Flashcards in Chapter 6 - Complaints, Violations, and Penalties Deck (68):
Who is assigned the responsibility for investigative functions related to real estate?
The Division of Real Estate (DRE)
What are the seven steps that are involved in the process of dealing with complaints of alleged violations?
1. Filing the complaint
3. Probably cause
4. Formal complaint
5. Informal hearing or formal hearing
6. Final order
7. Judicial review (appeal)
A complaint is legally sufficient if it contains facts indicating that a violation of any of the following has occurred:
Any existing, legally enacted DBPR rule
Any existing, legally enacted FREC rule
Is the Department allowed to initiate an investigation on their own?
Yes, if it has reasonable cause to believe that a licensee has violated a Florida statute, Department rule, or FREC rule
Furthermore, the Department may conduct an investigation without notification to anyone subject to the investigation if the act under investigation is a criminal offense
What is a summary suspension, when would it be issued, and by whom?
An emergency suspension order
In a situation where there are a lot of complaints and lots of other situations that involve many others
The DBPR secretary (or a legally appointed designee)
Are probable-cause proceedings open to the public?
No, and the remaining FREC members are prohibited from attending
What is a formal complaint and when is it filed?
An administrative complaint; an outline of allegations of facts and charges against the licensee
Issued after probable cause is found to exist
What must happen for the licensee to be entitled to an informal hearing?
The licensee-respondent must admit to the alleged facts
What is the final order?
FREC's final decision as to innocence or guilt and the determination of the appropriate penalty
What are some examples of grounds for denial of an applicant's request for licensure?
Neglecting to answer completely all questions on the application
Neglecting to forward the proper fees with the application request
Neglecting to correct errors or omissions on applications returned
Failing the complete successfully the required written examination
What are some examples of cause for licensure denial?
The applicant lacked qualifications to register
The applicant did not possess the character required by the provisions of Florida Statutes 455 and 475
The applicant did not possess the general competence to deal with the public, or complaints against him were received by the FREC or the DBPR
The applicant was guilty of acts that would have resulted in revocation or suspension of license had he already been licensed
The applicant acted in violation of any provision of F.S. 475.42 or was at the time subject to discipline under F.S. 475.35
The applicant received assistance or cheated while taking a state exam
What is the maximum period for which the FREC may suspend a license?
Revocation of a license is:
Exceptions to "permanent" revocation occur when:
A licensee has filed for renewal but has not complied with the continuing or post-licensing education requirements prior to the expiration date or when an individual filed an application for licensure that contained false or fraudulent information
What are the three types of penalties?
What are administrative penalties?
Possible penalties include:
Denail of an application for a license; refusal to recertify a license for renewal; revocation of a license; suspension of a icense for not more than ten years; a fine not to exceed $5,000 for each separate violation; and probation, reprimand, citation, notice of noncompliance, or other penalty
What are civil penalties?
May be enforced by the courts if a person has performed any real estate services without a license
View as being sued in a court of law
What are criminal penalties and how may it be punished?
A violation of Florida Statue 475 or any lawful order, rule, or regulation is legally a misdemeanor of the second degree
It may be punishable by a fine of not more than $500 and/or by imprisonment for not more than 60 days
What are first-degree criminal penalties?
Failing to provide accurate and current rental information for a fee
Penalty is a fine of not more than $1,000 and/or up to one year in jail
Ex. selling a rental list knowing it is incorrect
What degree felony is the unlicensed practice of real estate and how is it punished?
A fine of not more than $5,000 and/or up to five years in jail
Can the FREC deny payment of compensation or direct repayment of compensation already paid?
No, but they can issue an order to deny, suspend, or revoke a license and include a stipulation that the compensation already received must be repaid before the order will be vacated (set aside)
What is the Florida Real Estate Recovery Fund?
Under the FREC; created as a separate account in the Professional Regulation Trust Fund to reimburse any person, partnership, or corporation judged by a Florida court to have suffered monetary damages (but not punitive damages) as a result of an act committed by a broker or sales associate
What is the procedure for the Florida Real Estate Recovery Fund?
1. Sue licensee and win
2. If buyer/seller cannot collect money, they can go to FREC and dip into account
What is required before a claim for possible recovery be accepted?
A civil suit has to have been filed and a final judgment subsequently rendered against an individual licensee as defendant, not merely against a real estate brokerage, partnership, corporation, limited liability company, or limited liability partnership
Payments for claims arising out of the same transaction are limited, in total, to:
$50,000 or the unsatisfied portion of a judgment claim, whichever is less, regardless of the number of claimants or parcels of real estate involved in the transaction
Payments for claims based on judgments against one broker or sales associate may not exceed, in total:
What is a breach (of duty or in contract)?
The breaking of a promise or obligation, either by an act of commission or omission; default; nonperformance
What is commingle?
