The Board proposes the rule amendment to include disciplinary guidelines for appraisal management company violations.

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Florida Real Estate Appraisal Board

RULE NO.: RULE TITLE:
61J1-8.002: Disciplinary Guidelines

PURPOSE AND EFFECT: The Board proposes the rule amendment to include disciplinary guidelines for appraisal management company violations.

SUMMARY: Provide disciplinary guidelines for appraisal management company violations.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COST AND LEGISLATIVE RATIFICATION:

During discussion of the economic impact of the rule at its Board meeting, the Board, based upon the expertise and experience of its members, determined that a Statement of Estimated Regulatory Cost (SERC) was not necessary and that the rule amendment will not require ratification by the Legislature. No person or interested party submitted additional information regarding the economic impact at that time. The Board has determined that this rule will not have an adverse impact on small business, or likely increase regulatory costs in excess of $200,000 in the aggregate within 1 year after implementation of the rule.

Any person who wishes to provide information regarding the statement of estimated costs, or to provide a proposal for a lower regulatory cost alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 455.2273, 475.614 FS.
LAW IMPLEMENTED: 455.227, 475.622, 475.6221(3), 475.624, 475.626, 475.6245 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Juana Watkins, Director, Division of Real Estate, 400 West Robinson Street, Hurston Building, North Tower, Suite N801, Orlando, Florida 32801

 

THE TEXT OF THE PROPOSED RULE IS:

61J1-8.002 Disciplinary Guidelines.

(1) Pursuant to Section 455.2273, F.S., the Florida Real Estate Appraisal Board sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon licensees guilty of violating Chapter 455 or Part II, Chapter 475, F.S. (For purposes of this rule, the term licensee shall refer to registrants, license holders or certificate holders, or appraisal management companies.) The purpose of the disciplinary guidelines is to give notice to licensees of the range of penalties which normally will be imposed for each count following a Section 120.57, F.S., hearing. The brief description of each violation is provided for quick reference and is not meant to convey all elements of any given statutory provision; the full language of each statutory provision cited must be consulted in order to determine the conduct involved. For purposes of this rule, the order of penalties, ranging from lowest to highest, is: reprimand, fine, probation, suspension, and revocation or denial. Pursuant to Sections 475.624 or 475.6245, F.S., combinations of these penalties are permissible by law. All penalties at the upper range of the sanctions set forth in the guidelines, i.e., suspension, revocation, etc., include lesser penalties, i.e., fine, probation or reprimand, which may be included in the final penalty at the Board’s discretion. Nothing in this rule shall preclude any discipline imposed upon a licensee pursuant to a stipulation or settlement agreement, nor shall the ranges of penalties set forth in this rule preclude the probable cause panel from issuing a letter of guidance in lieu of a finding of probable cause, where appropriate.

(2) As provided in Sections 475.624 or 475.6245, F.S., the Florida Real Estate Appraisal Board may, in addition to other disciplinary penalties, place a licensee on probation. The placement of the licensee on probation shall be for such a period of time and subject to such conditions as the Board may specify. Standard probationary conditions may include, but are not limited to, requiring the licensee: to attend pre-licensure courses; to satisfactorily complete a pre-licensure course; to attend and satisfactorily complete continuing education courses; to submit to reexamination through the state-administered examination, which must be successfully completed; to be subject to periodic inspections and interviews by an investigator of the Department of Business and Professional Regulation.

(3) The penalties are as listed unless aggravating or mitigating circumstances apply pursuant to subsection (4):

 

