Flashcards in Unit 6 Deck (138):
A unit under the Department of Business and Professional Regulation. Is charged with the responsibility of investigating real estate complaints.
Division of Real Estate
To determine action and a remedy for a complaint under Florida law, 8 basic steps must be taken:
3. Probable Cause
4. Formal Complaint
5. Informal Hearing
6. Formal Hearing
7. Final Order
8. Judicial Review
Who can file a complaint with the Department against a licensee and where must it be filed?
Anyone can file a complaint with the Department against a licensee. A complaint is filed with the Department of Business and Professional Regulation.
If the complaint is in writing and signed by the complainant, who is charged with the responsibility of investigation?
The DBPR is charged with the responsibility of investigation.
When the investigation is complete, it is the responsibility of the _________ to determine the guilt or innocence of a licensee or potential licensee.
The _______ may also investigate on its own or investigate an anonymous complaint if the circumstances dictate (meaning that an immediate danger to the public exists).
A complaint must be legally sufficient to be investigated. What does this mean?
This means that the complaint must allege that a violation of Florida Statute, DBPR rule or FREC rule has occurred.
Occasionally, a complaint may be withdrawn by the person making the original charges, how does the DBPR handle this?
The DBPR may stop the investigation or may pursue it and the Commission will take appropriate action. If criminal activity is suspected, the Department may proceed with the investigation without notifying anyone who is under investigation.
In some cases for a minor violation the Department may issue a ___________. When does a violation fall under this?
Notice of Noncompliance; when it is a first time offense, providing that this offense does not endanger the public.
When is a citation issued?
If a violation is not corrected or the licensee does not comply in a timely manner, a Citation is issued with a fine, if warranted.
What if a violation is not listed in the citation rules?
Disciplinary hearings will proceed.
An emergency suspension order.
By whom and when is an emergency suspension ordered?
An emergency suspension is issued by the Secretary of the DBPR when the public is in immediate danger from the actions of the licensee.
What is an emergency suspension followed by?
The suspension must be followed by action by the FREC.
What does the DBPR not investigate?
Violations of Ethics do not fall under the DBPR’s investigation criteria (this is settled by the local association of REALTORS®) nor do items which are considered to be scruples or morals as they cannot be enforced either.
The DBPR only investigates a:
Law or rule
An _________ is appointed if the DBPR feels that the complaint is legally sufficient; or that after preliminary inquiry, feels that alleged violations are true; or, if the alleged violations are significant.
When would the DBPR appoint an investigator?
If the DBPR feels that the complaint is legally sufficient; or that after preliminary inquiry, feels that alleged violations are true; or, if the alleged violations are significant.
What are the next steps once an investigator is appointed?
A copy of the complaint is sent to the licensee or the licensee's attorney and the licensee will have an opportunity to answer the complaint against him. The answer is given to a Probable Cause Panel, investigating the case. DBPR adds its recommendation and forwards to the FREC Probable Cause Panel.
What are the next steps if the Probable Cause Panel finds the complaint to be criminal?
If the complaint is found to be criminal, it is forwarded to the State Attorney’s Office for resolution.
All information obtained in a complaint is confidential until when?
All the information obtained is considered confidential until 10 days after probable cause is found.
Investigators for the Department are allowed by law to:
Demand information from anyone and have subpoena* power from that department, if needed, for the investigation. Seek any records, documents or witnesses pertinent to the investigation.
Once investigated, what does the investigator do?
Report his findings in a written report for the probable cause panel.
What is an investigator not allowed to include in his report?
Not allowed any expression of personal feelings. All of findings must be Objective.
Who makes up the Probable Cause Panel?
Two members of the FREC. Only one of the FREC can be a lay member (one of the non-licensed members of the Commission) of the two and it may include the Chairperson or Vice Chairperson. The panel could also include former commissioners, with one of the panel being current.
What is the role of the Probable Cause Panel?
The two members act as a grand jury: they determine if they believe there is a law violation- not guilt or innocence. They review all the evidence and listens to Department staff attorney's recommendations. They recommend whether to take further action or dismiss the case to the DBPR.
Who appoints the two members of the Probable Cause Panel?
A legal order requiring a person to appear before the courts to give testimony.
Who reviews the investigator's report and receives the investigation of the DBPR?
The Probable Cause Panel
How long does the Probable Cause Panel have to make a decision?
The panel is required to meet and make a decision within 30 days.
