© 2009 by South-Western, Cengage Learning SAMIRLANDER Chapter 6.

© 2009 by South-Western, Cengage Learning

SAMSAMIRLANDERIRLANDER

Chapter 6Chapter 6

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



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


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



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



DRE investigates:Applicant

Verifying info

Background checks

Complaints

Perceived violations of state or license laws without complaint


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



Statute of limitationWithin 5 years after the act

Within 5 years after the act was discovered or should have been discovered

Copy of complaint



Infraction review processValidity: has a state law or rule been broken?

If valid DBPR must investigateDepositions

Subpoenas

Witnesses

Documents


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



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



Formal Complaint:Formal Complaint:List of the charges

Respondent has 3 choicesRequest a stipulation

Informal Hearing

Dispute the allegationsRequest formal hearing



Administrative Law Judge presides over formal hearing

Recommended order:Recommended order:Case findings

Conclusion

Recommended penalty



Failure to respond to formal complaint

Default judgment

License revocation

Charges acceptedFinal order of action

Charges not acceptedHearing is scheduled


Complaint Process, Complaint Process, Procedures and appealProcedures and appeal

Informal Hearing

Licensee presents case at commission meeting

If no agreement – formal hearing



Formal HearingAdministrative law judge

Similar to court hearing

Judge drafts recommendation

Order is forwarded to DBPR



FREC issues final order

Summary suspensionSummary suspensionMay be ordered by secretary of DBPR



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



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


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



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



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



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



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



Revocation: permanent removal

Suspension: temporary removal

Administrative: imposed by FREC

Criminal: imposed by law

Civil: imposed by law



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



DBPR investigates:Licensees

Brokerage businesses

Schools

Citations: Identifies violation & penalty

Blind ads

Inappropriate handling of escrow accounts



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



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



3rd degree misdemeanorsActing without a valid, active license as:

Broker

Broker associate

Sales associate



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



Imposed by the court for acting without a real estate license

Deny rights to compensation



Reimburses the public for monetary losses when a licensee violates the license law



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



If payment is made from the fund:

License automatically suspended

Disciplinary action

To restore license:Repay full amount plus interest



Exception to penalties:Acting as directed by FREC in accordance with EDO

No repayment of fund

No disciplinary action



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



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

© 2009 by South-Western, Cengage Learning SAMIRLANDER Chapter 6.

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Transcript of © 2009 by South-Western, Cengage Learning SAMIRLANDER Chapter 6.