To eliminate the fine and penalty for a license issued by mistake and to update citations.

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Florida Real Estate Commission

RULE NO: RULE TITLE
61J2-24.001: Disciplinary Guidelines
PURPOSE AND EFFECT: To eliminate the fine and penalty for a license issued by mistake and to update citations.
SUMMARY: This rule addresses elimination of the fine and penalty for a license issued by mistake and updates citations.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared. The Board determined the proposed rules 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, 475.453 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:

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.

 

VIOLATIONS	RECOMMENDED RANGE OF PENALTY (a) The usual action of the Commission shall be to impose a suspension of up to 90 days.   (b) The usual action of the Commission shall be to impose a suspension of up to 90 days. (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. 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 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 not to exceed $5,000 and up to a 5 year suspension. (d) 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 (e) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 5 year suspension. (f) The usual action of the Commission shall be to impose an 8 year suspension to revocation and an administrative fine not to exceed $5,000. (g) The usual action of the Commission shall be to impose a 7 year suspension to revocation and an administrative finenot to exceed $5,000.   (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. (i) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 5 year suspension. (j) The usual action of the Commission shall be to impose a penalty of suspension for the period of incapacity. (k) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 6 month suspension.       (l) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and a 90 day suspension to revocation.       (m) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 2 year suspension.     (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 attention of the DBPR, the usual action of the Commission shall be to impose an administrative fine not to exceed $5,000. In all other cases, the usual action of the Commission shall be to impose a penalty of revocation and an administrative fine not to exceed $5,000 and a penalty of revocation. (o) The usual action of the Commission shall be to impose a penalty of revocation     (p) The usual action of the Commission shall be to impose an administrative fine of not to exceed $5,000 and a 1 year suspension to revocation.   (q) The usual action of the Commission shall be to impose a 5 year suspension to revocation.     (r) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 5 year suspension.             (s) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 3 year suspension. (t) The usual action of the Commission shall be to impose a 6 year suspension to revocation and an administrative fine not to exceed $5,000. (u) The usual action of the Commission shall be to impose a 5 year suspension to revocation.   (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) 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) 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. (x)(y) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and a 3 year suspension to revocation. (y)(z) The usual action of the Commission shall be to impose a 3 year suspension to revocation. (z)(aa) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and a 90 day to a 2 year suspension. (aa)(bb) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 3 year suspension.   (bb)(cc) The usual action of the Commission shall be to impose an 8 year suspension to revocation and an administrative fine not to exceed $5,000. (cc)(dd) The usual action of the Commission shall be to impose of an administrative fine not exceed $5,000 and up to a 3 year suspension (dd)(ee) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and a 6 month to a 5 year suspension. (ee)(ff) The usual action of the Commission shall be to impose revocation.   (ff)(gg) The usual action of the Commission shall be to impose a 5 year suspension to revocation.       (gg)(hh) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 6 month suspension (hh)(ii) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 3 year suspension (ii)(jj) The usual action of the Commission shall be to impose revocation     (jj)(kk) The usual action of the Commission shall be to impose revocation     (kk)(ll) 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 (ll)(mm) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 6 month suspension     (mm)(nn) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 3 year suspension     (nn)(oo) The usual action of the Commission shall be to impose an administrative fine not to exceed $5,000 and up to a 3 month suspension.
(a) Section 475.22, F.S. Broker fails to maintain office and sign at entrance of office
(b) Section 475.24, F.S. Failure to register a branch office
(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
(d) Section 475.25(1)(c), F.S.
False, deceptive or misleading advertising
(e) Section 475.25(1)(d), F.S.
Failed to account or deliver to any person as required by agreement or law, escrowed property
(f) Section 475.25(1)(e), F.S.
Violated any rule or order or provision under
Chapters 475 and 455, F.S.
(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.
(h) Section 475.25(1)(g), F.S.
Has license disciplined or acted against or an
application denied by another jurisdiction
(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.
(j) Section 475.25(1)(i), F.S.
Impairment by drunkenness, or use of drugs or
temporary mental derangement
(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
(l) Section 465.25(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
(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.
(n) Section 475.25(1)(m), F.S.
Obtained a license by fraud, misrepresentation or
concealment
(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
(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
(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
(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.
(s) Section 475.25(1)(r), F.S.
Failed to follow the requirements of a written listing
agreement
(t) Section 475.25(1)(s), F.S.
Has had a registration suspended, revoked or otherwise acted against in any jurisdiction.
(u) Section 475.25(1)(t), F.S.
Violated the Uniform Standards of Professional Appraisal Practice as defined in Section 475.611, F.S.
(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.
(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.
(x) Section 475.25(2), F.S.
License issued by error of the Commission
(x)(y) Section 475.42(1)(a), F.S.
Practice without a valid and current license
(y)(z) Section 475.42(1)(b), F.S.
Practicing beyond scope as a sales associate
(z)(aa) Section 475.42(1)(c), F.S.
Broker employs a sales associate who is not the holder
of a valid and current license
(aa)(bb) 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)(cc) Section 475.42(1)(e), F.S.
A violation of any order or rule of the Commission
(cc)(dd) Section 475.42(1)(g), F.S.
Makes false affidavit or affirmation or false testimony before the Commission.
(dd)(ee) Section 475.42(1)(h), F.S.
Fails to comply with subpoena
(ee)(ff) Section 475.42(1)(i), F.S.
Obstructs or hinders the enforcement of Chapter
475, F.S.
(ff)(gg) 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)(hh) Section 475.42(1)(k), F.S.
Failed to register trade name with the Commission
(hh)(ii) Section 475.42(1)(l), F.S.
No person shall knowingly conceal information
relating to violations of Chapter 475, F.S.
(ii)(jj) 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)(kk) 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)(ll) Section 475.42(1)(o), F.S.
Publication of false or misleading information;
promotion of sales, leases and rentals
(ll)(mm) 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)(nn) 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)(oo) Section 475 5015 475.25(1)(c), 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.

 

(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 FS, wherein a letter of guidance as provided in Section 455.225(4)(3), 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,__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Florida Real Estate Commission

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

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 15, 2008

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: February 1, 2008