61J2-24.001: Disciplinary Guidelines
PURPOSE AND EFFECT: To change affect provisions relating to designated penalties in compliance with Section 455.2273, F.S.
SUMMARY: This rule changes affect provisions relating to designated penalties in compliance with Section 455.2273, F.S.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared. The Board determined the proposed rule will not have an impact on small business.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 455.2273, 475.05 FS.
LAW IMPLEMENTED: 455.227, 455.2273, 475.22, 475.24, 475.25, 475.42 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Lori Crawford, Deputy Clerk, Division of Real Estate, 400 West Robinson Street, Hurston Building, North Tower, Suite N802, Orlando, Florida 32801
THE FULL TEXT OF THE PROPOSED RULE IS:
(Substantial Rewording of Rule 61J2-24.001 follows. See Florida Administrative Code for present text.)
61J2-24.001 Disciplinary Guidelines.
(1) Pursuant to Section 455.2273, F.S., the Commission sets forth below a range of disciplinary guidelines from which disciplinary penalties will be imposed upon licensees guilty of violating Chapter 455 or 475, F.S. 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 during a formal or an informal hearing. 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 Section 475.25(1), F.S., combinations of these penalties are permissible by law. Nothing in this rule shall preclude any discipline imposed upon a licensee pursuant to a stipulation or settlement agreement, nor shall the range of penalties set forth in this rule preclude the Probable Cause Panel from issuing a letter of guidance.
(2) As provided in Section 475.25(1), F.S., the Commission 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 Commission 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 post-licensure courses; to satisfactorily complete a post-licensure course; to attend continuing education courses; to submit to and successfully complete the state-administered examination; to be subject to periodic inspections and interviews by a DBPR investigator; if a broker, to place the license on a broker associate status; or, if a broker, to file escrow account status reports with the Commission or with a DBPR investigator at such intervals as may be prescribed.
(3) The penalties are as listed unless aggravating or mitigating circumstances apply pursuant to subsection (4). The verbal identification of offenses is descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.
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VIOLATION |
MINIMUM PENALTY |
MAXIMUM PENALTY |
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(a) Section 475.22, F.S. Broker fails to maintain office and sign at entrance of office. |
(a) Reprimand |
(a) 90-day suspension |
|
(b) Section 475.24, F.S. Failure to register a branch office |
(b) Reprimand |
(b) 90-day suspension |
|
(c) Section 475.25(1)(b), F.S. Guilty of Fraud, misrepresentation, and dishonest dealing. Concealment, false promises, false pretenses by trick, scheme or device. |
(c) $250 administrative fine $250 administrative fine |
(c) $5,000 administrative fine and revocation $5,000 administrative fine and revocation |
|
Culpable negligence or breach of trust. |
$250 administrative fine |
$5,000 administrative fine and revocation |
|
Guilty of violating a duty imposed by law or by the terms of a listing agreement; aided, assisted or conspired with another; or formed an intent, design or scheme to engage in such misconduct and committed an overt act in furtherance of such intent, design or scheme. |
$250 administrative fine |
$5,000 administrative fine and revocation |
|
(d) Section 475.25(1)(c), F.S. False, deceptive or misleading advertising. |
(d) $250 administrative fine |
(d) $5,000 administrative fine and revocation |
|
(e) Section 475.25(1)(d), F.S. Failed to account or deliver to any person as required by agreement or law, escrowed property. |
(e) $250 administrative fine |
(e) $5,000 administrative fine and revocation |
|
(f) Section 475.25(1)(e), F.S. Violated any rule or order or provision under Chapters 475 and 455, F.S. |
(f) $250 administrative fine |
(f) $5,000 administrative fine and revocation |
|
(g) Section 475.25(1)(f), F.S. Convicted or found guilty of a crime related to real estate or involving moral turpitude or fraudulent or dishonest dealing. |
(g) $250 administrative fine |
(g) $5,000 administrative fine and revocation |
|
(h) Section 475.25(1)(g), F.S. Has license disciplined or acted against or an application denied by another jurisdiction. |
(h) $250 administrative fine |
(h) $5,000 administrative fine and revocation |
|
(i) Section 475.25(1)(h), F.S. Has shared a commission with or paid a fee to a person not properly licensed under Chapter 475, F.S. |
(i) $250 administrative fine |
(i) $5,000 administrative fine and revocation |
|
(j) Section 475.25(1)(i), F.S. Impairment by drunkenness, or use of drugs or temporary mental derangement. |
(j) Suspension for the period of incapacity |
(j) Suspension for the period of incapacity |
|
(k) Section 475.25(1)(j), F.S. Rendered an opinion that the title to property sold is good or merchantable when not based on opinion of a licensed attorney or has failed to advise prospective. |
(k) $250 administrative fine |
(k) $5,000 administrative fine and revocation |
|
buyer to consult an attorney on the merchantability of title or to obtain title insurance. |
|
|
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(l) Section 475.25(1)(k), F.S. Has failed, if a broker, to deposit any money in an escrow account immediately upon receipt until. |
(l) $250 administrative fine |
(l) $5,000 administrative fine and revocation |
|
disbursement is properly authorized. Has failed, if a sales associate, to place any money to be escrowed with his registered employer. |
|
|
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(m) Section 475.25(1)(l), 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. |
(m) $250 administrative fine |
(m) $5,000 administrative fine and revocation |
|
(n) Section 475.25(1)(m), F.S. Obtained a license by fraud, misrepresentation or concealment. |
(n) $250 administrative fine |
(n) $5,000 administrative fine and revocation |
|
(o) Section 475.25(1)(n), F.S. Confined in jail, prison or mental institution; or through mental disease can no longer practice with skill and safety. |
(o) $250 administrative fine |
(o) $5,000 administrative fine and revocation |
|
(p) Section 475.25(1)(o), F.S. Guilty for the second time of misconduct in the practice of real estate that demonstrates incompetent, dishonest or negligent dealings with investors. |
(p) $250 administrative fine |
(p) $5,000 administrative fine and revocation |
|
(q) Section 475.25(1)(p), F.S. Failed to give Commission 30 day written notice after a guilty or nolo contendere plea or convicted of any felony. |
(q) $250 administrative fine |
(q) $5,000 administrative fine and revocation |
|
(r) Section 475.25(1)(r), F.S. Failed to follow the requirements of a written listing agreement. |
(r) $250 administrative fine |
(r) $5,000 administrative fine and revocation |
|
(s) Section 475.25(1)(s), F.S. Has had a registration suspended, revoked or otherwise acted against in any jurisdiction. |
(s) $250 administrative fine |
(s) $5,000 administrative fine and revocation |
|
(t) Section 475.25(1)(t), F.S. Violated the Uniform Standards of Professional Appraisal Practice as defined in Section 475.611, F.S. |
(t) $250 administrative fine |
(t) $5,000 administrative fine and revocation |
|
(u) Section 475.25(1)(u), F.S. Has failed, if a broker, to direct, control, or manage a broker associate or sales associate employed by such broker. |
(u) $250 administrative fine |
(u) $5,000 administrative fine and revocation |
|
(v) Section 475.25(1)(v), F.S. Has failed, if a broker, to review the brokerages trust accounting procedures in order to ensure compliance with this chapter. |
(v) $250 administrative fine |
(v) $5,000 administrative fine and revocation |
|
(w) Section 475.42(1)(a), F.S. Practice without a valid and current license. |
(w) $250 administrative fine |
(w) $5,000 administrative fine and revocation |
|
(x) Section 475.42(1)(b), F.S. Practicing beyond scope as a sales associate. |
(x) $250 administrative fine |
(x) $5,000 administrative fine and revocation |
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(y) Section 475.42(1)(c), F.S. Broker employs a sales associate who is not the holder of a valid and current license. |
(y) $250 administrative fine |
(y) $5,000 administrative fine and revocation |
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(z) Section 475.42(1)(d), F.S. A sales associate shall not collect any money in connection with any real estate brokerage transaction except in the name of the employer. |
(z) $250 administrative fine |
(z) $5,000 administrative fine and revocation |
|
(aa) Section 475.42(1)(e), F.S. A violation of any order or rule of the Commission |
(aa) $250 administrative fine |
(aa) $5,000 administrative fine and revocation |
|
(bb) Section 475.42(1)(g), F.S. Makes false affidavit or affirmation or false testimony before the Commission |
(bb) $250 administrative fine |
(bb) $5,000 administrative fine and revocation |
|
(cc) Section 475.42(1)(h), F.S. Fails to comply with subpoena |
(cc) $250 administrative fine |
(cc) $5,000 administrative fine and revocation |
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(dd) Section 475.42(1)(i), F.S. Obstructs or hinders the enforcement of Chapter 475, F.S. |
(dd) $250 administrative fine |
(dd) $5,000 administrative fine and revocation |
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(ee) Section 475.42(1)(j), F.S. No broker or sales associate shall place upon the public records any false, void or unauthorized information that affects the title or encumbers any real property. |
