October 1, 1988, Section 475.011(5) "arguably" provided an "exemption" for appellant, the hearing officer ruled that the Department would be limited, in attempting to prove the allegations contained in its complaint, to events which occurred after October 1, 1988....
...includes in the definition of "Broker" one who rents, or advertises for rental, real property; and that appellant "advertised apartments for rent, rented apartments, and collected rents." The hearing officer then discusses the exemption set forth in Section 475.011(5), as it applies to activities after the effective date of the 1988 amendment; and appellant's argument that his actions were governed by Part VIII of Chapter 468, rather than by Chapter 475. However, the hearing officer did not reach any conclusion as to whether or not Section 475.011(5) applied to exempt appellant's activities from Chapter 475 after the 1988 amendment; or whether or not Part VIII of Chapter 468, rather than Chapter 475, applied to appellant's activities. Instead, he concluded *1140 that appellant's activities were exempt from Chapter 475 by virtue of Section 475.011(2), which reads: This chapter does not apply to: ......
...n strictly on a transactional basis is employed to make sales, exchanges, or leases to or with customers in the ordinary course of an owner's business of selling, exchanging, or leasing real property to the public. The hearing officer concluded that Section 475.011(2) "covers [appellant] as an independent contractor if he does not receive compensation or a commission on a strictly transactional basis." He further concluded "that commission exclusion is limited to those whose total compensation i...
...was paid $2,000.00 per month as "salary" plus a monthly "commission" based upon gross monthly rents, the hearing officer reached the ultimate conclusions that the exception to the exemption did not apply to appellant; that the exemption set forth in Section
475.011(2) did apply to appellant; and, therefore, that appellant had not violated Section
475.25(1)(e)....
...lusions of law; nor was it required to do so (although it might well have been of help to this Court had the Commission provided an explanation). The hearing officer reached two determinative legal conclusions: first, that the exemption set forth in Section
475.011(2), Florida Statutes, applied to appellant and, therefore, appellant had not violated Section
475.25(1)(e), Florida Statutes, as charged in Count II of the complaint; and, second, that there was no evidence to support the charge, made...
...breach of trust in a business transaction," in violation of Section
475.25(1)(b), Florida Statutes. [2] We shall address each of these conclusions in turn. *1143 The hearing officer concluded that appellant was entitled to the exemption set forth in Section
475.011(2). The Department argues (for the first time on appeal) that this conclusion was erroneous because the hearing officer overlooked the fact that Section
475.011(2) applies only if an "individual, corporation, partnership, trust, joint venture, or other entity," either itself or through "an agent, employee, or independent contractor," "sells, exchanges, or leases its own real property " (emphasis added)....
...Because, according to the Department, appellant was neither leasing his "own real property" nor leasing the real property of the condominium association for which he was acting (but, instead, was leasing the real property of many individual unit owners), the exemption afforded by Section 475.011(2) is clearly not available to appellant. We agree. The clear language of Section 475.011(2) establishes an intent to limit its application to sales, exchanges or leases by an individual or entity of "its own real property." The evidence establishes unequivocally that, while appellant (as Four Seasons) was acting on behalf of the condominium association (as its "agent" or as an "independent contractor"), the real property being leased consisted of units owned by many individuals, rather than by the association. Therefore, Section 475.011(2) is not applicable, and the hearing officer's conclusion that the Section afforded an exemption to appellant was erroneous....
...ember 26, 1988. We are unable to say that appellant's expressed belief that his activities did not relate to his status as a real estate salesman was unreasonable. Prior to October 1, 1988, such activities had been exempt from Chapter 475 because of Section 475.011(5)....
...ification until October 1, 1988." On September 26, 1988, appellant became licensed as a "community association manager." Considering all of this, it is certainly understandable why one might not have realized that the relatively obscure amendment to Section 475.011(5) which became operative on October 1, 1988, had the effect for the first time of bringing within the jurisdiction of the Commission certain limited types of rental activities of condominium managers, in certain limited situations....
