Sales Associate Course. Violations of License Law; Penalties and Procedures

Transcription

1 Sales Associate Course Chapter Six Violations of License Law; Penalties and Procedures 1

2 License Law Violations Criminal Courts Civil Courts Administrative Agencies (FREC) 2

3 Criminal Penalties Administered by the Court Penalties are for violations of laws or rules In addition to FREC penalties 3

4 Criminal Penalties 2 nd Degree222 nd Misdemeanor 1 st Degree Misdemeanor 3 rd Degree Felony Up to $500 fine and/or imprisonment up to 60 days False Advertising - Collect monies not in employing brokers name Up to $1,000 fine And/or imprisonment not to exceed 1 year Rental Information violations Up to $5,000 fine and/or imprisonment up to 5 years Acting as a broker or sales associate without holding an active, current license.

5 Civil Penalties Administered by Court Penalties are in terms of Dollars (Judgment) In addition to FREC penalties 5

6 Administrative Penalties Administered by FREC Violation of FS 475 Violation of FREC Rules 61J2 Administrative penalty only $5,000 maximum fine 6

7 Fraudulent Activities Breach of trust Concealment Conspiracy Conversion Culpable negligence Failure to account False or misleading advertising Filing false documents Misrepresentation 7

8 Fraudulent Activities (cont.) Moral turpitude Rendering an opinion of title Promise to resell Properties with liens Using lotteries Exception: contests where no purchase is required may be permissible 8

9 Range of Penalties (FREC) Reprimand Administrative Maximum $5,000 per violation Probation Suspension Revocation Denial of license FREC cannot deny payment of commission or imprison 9

10 Range of Penalties (FREC) Revocation Most severe penalty that FREC can administer Permanent with two exceptions 1) license issued in error 2) fraudulent renewal or obtaining license by fraud Renewing without completing education requirement May reapply after 5 years 10

11 Range of Penalties (FREC) Denial of License Lack character or competence Would have resulted in suspension or revocation if licensed Did not pass State exam Didn t pay application fee Application denied Applicant notified Request a formal hearing to protest within 21 days 11

12 Division of Real Estate (Division) Intermediary Between FREC DBPR DRE Administrative functions Filing, record keeping, etc Investigations Inspects and audits real estate offices Prosecution of complaints Determines if investigation is necessary 12

13 Range of Penalties (Division) Conducts Office Inspections and Audits Notice of Noncompliance First time minor violation 15 days to correct Failure to correct- citation issued Citation requires payment of fine Citation not disputed within 30 days final order Final order 30 days to pay 13

14 Complaint Process DBPR Step Complaint Complaint is filed with DBPR/DRE Whether licensed or unlicensed person Must be Legally Sufficient - a violation of: Florida Statute FREC rule DBPR rule 14

15 Complaint Process DRE Step Investigation DBPR investigates through DRE Minor violation May issue notice of noncompliance or citation When complete a report is sent to FREC s Probable Cause Panel Investigator may not express opinions or recommendations 15

16 Complaint Process FREC Step Probable Cause 2 members of FREC (may use one former member if necessary) Operates similar to a grand jury Possible outcomes are Dismiss the Case Letter of Guidance Formal (Administrative) Complaint 16

17 Complaint Process FREC Step Administrative Complaint An Administrative (Formal) Complaint is an outline of the charges Must be answered within 21 days or the license is usually Revoked Respondent files Election of Rights Form No dispute of facts Informal Hearing Stipulation Negotiated settlement Dispute of facts Formal Hearing 17

18 Complaint Process FREC Step Formal/Informal Hearing INFORMAL - FREC Probable Cause Panel Members are excluded Issue resolved and penalty assessed unless there is Disagreement over material facts 18

19 Complaint Process DOAH then FREC Step Formal/Informal Hearing (cont.) Formal Conducted similar to court by an Administrative Law Judge Member of the Florida Bar Association at least 5 years May issue Subpoenas, Swear Witnesses and Take Testimony Issues a Recommended Order to all parties involved 19

20 Complaint Process FREC Step Final Order Members of FREC not on the Probable Cause Panel issue a Final Order which may Accept, Reject or modify the recommended order Take effect in 30 days Summary Suspension may be issued by the Secretary of DBPR in situations posing an immediate danger to the public 20

21 Complaint Process COURT Step Judicial Review (Appeal) A Judicial Review (Appeal) may be filed with the District Court of Appeal within 30 days An appeal does not stay enforcement (stop enforcement) Writ of Supersedeas (Stay of enforcement) suspends enforcement of the Final Order pending appeal Writ of Mandamus Court order to restore the licensee s privileges 21

22 Licensee Must Report Convictions Criminal Self-Reporting Document If convicted Found guilty Entered plea of nolo contendere Plead guilty Regardless of Adjudication Must report to the DBPR within 30 days 22

23 Real Estate Recovery Fund Purpose Reimburse members of the public for Monetary (Compensatory) damages As a result of an act by licensee. Not punitive damages Does not include legal fees or court costs. 23

24 Real Estate Recovery Fund In the case of licensee wrong doing The Claimant must First win a Civil Judgment against a licensee in a Florida court Collect as much as possible from licensee Make a claim for the unsatisfied portion up to a maximum of $ 50,000 for a single transaction $ 150,000 for multiple transactions against one licensee Assign the judgment to FREC 24

25 Real Estate Recovery Fund Payment from the fund for wrong doing results Immediate Suspension until repaid with interest, Except, if suspension would conflict with Federal Bankruptcy Law Only violation when license is automatically suspended 25

26 Real Estate Recovery Fund Collection of fees for the fund are stopped when it reaches $1,000,000 and not resumed unless fund drops below $500,000 Broker - $3.50 per year ($7.00 with renewal) Sales associate - $1.50 per year ($3.00 with renewal) 26

27 Real Estate Recovery Fund Persons not covered Judgment debtor or spouse Licensee unless buyer or seller Payment to licensee Acting as buyer or seller Suffered monetary damages as a result of a licensee in the transaction 27

28 Real Estate Recovery Fund Reimburse a broker for damages Resulting from complying with an Escrow Disbursement Order (EDO) May include legal fees or court costs for broker or if ordered for the prevailing party. 28