To mix the money or other personal property of a buyer or seller with a broker's own money or property; to combine escrow money with personal or business funds
What is concealment?
The withholding of information or a material fact
What is conversion?
Unauthorized control or use of another's personal property; the taking of another person's property
What is culpable negligence?
Guilty of failing to use the care a reasonable person would exercise
What is failure to account for and deliver?
The act of failing to pay money to a person entitled to receive it.
What is fraud?
Intentional deceit for the purpose of inducing another to rely on information to part with some valuable thing belonging to him or her or to surrender a legal right
What is material fact?
A piece of information that is relevant to a person making a decision and that affects the value of the real property
What is misrepresentation?
An untrue statement of fact; an incorrect or false misrepresentation of the facts
What is moral turpitude?
Conduct contrary to honesty, good morals, justice, or accepted custom; case law has further defined moral turpitude to mean a depravity against society
The probable-cause panel includes:
A total of two members
At least one professional member
At least one current member
A person is eligible to seek recovery from the Real Estate Recovery Fund if:
He received a final judgement against a licensee in a legal action and the case was based on a real estate brokerage transaction (assuming no specific exceptions apply)
The decision as to whether probable cause exists is made by a majority vote of the:
Probable-cause panel (or the Department if there is no panel)
Which action would cause a license to be revoked without prejudice?
A sales associate received her license as a result of an administrative error by the Division of Real Estate
Which offense is a misdemeanor of the first degree?
Failing to provide current and accurate rental information for a fee
Who prepares and submits a recommended order of findings and conclusions in a complaint case?
Administrative law judge
Any final order issued by the DBPR Secretary or a legally appointed designee that results from circumstances that pose an immediate danger to the public's health, safety, or welfare is called a:
Summary or emergency suspension
A buyer gives the broker a $47,500 earnest money deposit. The broker defrauds the buyer of the $47,500. The buyer sues the broker and is awarded a judgment in the amount of $62,500 for the original $47,500 deposit plus $15,000 for punitive damages. Because the buyer was unable to collect the judgment from the broker, the buyer requests relief from the Florida Real Estate Recovery Fund. How much can the buyer receive from the Recovery Fund?
The DBPR is authorized to investigate a written complaint filed against a licensee:
If the alleged complaint is legally sufficient
Neglecting to correct omissions or errors on a license application returned by the DBPR to the applicant for correction is considered grounds for:
Denial of the application
If a broker's license is suspended, the licenses of all sales associates working for that broker are:
Placed in involuntary inactive status
One of the grounds for the suspension or revocation of a licensee's license is the unauthorized use or retention of money or property otherwise known as
Less than careful attention to duties, one of the grounds for suspension or revocation of a licensee's license, is otherwise called:
When payment from the Real Estate Recovery Fund is made to satisfy a claim against a licensee because the licensee did not comply with an escrow disbursement order, the Commission's action against the licensee must be:
Which type of penalties may be imposed for violations of the real estate license law?
Criminal, civil, and administrative penalties
The Florida Real Estate Commission may not impose which disciplinary penalty?
One penalty that the Commission may not legally levy is to:
Deny the payment of compensation
The collective amount to be paid from the Real Estate Recovery Fund as a result of any one real estate transaction may not exceed:
The licensee charged in a DBPR complaint is made public when?
10 days after probable cause is found to exist
The administrative law judge has issued a Recommended Order. How many days will a party to the hearing have to file an exception to the Recommended Order?
If Joe violated a rule under Chapter 475 FS and this is his first offense, what is the period of time of probation he could receive unless otherwise stated by the Commission?
What Florida agency is responsible for investigating real estate complaints?
Why is a summary suspension order given?
Because the Department feels that there is an immediate danger to public health, safety, and welfare
When a licensee is being served with the Final Order of the FREC, how many days does he have to file an appeal with the District Court?
The Department receives an unsigned complaint. What can the Department do?
Investigate the complaint if the Department wishes
A broker was sued in a civil action following an earnest money dispute, which the broker had reported to the FREC. He had received an Earnest Money Disbursement Order. The court awarded damages of $15,000 to the defendant against the broker. The broker paid the damages and requested reimbursement from the Real Estate Recovery Fund. What is true?
Because the FREC issued the Earnest Money Disbursement Order, the broker is entitled to repayment up to $50,000
The Probable Cause panel:
Holds an investigation, and, if probable cause is found to exist, will direct the Department to file a formal complaint against the subject of the investigation
A licensee has been issued a Final Order of the FREC, suspending his license. How long a time period is the maximum a suspension can last?
The maximum is 10 years
_____________ provides independent Administrative Law Judges to conduct hearings pursuant to Florida Statutes, pursuant to other law, and under contract with governmental entities.
The Division of Administrative Hearings (DOAH)
The _______ administers and enforces the real estate license law, Chapter 475, Part I, Florida Statutes.
Suspension of a license can last up to: