#### Jay WILLIAMS, Petitioner, v. FLORIDA REAL ESTATE COMMISSION and Ronald L. Myers, Respondents.

No. 69-27.

District Court of Appeal of Florida. Fourth District.

Jan. 21, 1970.

Rehearing Denied March 20, 1970.

John W. Williams, Jr., of Howell, Kirby, Montgomery & D’Aiuto, Rockledge, for petitioner.

Frank A. Wilkinson and Thomas M. Henkel, Jr., Winter Park, for respondents.

CROSS, Chief Judge.

The petitioner-defendant, Jay Williams, a registered real estate broker licensed to *240do business in the State of Florida, by way of a petition for a writ of certiorari seeks review of an order of the respondent, Florida Real Estate Commission, denying petitioner’s motion to quash an information alleging various violations of the Real Estate License Law by virtue of certain acts alleged to have been committed by petitioner in a foreign country. We grant certiorari, reverse the order on review, and remand with directions to quash the information.

On October 23, 1968, the respondent, Florida Real Estate Commission, by an authorized representative of the Commission as plaintiff, filed information against the defendant, Jay Williams, seeking revocation of defendant’s registration as a real estate broker in the State of Florida. The allegations in the information, excluding those which are superfluous, in essence read as follows:

That on and prior to September 14, 1967, the defendant, a person duly registered as a broker pursuant to ch. 475, F.S., was employed as a real estate broker by a Bahamian corporation who was in the business of selling real estate in the Bahama Islands; that in the course of his employment with the Bahama corporation the petitioner obtained three checks that were payable to his employer in the sum of $7,075 from three prospective purchasers as the full purchase price of a lot located on Grand Bahama Island and owned by the petitioner’s employer. The complaint further alleges that instead of delivering these checks to his employer, the petitioner fraudulently endorsed the checks and appropriated the money to his own use by depositing the money to his personal bank account at a bank in Fort Lauderdale; and that the petitioner immediately used $5,750 of that money to purchase the lot directly from the owner in his own name, retaining the difference of $1,325 and refusing upon demand of the true purchasers of the property to deliver a deed to the property to them or return the money. The complaint alleges that the petitioner violated F.S. § 475.25(1) (a), (c) and (e), and § 475.25(3), F.S.A. The prayer in the complaint sought, if the evidence warranted, a revocation of the petitioner’s registration as a real estate broker in the State of Florida.

The petitioner was served with a copy of the information, together with a notice of filing of the information in accordance with the provisions of F.S. § 475.26 and § 475.40, F.S.A. Thereafter petitioner duly filed and served his motion to quash the information and his answer to information. Hearing was held on petitioner’s motion to quash information, and an order entered on December 10, 1968, denying the motion. It is from this order denying petitioner’s motion to quash that petitioner has brought petition for writ of certiorari.

The question this court has for determination is whether the jurisdiction of the Florida Real Estate Commission, an administrative agency of this state, when seeking to suspend or revoke the license of a person duly registered under the Real Estate License Law, Ch. 475, Florida Statutes, extends to the investigation and regulation of acts which are committed outside the State of Florida, a question not heretofore determined by the courts of this state.

Administrative agencies are creatures of statutes. Their powers are special and limited, being only those which are legally conferred upon them by the statutes of the state, expressly or impliedly for the purpose of carrying out the aims for which they were established. State ex rel. Burr v. Jacksonville Terminal Co., 1916, 71 Fla.295, 71 So. 474. The statute which creates the administrative agency and invests it with its powers restricts it to the powers granted. The agency has no powers except those mentioned in the statute or reasonably implied. It is the statute, not the agency, which directs what shall be done. The statute is not a mere outline of policy, which the agency is at liberty to disregard or put into effect according to the agency’s ideas of what is best for the public welfare.

*241The general proposition adhered to by other jurisdictions is that the administrative powers of an agency are limited to the territory of which it is an agency. Administrative bodies have been held to have no power to act officially beyond the limits of their territory. Jurisdiction of an administrative agency created by the legislature of the state is statewide. State v. Florida State Imp. Commission, Fla.1950, 48 So.2d 156. Our research reveals no cases granting administrative powers to a state agency created by the legislature of a particular state beyond the territorial limits of the state itself. Pennsylvania R. Co. v. Board of Public Utility Com’rs, 1952, 11 N.J. 43, 93 A.2d 339; 73 C.J.S. Public Administrative Bodies and Procedure § 64.

An intensive review of ch. 475, F.S., does not reveal to us that the powers granted to the Florida Real Estate Commission pursuant to ch. 475, by the legislature of this state either expressly or impliedly grant jurisdiction to the Florida Real Estate Commission over acts committed outside the state by those persons registered under ch. 475. In fact, the implication is just to the contrary. Section 475.01(2) reads in part as follows:

> “(2) Every person who shall, *in this state,*for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor * * * ” (Emphasis added.)

Section 475.04(1):

> “(1) 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 * * (Emphasis added.)

We determine that the use of the words “in this state” imply that the Legislature of the State of Florida has seen fit only to grant the Florida Real Estate Commission power over its registrants for acts which occur within this state.