Why don't other members of the FREC attend the hearings of the Probable Cause Panel?
They could be called upon at a later date to make judgment on the case if it advances.
Is the Probable Cause Panel hearing open to the public?
The hearing is not open to the public.
What is the only purpose of the Probable Cause Panel?
Its only purpose is to decide if a probable cause (a law violation) has occurred.
What happens if the Probable Cause Panel does not meet within the 30 day time frame?
If it does not meet within this time, the Department may make the decision.
What happens if the panel does not believe probable cause exists?
If the panel does not believe probable cause exists, the panel may dismiss the case or it may issue a letter of guidance about the matter to the person charged.
What could the Department do if the panel does not believe a probable cause exists?
The Department may refer the case to the FREC and the FREC may obtain its own independent counsel and continue the investigation.
How long does the Department have to override the decision of the panel and file its own charges?
What are the next steps if the panel believes there is probable cause?
The panel tells the Department to file a formal complaint against the licensee.
If the panel believes there is probable cause and the Department files a formal complaint, the licensee is entitled to:
The licensee (with his legal counsel) is entitled to a formal or informal hearing.
If probable cause is found, a _________ is filed against the licensee involved.
formal or "administrative" complaint
The formal complaint clearly defines:
All of the charges against the licensee.
How long does the Department have to file a complaint?
A limitation of 5 years in which to file the complaint.
How is the licensee notified of a complaint and how long does he have to file an answer?
The licensee is notified in writing and has 20 days to file an answer.
What should the licensee be issued with the complaint?
An Election of Rights form
What is the difference between a formal and informal hearing?
The formal hearing is before an administrative law judge; the informal hearing will be held if there are no disputed facts in the case, before the FREC, usually during a regular meeting.
What does the Election of Rights form explain?
It will explain the hearing process.
Once a licensee receives a complaint, the licensee has the choice of a formal or informal hearing. A licensee who does not agree with the charges, even in part, MUST request a:
Formal hearing if he/she wishes to present his or her case.
In a formal or informal hearing, the licensee is entitled to:
Present his case and he may have legal counsel present.
What happens if the licensee agrees to the stipulation in the complaint?
It is a voluntary agreement between the Division of Real Estate and the licensee, which will then end the case. The licensee may also choose Voluntary Relinquishment for Permanent Revocation. These agreements will still be set before the FREC so that they may be recorded.
How can a licensee respond to a complaint?
He can disagree; agree to the stipulation; or he may choose to voluntarily relinquish his rights.
When is an informal hearing held?
An informal hearing is held at a meeting of the FREC, usually at its regular meeting time.
Why is an informal hearing held?
The licensee is given the opportunity to be heard, to bring witnesses to support his case.
What Commission members are present at the informal hearing?
Commission members who did not serve on the probable-hearing panel will be present.
When there is an agreement of the facts, or a stipulation or the issue is resolved between the FREC and the licensee, the findings are:
Put in writing and are recorded.
When there is a dispute or disagreement on the facts, the case will be:
Sent to an administrative law judge for a formal hearing to hear the case.
In a formal hearing, each party involved in the case has the right to:
The formal hearing is similar to an adversarial hearing and the hearing officer may issue:
Subpoenas for the attendance of witnesses.
Notice must be given to the parties charged. The notice must include:
The date, time and place of the hearing;
The jurisdiction and legal authority under which the hearing is to be held;
A list of the rules purported to be broken;
A short summary of the case
In a formal hearing, the licensee also has the right to:
Be represented and to bring any evidence forth that supports his case. Witnesses may be subpoenaed and testimony is given under oath.
What does the administrative judge do in a formal hearing?
The administrative law judge prepares a Recommended Order, with the original delivered to the Division of Administrative Hearing and copies served to the parties.
How long does each party in a formal hearing have to file exceptions to the hearing officer's order?
In a formal hearing, the administrative law judge prepares a Recommended Order. What is the order based on?
The order is based on findings of fact and rulings of law.
What is the Final Order Panel for?
The Final Order Panel receives the Recommended Order from the administrative law judge order along with exceptions.
The Final Order Panel is made up of:
A Final Order Panel is convened of all the members of FREC except those that sat on the Probable Cause Panel in the same action.
Is the licensee present at the Final Order Panel?
The licensee has the right to be present, to have an attorney and to make final arguments.
In the Final Order, the FREC has the power to ____________ the Recommended Order.
accept, reject, reduce, or modify
In the Final Order, the FREC has the power to accept, reject, reduce, or modify the Recommended Order, with the final order being submitted within ___ days of receiving the Recommended Order.
