© 2009 by south-western, cengage learning samirlander chapter 6
TRANSCRIPT
Florida Real Estate:Florida Real Estate: Principles, Practices and Principles, Practices and
License LawLicense Law
Chapter 6Chapter 6
License Law: Violations,License Law: Violations,Complaints, Penalties and ProceduresComplaints, Penalties and Procedures
© 2009 by South-Western, Cengage Learning
© 2009 by South-Western, Cengage Learning
Key TermsKey Terms
Citation
Complaint
Formal complaint
Legally sufficient
Letter of guidance
Notice of noncompliance
Probable cause
Probable cause panel
Recommended order
Revocation
Summary (emergency) suspension
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Procedures for Disciplining Procedures for Disciplining LicenseesLicensees
State laws coverInvestigative process
Hearing process
Laws:Chapter 120, F.S.
Chapter 445, F.S.
Chapter 475, F.S.
Chapter 6IJ2
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Procedures for Disciplining Procedures for Disciplining LicenseesLicensees
DBPR investigates legally sufficient complaints of violations of any state:
Rule
Regulation
Statute
Legally sufficient: Legally sufficient: if allegation is true, a rule regulation or statue has been violated
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Procedures for Disciplining Procedures for Disciplining LicenseesLicensees
DRE investigates:Applicant
Verifying info
Background checks
Complaints
Perceived violations of state or license laws without complaint
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The Complaint Process, The Complaint Process, Procedures and AppealProcedures and Appeal
Complaint: Complaint: allegation of a violation of rule or law
Any written complaint is investigated
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The Complaint Process, The Complaint Process, Procedures and AppealProcedures and Appeal
Statute of limitationWithin 5 years after the act
Within 5 years after the act was discovered or should have been discovered
Copy of complaint
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The Complaint Process, The Complaint Process, Procedures and AppealProcedures and Appeal
Infraction review processValidity: has a state law or rule been broken?
If valid DBPR must investigateDepositions
Subpoenas
Witnesses
Documents
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
Probable cause panel: Probable cause panel: 2 members of FREC
Appointed by committee chair
Not open to public
Panel determines probable probable cause:cause: reasonable grounds for prosecution
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
If no probable cause case is dismissed via
Letter of guidanceLetter of guidance: suggestion of action to be taken
If DPR pursues the matter:Referred to FREC
FREC determines if further investigation is necessary
Outside legal assistance
Private investigators
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
Formal Complaint:Formal Complaint:List of the charges
Respondent has 3 choicesRequest a stipulation
Informal Hearing
Dispute the allegationsRequest formal hearing
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
Administrative Law Judge presides over formal hearing
Recommended order:Recommended order:Case findings
Conclusion
Recommended penalty
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
Failure to respond to formal complaint
Default judgment
License revocation
Charges acceptedFinal order of action
Charges not acceptedHearing is scheduled
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Complaint Process, Complaint Process, Procedures and appealProcedures and appeal
Informal Hearing
Licensee presents case at commission meeting
If no agreement – formal hearing
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
Formal HearingAdministrative law judge
Similar to court hearing
Judge drafts recommendation
Order is forwarded to DBPR
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
FREC issues final order
Summary suspensionSummary suspensionMay be ordered by secretary of DBPR
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
Written
Details charges
Includes determination of facts
Lists action taken
Advises order may be appealed
Takes effects 30 days from entry
Appeal Process
Judicial Review
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Complaint Process, Complaint Process, Procedures and AppealProcedures and Appeal
1. Complaint submitted to DBPR1. Complaint submitted to DBPR
2. Investigation / licensee notified2. Investigation / licensee notified
3. Determination of probable cause3. Determination of probable cause
4. Drafting of formal complaint4. Drafting of formal complaint
5. Formal or informal hearings5. Formal or informal hearings
6. Final order6. Final order
7. Appeal process7. Appeal process
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License Law ViolationsLicense Law Violations
Material misstatement on application
Fraud, dishonesty, or misrepresentation in business transaction
Guilty or pleading nolo contendere to a crime of moral turpitude
Failing to disclose
Failure to maintain office signs
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License Law ViolationsLicense Law Violations
Broker’s failure to register branch offices
Broker failure to register trade or fictions name
Failing to supervise Broker associate
Sales associate
False or misleading advertising
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License Law ViolationsLicense Law Violations
Placing blind advertisements
Failing to return escrow property as required by law
Failing to timely deposit monies into escrow account
Failing to review trust account
procedures
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License Law ViolationsLicense Law Violations
Failure to provide disclosure formsSingle agent relationships
Transaction broker relationships
Consent for transitions
Failure to include:Expiration date
Property description
Price & terms
Fee or commission
Principal’s signature in listing agreement
Failure to provide copies to principal
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License Law ViolationsLicense Law Violations
Listing with automatic renewal clause
Payment of commission to an unlicensed person for real estate activity
Accepting compensation from anyone other than the broker
Employing an associate who is not
properly licensed
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License Law ViolationsLicense Law Violations
Revocation: permanent removal
Suspension: temporary removal
Administrative: imposed by FREC
Criminal: imposed by law
Civil: imposed by law
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License Law ViolationsLicense Law Violations
Deny a license
Suspend for up to 10 years
Revoke
Probation
Fines:$5,000: Chapter 475 F.S. violations
$5,000: Chapter 455 F.S. violations
Citation
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License Law ViolationsLicense Law Violations
DBPR investigates:Licensees
Brokerage businesses
Schools
Citations: Identifies violation & penalty
Blind ads
Inappropriate handling of escrow accounts
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License Law ViolationsLicense Law Violations
30 days to respondIf accepted, citation acts as final order
If disputed, reply in writingFormal hearing may be held
Other administrative penaltiesNotice of noncompliance
Probation
Education courses
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License Law ViolationsLicense Law Violations
Most Chapter 475 Violations are 2nd degree misdemeanors
Fine up to $500
60 days imprisonment
Fines determined by the court
1st degree misdemeanorsFine up to $5,000
1 Year imprisonment
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License Law ViolationsLicense Law Violations
3rd degree misdemeanorsActing without a valid, active license as:
Broker
Broker associate
Sales associate
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License Law ViolationsLicense Law Violations
Penalties:$5,000 per offense and/or up to 5 years in jail
Cease and desist order and fines up to $5,000 per count
Criminal case by the state district attorney
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License Law ViolationsLicense Law Violations
Imposed by the court for acting without a real estate license
Deny rights to compensation
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License Law ViolationsLicense Law Violations
Reimburses the public for monetary losses when a licensee violates the license law
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License Law ViolationsLicense Law Violations
To recover from the fund:Judgment is issued by the court
File for a writ of execution
Assets are liquidated
If all damages are not recovered – collect from fund
Action must be brought within 2 years
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License Law ViolationsLicense Law Violations
If payment is made from the fund:
License automatically suspended
Disciplinary action
To restore license:Repay full amount plus interest
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License Law ViolationsLicense Law Violations
Exception to penalties:Acting as directed by FREC in accordance with EDO
No repayment of fund
No disciplinary action
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License Law ViolationsLicense Law Violations
Limits of the funds:Per licensee: $150,000
Per transaction: $50,000
Minimum balance: $500,000If balance is below $500,000
Fee for initial and renewal of license
If balance is above $1,000,000
Fee discontinued
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License Law ViolationsLicense Law Violations
Ineligible to collect:Licensee recovering damages from a transaction acting as a licensee
Spouse of offending licensee
Individual acting without a valid license at time of offense & loss
Licensee who committed acts on inactive status
Corporation, branch office, or partnership