(ee) $250 administrative fine |
(ee) $5,000 administrative fine and revocation |
|
(ff) Section 475.42(1)(k), F.S. Failed to register trade name with the Commission. |
(ff) $250 administrative fine |
(ff) $5,000 administrative fine and revocation |
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(gg) Section 475.42(1)(l), F.S. No person shall knowingly conceal information relating to violations of Chapter 475, F.S. |
(gg) $250 administrative fine |
(gg) $5,000 administrative fine and revocation |
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(hh) Section 475.42(1)(m), F.S. Fails to have a current license as a broker or sales associate while listing or selling one or more timeshare periods per year. |
(hh) $250 administrative fine |
(hh) $5,000 administrative fine and revocation |
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(ii) Section 475.42(1)(n), F.S. Licensee fails to disclose all material aspects of the resale of timeshare period or timeshare plan and the rights and obligations of both buyer or seller. |
(ii) $250 administrative fine |
(ii) $5,000 administrative fine and revocation |
|
(jj) Section 475.42(1)(o), F.S. Publication of false or misleading information; promotion of sales, leases and rentals. |
(jj) $250 administrative fine |
(jj) $5,000 administrative fine and revocation |
|
(kk) Section 475.451, F.S. School teaching real estate practice fails to obtain a permit from the department and does not abide by regulations of Chapter 475, F.S., and rules adopted by the Commission. |
(kk) $250 administrative fine |
(kk) $5,000 administrative fine and revocation |
|
(ll) Section 475.453, F.S. Broker or sales associate participates in any rental information transaction that fails to follow the guidelines adopted by the Commission and Chapter 475, F.S. |
(ll) $250 administrative fine |
(ll) $5,000 administrative fine and revocation |
|
(mm) Section 475.5015, F.S. Failure to keep and make available to the department such books, accounts, and records as will enable the department to determine whether the broker is in compliance with the provisions of this chapter |
(mm) $250 administrative fine |
(mm) $5,000 administrative fine and revocation |
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(nn) Section 455.227(1)(s), F.S. Failing to comply with the educational course requirements for domestic violence |
(nn) $250 administrative fine |
(nn) $5,000 administrative fine and revocation |
|
(oo) Section 455.227(1)(t), F.S. Failing to report in writing to the board or, if there is no board, to the department within 30 days after the licensee is convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction. |
(oo) $250 administrative fine |
(oo) $5,000 administrative fine and revocation |
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(pp) Section 455.227(1)(u), F.S. Termination from a treatment program for impaired practitioners as described in s. 456.076 for failure to comply, without good cause, with the terms of the monitoring or treatment contract entered into by the licensee or failing to successfully complete a drug or alcohol treatment program |
(pp) $250 administrative fine |
(pp) $5,000 administrative fine and revocation |
(4)(a) When either the Petitioner or Respondent is able to demonstrate aggravating or mitigating circumstances to the Commission in a Section 120.57(2), F.S., hearing or to a Division of Administrative Hearings hearing officer in a Section 120.57(1), F.S., hearing by clear and convincing evidence, the Commission or hearing officer shall be entitled to deviate from the above guidelines in imposing or recommending discipline, respectively, upon a licensee.
Whenever the Petitioner or Respondent intends to introduce such evidence to the Commission 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 Commission.
(b) Aggravating or mitigating circumstances may include, but are not limited to, the following:
1. The degree of harm to the consumer or public.
2. The number of counts in the Administrative Complaint.
3. The disciplinary history of the licensee.
4. The status of the licensee at the time the offense was committed.
5. The degree of financial hardship incurred by a licensee as a result of the imposition of a fine or suspension of the license.
6. Violation of the provision of Chapter 475, F.S., wherein a letter of guidance as provided in Section 455.225(4), F.S., previously has been issued to the licensee.
Rulemaking Specific Authority 455.2273, 475.05 FS. Law Implemented 455.227, 455.2273, 475.22, 475.24, 475.25, 475.42, 475.421, 475.422, 475.452, 475.453, 475.455, 475.482 FS. History New 11-24-86, Amended 10-13-88, 4-20-89, 5-20-90, 12-29-91, 11-8-92, 6-28-93, Formerly 21V-24.001, Amended 11-16-93, 2-29-96, 12-30-97, 11-29-98, 1-18-00, 2-5-04, 1-30-06, 12-25-07,_________.
