The purpose of this amendment is to implement the changes to Section 475.25(1), F.S., which now authorizes the Florida Real Estate Commission to impose administrative fines not to exceed $5,000.00 for each count or separate offense and the additions ...

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Florida Real Estate Commission

RULE NO: RULE TITLE
61J2-24.001: Disciplinary Guidelines
PURPOSE AND EFFECT: The purpose of this amendment is to implement the changes to Section 475.25(1), F.S., which now authorizes the Florida Real Estate Commission to impose administrative fines not to exceed $5,000.00 for each count or separate offense and the additions of Section 475.25(1)(u) and (v), F.S. subsections 61J2-24.001(3), (11), F.A.C., is being repealed because Section 475.452, F.S., has been repealed.
SUMMARY: The rule amendments are necessary to reflect the changes made to Sections 475.25(1) and 475.452, F.S.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
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, 475.421, 475.422, 475.452, 475.453, 475.455, 475.482 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, Suite N801, Orlando, Florida 32801

THE FULL TEXT OF THE PROPOSED RULE IS:

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 Chapters 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.

 

VIOLATIONS	RECOMMENDED RANGE OF PENALTY
(a) Section 475.22, F.S. Broker fails to maintain office and sign at entrance of office.	(a) The usual action of the Commission shall be to impose a penalty up to a 90 day suspension of up to 90 days.
(b) Section 475.24, F.S. Failure to register a branch office.	(b) The usual action of the Commission shall be to impose a suspension of up to 90 days penalty for up to 90 day.
(c) Section 475.25(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.   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.	(c) In the case of fraud, misrepresentation and dishonest dealing, the usual action of the Commission shall be to impose a penalty of revocation.   In the case of concealment, false promises and false pretenses, the usual action of the Commission shall be to impose a penalty of a 3 to 5 year suspension and an administrative fine not to exceed $5,000 of $1,000.
	In the case of culpable negligence and breach of trust, the usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and penalty from a $1,000 fine to up to a 1 year suspension.
	In the case of violating a duty imposed by law or a listing agreement; aided, assisted or conspired; or formed an intent, design or scheme to engage in such misconduct, the usual action of the Commission shall be to impose an administrative fine penalty not to exceed $5,000 and up from a $1,000 fine to a 5 year suspension.
(d) Section 475.25(1)(c), F.S. False, deceptive or misleading advertising.	(d) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and up to a $1,000 to a 1 year suspension.
(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) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and up of $1,000 to a 5 year suspension.
(f) Section 475.25(1)(e), F.S. Violated any rule or order or provision under Chapters 475 and 455, F.S.	(f) The usual action of the Commission shall be to impose a penalty from an 8 year suspension to revocation and an administrative fine not to exceed $5,000 of $1,000.
(g) Section 475.25(1)(f), F.S. Convicted or found guilty of a crime related to real estate or involves moral turpitude or fraudulent or dishonest dealing.	(g) The usual action of the Commission shall be to impose a penalty from a 7 year suspension to revocation and an administrative fine not to exceed $5,000 of $1,000.
(h) Section 475.25(1)(g), F.S. Has license disciplined or acted against or an application denied by another jurisdiction.	(h) 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 not to exceed $5,000 of $1,000.
(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) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and up of $1,000 to a 5 year suspension.
(j) Section 475.25(1)(i), F.S. Impairment by drunkenness, or use of drugs or temporary mental derangement.	(j) The usual action of the Commission shall be to impose a penalty of 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 buyer to consult an attorney on the merchantability of title or to obtain title insurance.	(k) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 $1,000 to and up to a 6 month suspension.
(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 disbursement is properly authorized. Has failed, if a sales associate, to place any money to be escrowed with his registered employer.	(l) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and a minimum of a 90 day suspension and $1,000 fine up to revocation.
(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) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and $1,000 to up to a 2 year suspension
(n) Section 475.25(1)(m), F.S. Obtained a license by fraud, misrepresentation or concealment.	(n) In the case of a licensee who renews the license without having complied with Rule 61J2-3.009, F.A.C., and the act is discovered by the DBPR, the usual action of the Commission shall be to impose a penalty of revocation.   In the case of a licensee who renews the license without having complied with Rule 61J2-3.009, F.A.C., and the licensee brings the matter to the attention of the DBPR, the usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 a penalty of a $1,000 administrative fine In all other cases, the usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and a penalty of revocation and of $1,000.
(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) The usual action of the Commission shall be to impose a penalty of 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) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 of $500 and a 1 year suspension to 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) The usual action of the Commission shall be to impose a penalty of a 5 year suspension to revocation