VIOLATION	PENALTY RANGE
	FIRST VIOLATION	SECOND AND SUBSEQUENT VIOLATIONS
(a)Section 475.622(1), F.S. Failed to place the registration, license or certification number adjacent to or immediately beneath the state designation.	Up to 30 days suspension and an administrative fine of $500.	Up to 90 days suspension and an administrative fine of $1,000.
(b) Section 475.622(1), F.S. Failed to include the appropriate designation and number in an advertisement.	Up to 30 days suspension and an administrative fine of $500.	Up to 90 days suspension and an administrative fine of $1,000.
(c) Section 475.622(2), F.S. Failed to use the state registration, license or certification designation in any appraisal report.	Up to 30 days suspension and an administrative fine of $500.	Up to 90 days suspension and an administrative fine of $1,000.
(d) Section 455.227(1)(g), F.S., Having been found liable in a civil proceeding for knowingly filing a false report or complaint with the department against another licensee.	Revocation and an administrative fine up to $5,000.	Revocation and an administrative fine of $5,000.
(e) Section 475.624(2) or 475.6245(1)(b), F.S. Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust, or Section 455.227(1)(m), F.S.	In the case of fraud, misrepresentation and dishonest dealing, revocation and an administrative fine up to $5,000.   In the case of concealment, false promises and false pretenses, 3 to 5 year suspension and an administrative fine of $1,000.   In the case of culpable negligence and breach of trust, $1,000 fine to a 1 year suspension.	Revocation and an administrative fine of $5,000.     Revocation and an administrative fine of $5,000.       Revocation and an administrative fine of $5,000.
(f) Section 475.624(3) or 475.6245(1)(c), F.S. False, deceptive or misleading advertising, or Section 455.227(1)(a), F.S.	$1,000 fine to a 1 year suspension.	Revocation and an administrative fine of $5,000.
(g) Section 475.624(4) or 475.6245(1)(d), F.S. Violated any of the provisions of this section or any lawful order or rule issued under the provisions of this section or Chapter 455, F.S., or Section 455.227(1)(b), F.S.	Revocation and an administrative fine up to $5,000.	Revocation and an administrative fine of $5,000.
(h) Section 475.624(5) or 475.6245(1)(e), F.S. Convicted or found guilty of a crime related to appraising or appraisal management company activities or involves moral turpitude or fraudulent or dishonest dealing, or Section 455.227(1)(c), F.S.	Suspension to revocation and an administrative fine up to $2,500.	Revocation and an administrative fine of $5,000.
(i) Section 475.624(6) or 475.6245(1)(f), F.S. Has license disciplined or acted against or an application denied by another jurisdiction, or Section 455.227(1)(f), F.S.	Imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida or suspension of the license until the license is unencumbered in the jurisdiction, in which the disciplinary action was originally taken, and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(j) Section 475.624(7) or 475.6245(1)(g), F.S. Impairment by drunkenness, or use of drugs or temporary mental derangement.	Suspension for the period of incapacity and an administrative fine up to $1,000.	Revocation and an administrative fine of $5,000.
(k) Section 475.624(8) or 475.6245(1)(h), F.S. Confined in jail, prison or mental institution; or through mental disease can no longer practice with skill or in a confidential capacity.	Suspension and an administrative fine up to $1,000.	Revocation and an administrative fine of $5,000.
(l) Section 475.624(9) or 475.6245(1)(i), F.S. Failed to give the Board written notice within 30 days after a guilty or nolo contendere plea or having been convicted of any felony.	5 year suspension to revocation and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(m) Section 475.624(10) or 475.6245(1)(j), F.S. Guilty for the second time of misconduct in the practice of real estate appraisal that demonstrates incompetent dishonest or negligent dealings with those persons with whom the licensee sustains a confidential relationship.	Suspension to revocation and an administrative fine up to $5,000.	Revocation and an administrative fine of $5,000.
(n) Section 475.624(11) or 475.6245(1)(k), F.S. Has made or filed a report or record which the licensee knows to be false or willfully failed to file a report or record or willfully impeded such filing as required by state or federal law, or Section 455.227(1)(l), F.S.	Suspension to revocation and an administrative fine up to $2,500.	Revocation and an administrative fine of $5,000.
(o) Section 475.624(12) or 475.6245(1)(l), F.S. Obtained a license by fraud, misrepresentation or concealment, or Section 455.227(1)(h), F.S.	Revocation.	Revocation.
(p) Section 475.624(13) or 475.6245(1)(m), F.S. Has paid money or other consideration to a member of the Board or employee of the Board to obtain a license registration or certification, or Section 455.227(1)(h), F.S.	Revocation.	Revocation.
(q) Section 475.624(14) or 475.6245(1)(n), F.S. Has violated any standard for the development or communication of a real estate appraisal or other provision of the Uniform Standards of Professional Appraisal Practice.	Probation up to a 1 year suspension.	Up to 5 year suspension to revocation and an administrative fine of $5,000.
(r) Section 475.624(15) or 475.6245(1)(o), F.S. Has failed or refused to exercise reasonable diligence in developing or preparing an appraisal report.	5 year suspension to revocation and an administrative fine of $1,000.	Up to 5 year suspension to revocation and an administrative fine of $5,000.
(s) Section 475.624(16) or 475.6245(1)(p), F.S. Has failed to communicate an appraisal without good cause.	$1,000 fine to a 1 year suspension.	Up to 5 year suspension to revocation and an administrative fine of $5,000.
(t) Section 475.624(17) or 475.6245(1)(q), F.S. Has accepted an appraisal assignment contingent upon the licensee reporting a predetermined result, analysis or opinion.	30 day suspension up to revocation.	Revocation.
(u) Section 475.624(18) or 475.6245(1)(r), F.S. Has failed to timely notify the department of any change in business location, or has failed to fully disclose all business locations from which he operates as an appraiser.	Up to 90 days suspension and an administrative fine of $500.	Up to 6 month suspension and an administrative fine of $1,000.
(v) Section 475.626(1)(a), F.S. Has practiced without a valid and current license, registration or certification.	5 year suspension to revocation and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(w) Section 475.626(1)(b), F.S. Has violated any order or rule of the Board.	Revocation and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(x) Section 475.626(1)(d), F.S. Made a false affidavit or affirmation or gave false testimony before the Board.	Up to 5 years suspension to revocation and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(y) Section 475.626(1)(e), F.S. Failed to comply with subpoena issued by the Department of Business and Professional Regulation, or Section 455.227(1)(q), F.S.	Up to 5 years suspension to revocation and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(z) Section 475.626(1)(f), F.S. Obstructed or hindered the enforcement of Part II of Chapter 475, F.S., or Section 455.227(1)(r), F.S.	Up to 5 years suspension to revocation and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(aa) Section 475.626(1)(g), F.S. Knowingly concealed information relating to violations of Chapter 475, F.S., Part II	Up to 90 days suspension and an administrative fine of $1,000.	Up to 5 year suspension and an administrative fine of $5,000.
(bb) Section 475.6221(3), F.S. Supervisory appraiser employed by a trainee appraiser.	Revocation and an administrative fine of $5,000.	Revocation and an administrative fine of $5,000.
(cc) Section 475.6222, F.S. Failure to provide direct supervision or training of trainee appraiser.	Revocation and an administrative fine of $5,000.	Revocation and an administrative fine of $5,000.
(dd) Section 455.227(1)(j), F.S. Aiding unlicensed activity	Revocation and an administrative fine of $5,000.	Revocation and an administrative fine of $5,000.
(ee) Section 455.227(1)(k), F.S. Failure to perform any statutory or legal obligation.	Up to 5 years suspension and an administrative fine of $5,000.	Revocation and an administrative fine of $5,000.
(ff) Section 455.227(1)(n), F.S. Exercising influence on client for licensee’s or third party’s financial gain.	Up to 5 years suspension and an administrative fine of $5,000.	Revocation and an administrative fine of $5,000.
(gg) Section 455.227(1)(o), F.S. Practicing or offering to practice beyond permitted scope.	Up to a 5 year suspension and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(hh) Section 455.227(1)(p), F.S. Delegating beyond permitted scope.	Up to a 5 year suspension and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(ii) Section 455.227(1)(t), F.S. Failure to timely report being convicted or found guilty of, or entering a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction (more than 30 days late).	Reprimand and an administrative fine of $1,000.	Revocation and an administrative fine of $5,000.
(jj) Section 475.6245(1)(s), F.S. Has influenced or attempted to influence the development, reporting, or review of an appraisal through coercion, extortion, collusion, compensation, inducement, intimidation, bribery, or other means.	Revocation and an administrative fine of $5,000.	Revocation and an administrative fine of $5,000.
(kk) Section 475.6245(1)(t), F.S. Has altered, modified, or otherwise changed a completed appraisal report submitted by an appraiser to an appraisal management company.	Revocation and an administrative fine of $5,000.	Revocation and an administrative fine of $5,000.
(ll) Section 475.6245(1)(u), F.S. Has employed, contracted with, or otherwise retained an appraiser whose registration, license, or certification is suspended or revoked to perform appraisal services or appraisal management services.	Up to revocation and an administrative fine of $5,000.	Revocation and an administrative fine of $5,000.

 

(4)(a) When either the petitioner or respondent is able to demonstrate aggravating or mitigating circumstances to the Board by clear and convincing evidence, the Board shall be entitled to deviate from the above guidelines in imposing discipline upon a licensee. Whenever the petitioner or respondent intends to introduce such evidence to the Board in a Section 120.57(2), F.S., hearing, advance notice of no less than seven (7) days shall be given to the other party or else the evidence can be properly excluded by the Board.

(b) Aggravating or mitigating circumstances may include, but are not limited to, the following:

1. through 6. No change.

Rulemaking Authority 455.2273, 475.614 FS. Law Implemented 455.227, 475.622, 475.6221(3), 475.624, 475.626, 475.6245 FS. History–New 1-7-92, Formerly 21VV-8.002, Amended 1-9-94, 8-17-97, 6-8-03, 12-4-06, 11-25-07, 1-11-11,________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Florida Real Estate Appraisal Board

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Florida Real Estate Appraisal Board

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 18, 2011

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: October 21, 2011