The Final Order must be signed by:
The Chairperson, Vice Chairperson or Director of the Division of Real Estate.
The Final Order signed by the the Chairperson, Vice Chairperson or Director of the Division of Real Estate is called:
The Final Order or "certificate" in a complaint is:
The final directive of the FREC and can be used as prima facie evidence in civil suits. It is placed on record by the Division.
Requiring no further proof; acceptable on the face.
In the Judicial Review, if the FREC did not rule in his favor, the licensee may:
appeal to the courts.
In the Judicial Review, the licensee must appeal within ___ days to the:
30; District Court of Appeals
In a judicial review, while the case is under appeal, the licensee does not receive a stay enforcement (stop enforcement) against the FREC. The FREC or the courts may issue:
A writ of supersedeas (stop the suspension or revocation) if the situation warrants or if the public is not endangered.
In the Judicial Review, when the courts hear the case, the appeal will be based on:
Disputed issues of procedure, findings of fact and rulings of law.
In a judicial review, if a material error is found on the part of the FREC, the court:
Sends it back to the FREC for corrective action.
In a judicial review, if the court finds for the FREC:
The actions of the FREC will stand.
The Florida Real Estate Commission is authorized to do a number of tasks. These are:
deny a license
refuse to renew a license
suspend a license
revoke a license
issue Notice of Noncompliance
When a license is denied by the FREC, a copy of the order is mailed to the applicant by registered or certified mail. What does the order explain?
The reasons for denial and advising the applicant has 21 days from date of receipt to request a hearing.
What reasons may be the basis for denial of a license?
Did not file an application in the proper form or pay the correct fee,
Did not correct an error or omission on an application,
Did not take the examination within two years from date of application,
Did not pass the state exam or cheated on the exam,
Did not prove qualifications for licensure,
Has a reputation for bad business dealings or incompetence,
Is being investigated by another state for an act that would be a violation of Florida law,
Has committed an act in the previous year that could have resulted in discipline had the applicant been licensed at the time.
What are some reasons for a refusal to renew a license?
Did not file the proper paperwork in a timely fashion,
Did not pay the appropriate fee,
Did not take the continuing education or post-license courses,
Is being investigated in another state for an act that would be a violation of Florida law,
Has committed an act while licensed which resulted in discipline.
A suspension of a license is considered a short term, temporary penalty that can last up to:
Generally the penalty for an illegal act which was less serious in its violation than a revocation of license would demand. The Commission has flexibility to determine what punishment it will give, from the least penalty to the most, based on the Discipline Guidelines.
No licensee can act in a real estate capacity with a suspended license until the suspension is lifted, however, the licensee MUST complete:
All education requirements and renewals during his or her period of suspension.
A revocation of a real estate license is permanent and as such it is a very serious punishment. The only exceptions to this rule is:
When a licensee filed for renewal without completing his continuing education or post-licensure course by the expiration date; or if he filed an application which contained fraudulent or false information.
In cases such as when a licensee's license is revoked because the licensee filed for renewal without completing his continuing education or post-licensure course by the expiration date; or if he filed an application which contained fraudulent or false information. In these cases the individual cannot apply for a sales associate's license for a period of:
five years after the filing of the Final Order revoking the license unless the Commission specifies a lesser period of time in the Final Order, the lesser period of time based upon mitigating factors presented by the individual.
In cases such as when a licensee's license is revoked because the licensee filed for renewal without completing his continuing education or post-licensure course by the expiration date; or if he filed an application which contained fraudulent or false information. This is otherwise referred to as:
Revocation without Prejudice
In cases such as when a licensee's license is revoked because the licensee filed for renewal without completing his continuing education or post-licensure course by the expiration date; or if he filed an application which contained fraudulent or false information. The Commission may refuse to issue a license or renew a license and may be considered in any future attempts to gain a state approved license which deals with the public if:
they feel that the individual does not meet qualification standards of honesty and integrity.
If an individual does not meet qualification standards of honesty and integrity. This is referred to as:
When the active broker's license is revoked, all sales associates and broker associates licenses are placed in:
involuntarily inactive status
When the active broker's license is revoked, if it is a partnership or corporation, the partnership or corporation must:
re-qualify with a new partner.
When the active broker's license is revoked, if it is a partnership or corporation, the partnership or corporation must re-qualify with a new partner. While resolving replacement of the broker:
no real estate business may be conducted.
A Citation is issued for:
minor violations of the law when public welfare is not threatened.
Citations are issued by:
the Division of Real Estate
The licensee has ___ days to pay the citation (fine) or request a hearing. If the licensee does not respond within those days, more serious discipline may occur.
Generally citations are monetary punishments. These funds collected are considered administrative fees and go into:
the Florida Real Estate Recovery Fund.
A list of violations that clearly defines the usual punishment for each count is during a formal or informal hearing.
Disciplinary Guidelines 61J2-24.001
An example of a citation is:
Failed to maintain the required office entrance sign.
The penalty is: $100.00
The FREC has the right under law to fine anyone found guilty of a violation of Chapters
455 or 475
The fine for each offense of Ch. 455 or 475 is not to exceed:
$5,000 for each violation of Florida Statutes Chapter 475 and $5,000 for each offense under FS Chapter 455.
Fines for offenses of Ch. 455 or 475 are frequently given in connection with another punishment such as:
revocation or suspension
The money from the fines collected for offenses of Ch. 455 or 475 are collected and transferred to:
the Real Estate Recovery Fund
Probation as a penalty, unless otherwise stated, is for a period of:
90 days starting within 30 days after the filing of the Final Order.
The probation order contains:
Specific instructions to take a class or grant an audit which must be completed in a 90 day period unless the licensee asks and is granted an extension of time.
Why would an extension of a probation order be granted?
For illness or unavailability of a required course.
A licensee who is on probation may not conduct any real estate business during that time. A licensee can be released early from probation if:
the terms of the probation are completed and the required information being submitted to the Division of Real Estate Legal Section.
The _____ has set forth the rules, and statutes that are considered minor violations and for which the DBPR can provide a licensee, registrant or permit-holder with a Notice of Noncompliance.
A violation is minor if:
it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm.
The ___________ shall only be issued for an initial offense of a listed minor violation.
notice of noncompliance
The ______ issues the Notice of Noncompliance subject to the statute or rule that has been violated.
The notice must identify:
which rule or statue is violated and how to comply with the statute or rule.
A Notice of Noncompliance, delivered be certified or registered mail, can only be issued for an initial offense. The DBPR allows ___ days for compliance and notifies the licensee of this. The time begins from the time the licensee receives the Notice. If the licensee does not comply with the Notice in the time allowed, it will result in _____________. The broker does not have to cease operations with a Notice, but:
15; an issuance of a citation or regular discipline; must comply with it immediately.
The Department and the FREC do not issue criminal prison sentences. They only respond as shown in the previous slides. The commission shall promptly report to the proper prosecuting authority:
any criminal violation of any statute relating to the practice of a real estate profession regulated by the commission.
The penalty for a First Degree misdemeanor is:
not more than $1000 fine (for each offense) and/or not more than one year in jail.
Violations which lead to a Second Degree misdemeanor include:
a fine up to $500 and imprisonment for a period of not more than 60 days.
Because a corporation is an entity rather than a person, violations can be:
fined only. These fines are criminal, not administrative.
Unlicensed real estate activity, and falsifying an application are third degree felonies and may be punished with:
a fine of not more than $5,000 and/or up to 5 years in jail.
What if a buyer, seller, or tenant feels they have been victimized and seeks legal action against a broker?
It would go thru a civil court. Civil courts can and do seek recovery. The courts can also order the broker to pay damages if appropriate. The Commission has no authority to order any commission (compensation) paid to be returned to these alleged victims.
Why was The Real Estate Recovery Fund designed?
To serve as consumer protection for those consumers harmed in a real estate transaction and who seek compensatory (compensation) damages. Punitive damages (punishment) are never awarded.
How is the fund financed?
The fund is financed through money received from administrative fines and a surcharge on each new and renewing license.
What is the maxiumum dollars the fund can have in it and what happens when it reaches that level?
The maximum the fund can have is $1 million dollars and when it reaches that level, surcharges on licenses are suspended until the fund drops to $500,000 when the charge will again be levied.
What is the surcharge for a broker and sales associate?
The surcharges are $3.50 per year for both the new and renewing license for brokers and $1.50 for the new and renewing sales associates' license.
Who disburses the Real Estate Recovery Funds' funds?
The FREC authorizes the funds to be disbursed by the State Treasurer.
How would an individual obtain the funds from the Real Estate Recovery Fund?
