CopyCited 3 times | Published | Florida 1st District Court of Appeal
...of Business Regulation, Tallahassee, for appellant. J. Lofton Westmoreland of Sherrill, Moore, Hill & Westmoreland, Pensacola, for appellees. ZEHMER, Judge. On June 30, 1983, appellees, LeBrun N. Smith and Condoshare Group, Inc., filed a declaratory judgment action to determine whether section 721.20, Florida Statutes (1983), violates their constitutional rights to due process and equal protection. U.S. Const. amend. XIV, § 1, and Art. 1, §§ 2, 9, Fla. Const. The Department of Business Regulation, Division of Florida Land Sales and Condominiums (Department) was named as defendant. The circuit court entered final judgment holding section 721.20 unconstitutional as violative of due process and enjoining its enforcement by the Department....
...nt of chapter 475 if such employees were paid on a regular-salary basis rather than a commission basis. §
475.011(2), Fla. Stat. (1979). [2] In 1981, the legislature enacted the Florida Real Estate Time Sharing Act, chapter 81-172, Laws of Florida. 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. Chapter 83-264, Laws of Florida. [4] As amended, section
721.20 required that "[a]ny seller of a time-share plan shall be a licensed real estate salesman, broker, or broker-salesman, as defined in section
475.01 or its successor" and that "[n]o seller or developer may employ a person for the purposes of offering time-share periods for sale unless such person is a licensed salesman, broker, or broker-salesman as defined in section
475.01 or its successor." Appellees initiated this declaratory judgment proceeding to determine whether section
721.20, Florida Statutes (1983), was unconstitutional. Throughout the proceeding, the Department has taken the position that it was construing section
721.20 as not requiring licensing for individual owners of property who wished to sell their own property as time-share plans but would require licensing for employees of corporate property owners who engage in the selling of *141 time-share plans. Appellees contend that "[t]he new provisions of §
721.20 create an unreasonable and impermissible classification and thus violate Appellee's rights to due process and equal protection as guaranteed under the Florida and United States Constitutions" (appellees' answer brief, p. 4). The circuit court entered a final judgment declaring section
721.20 to be unconstitutional because: It is well established under Florida case law, specifically on the authority of Florida Real Estate Commission v....
...zation of a licensed real estate broker or salesman. The court explicitly found that the statute "denies Plaintiffs due process of law" on the authority of McGregor and Johnson and permanently enjoined the Department 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)....
...[5] Currently the employees of a corporate property owner who are paid on a regular-salary basis and conduct selling activities for time-share plans need not be licensed pursuant to chapter 475. We are not called upon in this case to review the constitutionality of section 721.20 as it presently exists but, rather, as it existed in 1983. Because section 721.20 as it then existed is potentially enforceable against sellers of time-share plans that were unlicensed at that time, the question before us has not become moot. We do not, as was suggested on appeal, consider the 1984 amendment a clarification of legislative intent as to the meaning of the statute in 1983. The legislature specifically amended section 721.20 in 1983 to require licensing of all sellers of time-share plans, and that was obviously its *142 intended purpose....
...erely to clarify the intent of the substantially different 1983 amendment. Throughout this judicial proceeding, in the court below and on appeal, the Department has taken the position that it will not attempt to enforce the licensing requirements of section 721.20 against individual owners of time-share plans, but will enforce the provisions only against employees of corporate owners. We conclude, however, that this construction substantially alters the plain meaning of the language used in the statute. Section 721.20, by its very terms, applies to all sellers of time-share plans, without limitation or exclusion, whether individual or corporate owners and their employees. It is this statutory meaning that we review for lack of constitutionality. The trial court held section 721.20 unconstitutional in specific reliance upon the Supreme Court's opinions in McGregor and Johnson....
...y owners. The Court discussed basic equal protection doctrine and held there was no rational basis for distinguishing between employees of corporate property owners and individual property owners. The Department's construction of the 1983 version of section 721.20 distinguished between private owners and corporate owners and thereby created equal protection issues controlled by McGregor and Johnson. But the plain language of section 721.20, as we construe it, requires that all sellers of time-share plans be licensed, so we are not faced with the equal protection problem decided in McGregor and Johnson. [6] Those decisions do not support the trial court's finding that the statute violates due process. The following principles are pertinent to resolving whether section 721.20 violates due process: The due process clause of the State Constitution, Declaration of Rights, § 12, and of the Fourteenth Amendment to the Federal Constitution, U.S.C.A....
...commission or other compensation 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. [3] Section 721.20, Florida Statutes (1981), states: Any seller of a time-sharing plan shall be a licensed real estate salesman, broker, or broker-salesman, pursuant to chapter 475 or its successor, and shall be subject to all of the provisions of that chapter. This section shall not apply to those individuals who are exempt from chapter 475 or to those time-sharing plans which are registered with the Securities and Exchange Commission. [4] Section 721.20, Florida Statutes (1983), states: Any seller of a time-share plan shall be a licensed real estate salesman, broker, or broker-salesman, as defined in s....
...ies within this state, nor to those time-share plans which are registered with the Securities and Exchange Commission. For purposes of this section, both time-share licenses and time-share estates are considered to be interests in real property. [5] Section 721.20, Florida Statutes (1984 Supp.), states: Licensing requirements; suspension or revocation of license....