Prior to 1963 F.S. § 475.42(1) (e), F.S.A., stated “that no person shall sell or offer for sale any real property or interest therein, as defined in this chapter, where the real property involved or affected is *located outside the State of Florida,*except isolated, disconnected and single transactions, without obtaining a permit issued under the rules of the commission.” (Emphasis added.) In 1963 the Legislature of the State of Florida saw fit to repeal this section of the Florida Real Estate License Law (repealed by Laws of Florida 1963, Ch. 63-129, § 22). The repeal of this section of the 1961 Act indicates the intent of the legislature to limit the Florida Real Estate Commission to the consideration of acts of persons under its purview which occur within this state.

A contrary determination would bring forth intolerable injustices resulting in a government of men instead of a government of laws, and would be the birth of a gross abuse of procedural due process. We can envision the inability of a person charged with violation of § 475 to obtain evidence needed on his behalf as well as the frustration of trying to compel witnesses to appear on his behalf from a foreign country or state. Aside from this the funding of such procedures staggers the imagination.

It is not the function of courts to make laws. The founders of this nation entrusted lawmaking to the legislature. Lanier v. Bronson, Fla.App.1968, 215 So.2d 776. The authority sought by the agency, regardless of commendable intentions, is best left within the realm of the legislature, not the judiciary.

The Commission is not without remedy against those under its fold who have so erred to be adjudged guilty of a crime against the laws of the State of Florida or any other state, or of the United States involving moral turpitude for fraudulent or dishonest dealings. F.S. Section 475.25(1) *242(e), F.S.A., provides that the record of a conviction, certified or authenticated, is admissible in evidence under the laws of the state and shall be admissible as prima facie evidence of guilt. Thus, under this circumstance, notwithstanding the fact that the act which gave rise to the crime occurred outside the State of Florida, the adjudication of guilty is prima facie evidence of guilt, and if warranted the Commission may suspend and, under certain circumstances, may revoke the registration of a registrant pursuant to ch. 475.25, F.S.

In the instant case, there are no allegations in the complaint asserting that the petitioner had been adjudged guilty of a crime against the laws of the State of Florida, or any other state, or of the United States.

Accordingly, certiorari is granted, the order denying the motion to quash the information is reversed, and the cause is remanded with directions that the information be quashed.

It is so ordered.

McCAIN, J., concurs.

WALDEN, J., dissents, with opinion.

WALDEN, Judge

(dissenting):

It is my opinion that the Florida Real Estate Commission has the power and the jurisdiction to punish for the infractions of the Florida Real Estate Law without regard as to where the acts constituting the infractions occurred.

The business of a registrant or practitioner under the Real Estate License Law, because of its relationship to public welfare, is a proper subject of police regulation. The use of a real estate license is a privilege, and subject to the rules and regulations of that Code. See State ex rel. Davis v. Rose, 1929, 97 Fla. 710, 122 So. 225, wherein the predecessor statute was discussed.

We know that the jurisdiction of the Commission is not limited to a registrant’s misconduct in only real estate transactions. For instance, the Commission’s jurisdiction was upheld where the charge involved worthless checks. In McKnight v. Florida Real Estate Commission, Fla.App.1967, 202 So.2d 199, the Court said,

> “We do not believe the Commission exceeded its jurisdiction simply because these checks were not issued as a result of a real estate transaction. *The law specifically requires that a person in order to hold a real estate license must make it appear that he is honest, truthful, trustworthy, of good character, and that he bears a good reputation for fair dealing.*To issue worthless checks is the antithesis of good reputation and fair dealings and this misconduct need not be done during the negotiation and/or sale of real estate in order to be punishable. We think it would be ludicrous to construe the statutes to mean that a broker to be answerable to the Real Estate Commission must commit the unlawful acts when engaged in real estate negotiations but should he commit the same unlawful acts when not engaged in real estate negotiations he would still be of good character and beyond the Commission’s jurisdiction.” (Italics supplied.)

I think the analogy of the McKnight case would be equally applicable in the instant case. In other words, it is just as much an offense to commit the prohibited act outside Florida as it is to commit a wrong act outside the confines of a real estate transaction.

Florida Statute 475.25, entitled Grounds for Revocation or Suspension, provides a host of acts, both broad and specific, which would entitle the Commission to revoke or suspend a registration.1 While it is true *244that in Section (e) one of the grounds for Commission action would be the adjudication outside this state of a crime involving moral turpitude or fraudulent or dishonest dealing, it is noted that this constitutes only one of the very many grounds. Many, if not most, of the acts mentioned either would not constitute a crime or would be of the nature where the likelihood of prosecution or conviction would be exceedingly remote. Except for mention of the foreign conviction of a crime, there is no other geographic limitation, criteria or outer boundary beyond which wrong is permissible.

To say that a registrant can escape the penalties of the Real Estate License Law and flaunt every precept of honesty, truthfulness and fair dealing by the simple device of committing the acts outside this state’s boundaries takes too narrow a view of the legislative intendment and the purposes sought to be accomplished in the Real Estate License Law.