To obtain the funds, a civil suit must be filed against a broker or sales associate claiming a violation of Chapter 475. The individual who has brought the lawsuit must claim that by reason of an act committed, as part of a real estate transaction, he suffered monetary damages. The suit goes to the civil courts of any competent civil jurisdiction in the state.
To claim funds from the Real Estate Recovery Fund, what must have been in place at the time of a real estate transaction ?
1. The broker or sales associate must have held a valid, active real estate license at that time.
2. The broker or sales associate was neither the seller, buyer, landlord or tenant in the transaction; nor an officer or member of a corporation or partnership, a member of a limited liability company or a member of a limited liability partnership,
3. The broker or sales associate was acting solely in the capacity of a real estate licensee in the transaction.
What happens if an injured party is awarded a judgement in a civil suit?
The assets of the licensee are first used to satisfy the judgment. A search of the assets must be done to offset or satisfy the judgment.
What happens once a payment has been made from the Real Estate Recovery Fund?
The licensee's license is automatically suspended until full repayment to the fund has been made.
What does the Recovery Fund not pay for?
Legal fees or for punitive damages against the licensee.
What must an injured party do before filing a claim against the Recovery Fund?
A notice by certified mail must be sent by the injured party to the FREC of the intent to file a claim against the Recovery Fund.
What is the maximum amount that can be claimed once a judgment is awarded to an injured party?
The maximum that can be claimed is $50,000 per single transaction or a maximum of $150,000 for multiple transactions or the unsatisfied portion of the judgment, whichever is less.
The only exception to the licensee being suspended for a claim on the Recovery Fund is when the broker:
followed an Escrow Disbursement Order* of the Commission and the order was overturned by the courts. The broker was exposed to civil damages and those damages can be paid by the Fund without the broker's license being suspended.
When the claim is based on earnest money disbursement, the Commission shall pay:
the defendant's reasonable attorney's fees and court costs and if the plaintiff wins in court, the plaintiff's reasonable attorney's fees and court costs.
Individuals who are not eligible for compensation from the Recovery Fund are:
a spouse of the judgment debtor
a licensed broker or sales associate who acted as a single agent or transaction broker in the transaction
a person whose claim is based on a real estate transaction where the licensee was an owner or controlled the property involved in the transaction or when the licensee was not acting as a broker or sales associate,
a person whose claim in a transaction in which the broker or sales associate did not have a valid, current active license,
a real estate brokerage corporation, partnership, limited liability company or limited liability partnership.
When the injured party is awarded a judgment, what is done first?
The assets of the licensee are first used to satisfy the judgment. A search of the assets must be done to offset or satisfy the judgment.
Once a payment has been made from the Real Estate Recovery Fund, the licensee's license is:
automatically suspended until full repayment to the fund has been made.
Review of Complaint Procedures:
1) Complaint given to DBPR -or- DBPR initiates complaint (has 5 years to file complaint). 2) DBPR determines if it is "legally sufficient." A Summary Suspension is ordered if the public good is endangered. 3) DBPR may issue Notice of Noncompliance or a Citation for lesser cases -or- DBPR Investigates: may issue subpoenas call witnesses, documents, records. 4) FREC creates a Probable Cause Panel- works as a Grand Jury! Licensee is notified ten days after Probable Cause is found. NOT Guilt or Innocence --2 members -Panel must review in 30 days after receiving from DBPR. Yes! Asks Department (DBPR) to File a FORMAL COMPLAINT.Licensee receives Formal Complaint- has 20 days to answer: May have an informal or formal hearing. Formal Hearing: Administrative Law Judge. Issues a Recommended Order. FREC (except Probable Cause Panel) reviews and issues Final Order in 90 days: Final Order may include:
• Suspension • Revocation • Probation • Fines. Informal Hearing: FREC -all commissioners except Probable Cause. FREC (except Probable Cause Panel) reviews and issues Final Order in 90 days: Final Order may include: • Suspension • Revocation • Probation • Fines. Licensee may file "an exception to Recommended Order- has 15 days. Licensee may appeal to District Court of Appeal for relief- 30 days to file an appeal.
No! Case is • dismissed and/or • Letter of Guidance Issued. DBPR may override the Probable Cause Panel and submit to the full FREC within 10 days.
____________ provides independent Administrative Law Judges to conduct hearings pursuant to FL statutes , pursuant to other law, and under contract with governmental entities.
The DOAH (Division of Administrative Hearings)