(r) Section 475.25(1)(q), F.S. Licensee has failed to give the Transaction Broker Notice or Single Agent Notice at the requisite period of time under the provisions of Section 475.278, F.S.; failed to properly secure the Consent to Transition to Transaction Broker or Designated Sales Associate forms as required in Section 475.2755 or 475.278, F.S.; failed to act in a manner as prescribed in Section 475.2755 or 475.278, F.S.	(r) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and up of $1,000 to a 5 year suspension.
(s) Section 475.25(1)(r), F.S. Failed to follow the requirements of a written listing agreement.	(s) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and up of $1,000 to a 3 year suspension.
(t) Section 475.25(1)(s), F.S. Has had a registration suspended, revoked or otherwise acted against in any jurisdiction.	(t) The usual action of the Commission shall be to impose a penalty from a 6 year suspension to revocation and an administrative fine not to exceed $5,000 of $1,000.
(u) Section 475.25(1)(t), F.S. Violated the Uniform Standards of Professional Appraisal      Practice as defined in Section 475.611, F.S.	(u) The usual action of the Commission shall be to impose a penalty of a 5 year suspension to revocation.
	(u) The usual action of the Commission shall be to impose a penalty of a 5 year suspension to revocation.
(v) 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.	(v) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000, and, up to a 1 year suspension to revocation.
(w) Section 475.25(1)(v), F.S. Has failed, if a broker, to review the brokerage’s trust accounting procedures in order to ensure compliance with this chapter.	(w) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000, and a 1 year suspension to revocation.
(x)(v)   Section 475.25(2), F.S. License issued by error of the Commission.	(x)(v) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000, and a 1 year suspension to revocation.
(y)(w) Section 475.42(1)(a), F.S. Practice without a valid and current license.	(v)(w) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and a penalty of a 3 year suspension to revocation.
(z)(x)  Section 475.42(1)(b), F.S. Practicing beyond scope as a sales associate.	(z)(x)  The usual action of the Commission shall be to impose a penalty of a 3 year suspension to revocation.
(aa)(y) Section 475.42(1)(c), F.S. Broker employs a sales associate who is not the holder of a valid and current license.	(aa)(y)  The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed  $ 5,000  of $1,000 and a 90 day suspension to a 2 year suspension.
(bb)(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.	(bb)(z) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed  $ 5,000 and up to a 3 year suspension.
(cc)(aa)  Section 475.42(1)(e), F.S. A violation of any order or rule of the Commission.	(cc)(aa)  The usual action of the Commission shall be to impose a penalty of an 8 year suspension to revocation and an administrative fine not to exceed $5,000 of $ 1,000.
(dd)(bb) Section 475.42(1)(g), F.S. Makes false affidavit or affirmation or false testimony before the Commission.	(dd)(bb) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed  $5,000 and up of $ 1,000 to a 3 year suspension.
(ee)(cc)   Section 475.42(1)(h), F.S. Fails to comply with subpoena.	(ee)(cc)  The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed  $5,000 of $1,000 and a 6 month suspension to a 5 year suspension.
(ff)(dd) Section 475.42(1)(i), F.S. Obstructs or hinders the enforcement of Chapter 475, F.S.	(ff)(dd)  The usual action of the Commission shall be to impose a penalty of revocation.
(gg)(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.	(gg)(ee)  The usual action of the Commission shall be to impose a penalty of a 5 year suspension to revocation.
(hh)(ff) Section 475.42(1)(k), F.S. Failed to register trade name with the Commission.	(hh)(ff)  The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed  $5,000 and up of $ 1,000 to a 6 month suspension.
(ii)(gg) Section 475.42(1)(l), F.S. No person shall knowingly conceal information relating to violations of Chapter 475, F.S.	(ii)(gg) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed  $5,000 and up of $1,000 to a 3 year suspension.
(jj)(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.	(jj)(hh)  The usual action of the Commission shall be to impose a penalty of revocation.
(kk)(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.	(kk)(ii)  The usual action of the Commission shall be to impose a penalty of revocation.
(ll)(jj)  Section 475.42(1)(o), F.S. Publication of false or misleading information; promotion of sales, leases and rentals.	(ll)(jj) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and up of $1,000  to  a 1 year suspension.
(mm)(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.	(mm)(kk) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and up of $1,000 to a 6 month suspension.
(ll) Section 475.452, F.S. A broker contracts for or collects an advance fee for the listing of real property and fails to properly deposit 75 percent in a trust account according to Chapter 475, F.S., and rules adopted by the Commission.	(ll) The usual action of the Commission shall be to impose a penalty of an administrative fine of $1,000 to a 6 month suspension.
(nn)(mm)  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.	(nn)(mm) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 and up of $1,000 to a 3 year suspension.
(oo)(nn) Rule 61J2-10.039, F.A.C., Section 475.25(1)(c), F.S. Failure to produce records within 5 business days from receipt of request for inspection or audit or to maintain records as required.	(oo)(nn) The usual action of the Commission shall be to impose a penalty of an administrative fine not to exceed $5,000 of $1,000 and up to a 3 month suspension.

(4) No change.

Specific Authority 455.2273, 475.05  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,___________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Florida Real Estate Commission
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: Florida Real Estate Commission
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 26, 2006
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: November 16, 2006