I would uphold the Florida Real Estate Commission in its effort to police its ranks and believe that this result accords with a fair reading of the Real Estate License Law.

I would deny certiorari.

1

. Section 475.25 Grounds for revocation or suspension—

> “(1) The registration of a registrant may be suspended for a period not ex-*243eeeding two years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:

> “(a) Been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction, or has violated a duty imposed upon him by law or by the terms of a listing contract, written, oral, express or implied, in a real estate transaction; or has aided, assisted, or conspired with any other person engaged in any such misconduct and in furtherance thereof; or has formed an intent, design or scheme to engage in any such misconduct, and has committed an overt act in furtherance of such intent, design or scheme; and it shall be immaterial to the guilt of the registrant that the victim, or intended victim, of the misconduct has sustained no damage or loss, or the damage or loss has been settled and paid, after discovery of the misconduct, or whether such victim, or intended victim, thereof, was a customer or a person in confidential relation with the registrant, or was an unidentified member of the general public; or,

> “ (b) Been guilty of false advertising in, on or by, signs, billboards, newspapers, magazines, periodicals, books, pamphlets, circulars, radio, telephone, telegraph, or other means of communication of publicity, of such character as to deceive or defraud investors, or prospective investors, in real property or interests therein, as more particularly described in subsection (2) of § 475.01, whether such property is owned, or purported to be owned by the registrant or by another; or,

> “ (c) Failed to account or deliver to any person any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document, or thing of value, or any secret or illegal profit, on any divisible share or portion thereof, which has come into his hands and which is not his property, or which he is not in law or equity entitled to retain, under the circumstances, and at the time which has been agreed upon, or is required by law, or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery; provided, however, that, if the registrant shall, in good faith, entertain doubt as to his duty to account and deliver said property, or as to what person is entitled to the accounting and delivery, or if conflicting demands therefore shall have been made upon him, and he has not appropriated the property to his own use, or intermingled it with his own property of like kind, he may notify the commission promptly, truthfully stating the facts, and ask its advice thereon, or after notice thereof to the commission, shall promptly submit the issue to arbitration by agreement of all parties, or in-terplead the parties, or otherwise seek an. adjudication of the question, in a proper court, and shall abide, or offer to perform, the advice of the commission or the orders of the court, or arbitrators, no information against him shall be permitted to be maintained; or,

> “(d) Violated any of the provisions of this chapter, or any lawful order, rule or regulation made or issued under the provisions of this chapter; or,

> *“*(e) Been guilty of a crime against the laws of this state or any other state or of the United States, involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state, shall be admissible as prima facie evidence of such guilt; or,

> “(f) Shared a commission with, or paid a fee or other compensation to a person not properly registered as a real estate broker or salesman under the laws of this state, for the referral of real estate business, clients, prospects, or customers, or for any one or more of the services set forth in § 475.01(2). For the purpose of this section it shall be deemed immaterial that the person to whom such payment or compensation is made shall have made said referral, or performed said service, from within this state, or elsewhere; provided, however, a registered real estate broker of this state may pay a referral fee or share a real estate brokerage commission with a real estate broker duly licensed, or registered, under the laws of a foreign state so long as said foreign broker does not violate any law of this state.

> “(g) Become temporarily incapacitated from acting as a broker or salesman with safety to investors or those in a fiduciary relation with him because of drunkenness, use of drugs, or temporary mental derangement, except that the suspension in such cases shall be for the period of such incapacity; or,

> “(h) Rendered an opinion that the title to any property sold is good or merchantable, except when correctly based upon a current opinion of a licensed attorney at law, or failed to advise a prospective purchaser to consult his attor*244ney on the merchantability of the title or to obtain title insurance.

> •‘(i) Failed, if a broker, to immediately place, upon receipt, any money, fund, deposit, check or draft, entrusted to him by any person dealing with him as a broker, in escrow with a title company or banking institution located and doing business in Florida, or, deposit said funds in a trust or escrow bank account maintained by him with some bank located and doing business in Florida, wherein said funds shall be kept until disbursement thereof is properly authorized, or, if a salesman, failed to immediately place with his registered employer any money, fund, deposit, check or draft, entrusted to him by any person dealing with him as agent of his registered employer. The commission shall establish rules and regulations to provide for records to be maintained by the broker and the manner in which such deposits shall be made.

> “(2) The registration of a registrant shall be revoked, if such registration, or a certificate issued thereon, is found to have been obtained by the registrant by means of fraud, misrepresentation or concealment, or if the registrant has become a nonresident of the state, or is confined in any state or federal prison, or insane asylum, or through mental disease or deterioration, the registrant can no longer safely be entrusted to deal with the public or in a confidential capacity; and a registration or a certificate may be revoked or cancelled, without prejudice to filing a proper application, or request for certificate, if the same shall have been granted or issued through the mistake or inadvertence of the commission.

> “(3) The registration of a registrant may be revoked if the registrant shall, for a second time, be found guilty of any misconduct that warrants his suspension under subsection (1) of this section, or if he shall be found guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him.