...Although the Commission erroneously concluded that there was sufficient evidence to sustain a finding of guilt as to Count I of the complaint and, therefore, erroneously rejected the hearing officer's findings and conclusions in that regard; as we have already discussed, the Commission correctly concluded that Section 475.011(2), Florida Statutes, did not afford an exemption to appellant and, therefore, it was free to reject the hearing officer's conclusion that the charge made in Count II of the complaint had not been proved....
...REVERSED and REMANDED, with directions. SHIVERS and ZEHMER, JJ., concur. NOTES [1] Although not challenged on appeal, we note that this ruling was correct. Erfman v. Department of Professional Regulation,
577 So.2d 710, 711 (Fla. 5th DCA 1991) ("Before [Section
475.011(5)] was changed in 1988 managers of condominium buildings were exempt from licensing requirements and thus could receive commissions on rentals.") [2] Two additional legal arguments presented by appellant to support the position that...
..., Florida Statutes, were discussed by the hearing officer. However, the hearing officer reached no conclusion as to either, presumably because he believed that it was unnecessary to do so, having found that appellant qualified for an exemption under Section 475.011(2). With regard to the first that appellant qualified, even after October 1, 1988 (the effective date of the statute's amendment), for the exemption set forth in Section 475.011(5) we agree with the decision in Erfman v....
...Stat.] and, therefore, were governed by Part VIII of Chapter 468, relating to "community association management," rather than by Chapter 475 while we agree with the hearing officer that "[t]he vagueness of the term `day-to-day' creates problems in attempting to harmonize the provision of Chapter 475 [ i.e., Section 475.011(5), as amended in 1988] and Part VIII of Chapter 468," we do not believe that it was the legislature's intent that rental activities such as appellant's be subsumed within the phrase "other day-to-day services involved within the oper...
...eant merely to act as a catchall for other incidental and routine activities not specifically enumerated. Part VIII of Chapter 468 was created by Chapter 87-343, Sections 7-13, Laws of Florida, and became effective on July 10, 1987. The amendment to Section 475.011(5), bringing under Chapter 475 rental activity by managers of condominium and cooperative apartment complexes for which remuneration is in some form other than "salary," became effective on October 1, 1988....
...Appellant's interpretation of the phrase "other day-to-day services involved within the operation of a community association" contained in Section
468.431(2) as intended to include the rental activities in which he was involved would create an irreconcilable conflict between that Section and Section
475.011(5), as amended in 1988; whereas, the construction we reach avoids any disharmony, while giving full effect to each....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...Johnson,
362 So.2d 674 (Fla. 1978). In 1979, chapter 475 was amended to exempt all employees of corporate property owners from the licensing requirement of chapter 475 if such employees were paid on a regular-salary basis rather than a commission basis. §
475.011(2), Fla....
...a. Section
721.20, Florida Statutes (1981), provided that all sellers of a time-sharing plan must be licensed real estate salesmen, brokers, or broker-salesmen pursuant to chapter 475, unless they fit within the exemptions to chapter 475 provided in section
475.011, Florida Statutes (1981)....
...[3] The effect of section
721.20, therefore, was to exempt from the licensing requirements all employees of a corporation engaged in selling corporate time-share plans who were paid strictly on a salary basis. Effective July 1, 1983, section
721.20 was amended to eliminate the reference to the exemptions set forth in section
475.011....
...ent from enforcing the provisions of section
721.20. Initially, we note that while this case has been on appeal the Florida Legislature has amended section
721.20 to, among other things, reinstate the specific reference to the exemptions provided in section
475.011, Florida Statutes (1983)....
...[S]aid terms [shall not] be applied to 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 bylaws, if said corporation shall not otherwise be classed as a real estate broker or a salesman. [2] Section 475.011, Florida Statutes (1979), states: This chapter does not apply to: * * * * * * (2) Any individual, corporation, partnership, trust, joint venture, or other entity which sells, exchanges, or leases its own real property; however, this e...
...[5] Section
721.20, Florida Statutes (1984 Supp.), states: Licensing requirements; suspension or revocation of license. (1) Any seller of a time-share plan must be a licensed real estate salesman, broker, or broker-salesman as defined in s.
475.01, except as provided in s.
475.011....
