Opinion No. (1977)

REQUESTED BY: Paul Quinlan, Director, Nebraska Real Estate Commission, State Office Building, Lincoln, Nebraska.
May a person licensed as an associate real estate broker also engage in business as a broker?

A person who has a broker's license and is employed as an associate broker may not at the same time function as a broker.

The statutes of the State of Nebraska relating to the State Real Estate Commission were extensively redrafted by LB 68, Eighty-third Legislature, First Session, 1974, at that time the term `associate broker' entered the statutory lexicon of the Real Estate Commission. Previously, persons were licensed as brokers or salesmen and no distinction was made between the licenses given brokers that related to the functions they performed within an organization or entity operated for the purpose of transacting business in real estate. In LB 68, currently appearing as sections 81-885.01
through 81-885.47 certain definitions appear which we believe compel the result we have reached. Section 81-885.01
defines the terms broker, associate broker and salesman. Generally, the definition of a broker is a person who engages in the business of transacting business relating to the sale, management, exchange or operation of real estate. An associate broker is defined as:

"(3) Associate broker shall mean a person who has a broker's license and who is employed by another broker to participate in any activity described in subdivision (2) of this section;"

Section 81-885.02 provides that it shall be unlawful for a person to be an associate broker without first obtaining a license as an associate broker. Section 81-885.19 provides that the license of each associate broker shall be mailed or delivered to the broker by whom the associate broker is employed and kept in custody and control of that broker. The employing broker is required to display his own license and those of his associate brokers in his place of business. A pocket card is to be prepared by the Commission to be issued to an associate broker and upon this card the name and address of the employing broker is required to appear. Section81-885.20(2) requires that the employing broker shall return the license of an associate broker to the Commission upon termination of the associate broker and the associate broker must return his pocket card to the Commission. Section81-885.20(3) requires that when an associate broker changes his status to that of broker, a transfer fee shall be paid to the Commission. Section 81-885.24 authorizes the Commission to censor or revoke or suspend any license of (section 81-885.24(8)) an associate broker when such person accepts a commission or other valuable consideration from someone other than his employing broker without consent or (section 81-885.24(23)) by failing to deposit with his employing broker any money or other funds entrusted to him by a person dealing with him as the representative of his broker.

With these sections in mind it is our opinion that a person performing the acts of a broker employed by a broker may not act in any capacity other than that of an associate broker. Such a person can only be licensed as an associate broker.

Our conclusion is based upon the fact that a person licensed as an associate broker is not authorized to have the control or possession of his own license nor do we find any provision in the statute which would authorize the issuance of a license as a broker and as an associate broker to the same person. It is also clear that the act is intended to closely regulate the profession of real estate brokerage within the State of Nebraska. The Commission is given broad powers in this respect. However, the powers of the Commission are limited by the authority granted under the statutory enactment. Lacking a statutory authorization feo dual licensure of single individuals, it is our opinion that the Commission is limited to the issuance of a license as either a broker or an associate broker.

A person licensed as an associate broker may perform only those acts authorized. Since no authorization exists to act as a broker, an associate broker may not so act.