Transcript First- You may be an attorney, friend, or relative, speaking on the behalf of a RESPONDENT… Second - You may be here.

First- You may be an attorney, friend, or relative, speaking
on the behalf of a RESPONDENT…
Second - You may be here as part of a DISCIPLINARY
requirement. You must abide by all rules and conditions set
forth in Rule 61J2-24.006…
Third - You may be a Prospective Real Estate Sales Associate
or Broker and the FDLE or FBI report has revealed some
illegal or unethical behavior in your past…
Lastly - You may be here to gain a better understanding of
Florida’s Real Estate Profession and to contribute to this
process. Thank you for your efforts…
“If you are sitting in the audience
today you are probably here for one of
the four following reasons…”
The Administrative Process
Recovery Fund Claims
and Legislative Update
Andrew R. Fier
This presentation is designed to provide a general overview of the administrative
process. Legal advice is not being provided. If you have any legal questions or
concerns, please consult your own attorney
The images presented are not the presenter’s own.
Andrew Rubin Fier
Chief Attorney, Division of Real Estate
Regulate over 300,000 licensees
13 Attorneys in Division of Real Estate
FREC, FREAB, ULA
Administrative Prosecutions
Escrow Disbursement Orders
Recovery Fund Claims
Office of General Counsel
Division of Real Estate
1) Complaints and Investigative Reports
2) Confidentiality
3) Legal Review and Discretion
4) Probable Cause
5) Election of Rights
6) Hearings
7) Final Orders
8) Recovery Fund Claims
9) Legislative Update
Agenda
Chapter 455
Pre-Probable Cause
Sample Complaint
Requirements:
Section 455.225(1), Florida Statutes
1)
2)
Must be in writing and signed
Complaint must be legally sufficient
a) Contains the ultimate facts
b) That show a violation of 475, 455, or 61J1 or
61J2, Florida Administrative Code
Complaints and
Investigative Reports
Section 455.225(11), Florida Statutes
A privilege against civil liability is hereby
granted to any complainant or any witness
with regard to information furnished with
respect to any investigation or proceeding
pursuant to this section, unless the
complainant or witness acted in bad faith or
with malice in providing such information.
Privilege against Civil Liability
Preventing a Chilling Effect
Investigations 455.225(2), Florida Statutes

Subject is provided a copy of the complaint

Subject is provided with an opportunity to
provide a response within 20 days

Investigator interviews witnesses, obtains
documents, and drafts an investigative report
Complaints and
Investigative Reports
Sample
Investigative Report
The complaint and all information obtained
pursuant
to
the
investigation
by
the
department are confidential and exempt from
s. 119.07(1) until 10 days after probable cause
has been found to exist by the probable cause
panel or by the department, or until the
regulated professional or subject of the
investigation waives his or her privilege of
confidentiality,
whichever
occurs
first.
However, this exemption does not apply to
actions against unlicensed persons pursuant to
s. 455.228 or the applicable practice act.
Pre-Probable Cause
Confidentiality – 455.225(10)
(1) No officer, employee, or person under contract with the
department, or any board therein, or any subject of an
investigation shall convey knowledge or information to any
person who is not lawfully entitled to such knowledge or
information about any public meeting or public record, which
at the time such knowledge or information is conveyed is
exempt from the provisions of s. 119.01, s.119.07(1), or
s. 286.011
(2) Any person who willfully violates any provision of this
section is guilty of a misdemeanor of the first degree,
punishable as provided in s. 775.082 or s. 775.083, and may
be subject to discipline pursuant to s. 455.227, and, if
applicable, shall be removed from office, employment, or the
contractual relationship.
Pre-Probable Cause Confidentiality
Disclosure is a Crime - 455.232
Why do complaints and investigations
remain confidential and exempt from
Chapter 119, public record requests,
absent a finding of probable cause?
Opportunity for competitive abuse
Loss of reputation without due process
Confidentiality - Policy
“A probable cause panel shall determine if
probable cause exists…” 61J2-20.009
1) Administrative Complaint (possible ESO)
2) Closing Order
3) Closing Order with Letter of Guidance
455.225(4)
Legal Review
Closing Orders
& Letters of Guidance
1)
Stolen or missing escrow funds
2)
Failing to place funds into an escrow account
3)
Convicted of crime of moral turpitude
mortgage fraud, money laundering, drug trafficking
4)
Sales associate operating as broker
5)
Property management disputes
smoke, animals, repairs
6)
Failure to timely report misdemeanor convictions
DUI (first offense), marijuana (personal use)
7)
Personal Disputes
divorce, competition, etc.
including property management
Prosecutorial Discretion
Violations and Considerations
Administrative Complaints
Administrative Complaints
Administrative Complaints
Administrative Complaints
[The panel] must have a solid though not necessarily
correct basis in fact and law for [probable cause].
To sustain a probable cause determination there must
be some evidence considered by the panel that would
reasonably indicate that the violation had indeed
occurred. The evidence, however, need not be as
compelling as that which must be presented at the
formal administrative hearing on the charges…
Fish v Department of Health Bd of Dentistry
Probable Cause
Standard
Chapter 120
After Probable Cause
Clear and convincing evidence “requires more proof than a
‘preponderance of the evidence’ but less than ‘beyond and to the
exclusion of a reasonable doubt.’” In re Graziano, 696 So. 2d 744
Clear and convincing evidence requires that the evidence must be
found to be credible; the facts to which the witnesses testify must
be distinctly remembered; the testimony must be precise and
explicit and the witnesses must be lacking in confusion as to the
facts in issue. The evidence must be of such weight that it produces
in the mind of the trier of fact a firm belief or conviction, without
hesitancy, as to the truth of the allegations sought to be
established. Slomowitz v. Walker, 429 So. 2d 797
State’s Burden
Clear and Convincing Evidence
Election of Rights
(1) Each licensee of the department is solely responsible for notifying the department in
writing of the licensee’s current mailing address, e-mail address, and place of practice, as
defined by rule of the board or the department when there is no board. A licensee’s failure to
notify the department of a change of address constitutes a violation of this section, and the
licensee may be disciplined by the board or the department when there is no board.
(2) Notwithstanding any other provision of law, service by regular mail or e-mail to a
licensee’s last known mailing address or e-mail address of record with the department
constitutes adequate and sufficient notice to the licensee for any official communication to the
licensee by the board or the department except when other service is required pursuant to s.
455.225.
(3)(a) Notwithstanding any provision of law, when an administrative complaint is served on a
licensee of the department, the department shall provide service by regular mail to the
licensee’s last known address of record, by certified mail to the last known address of record,
and, if possible, by e-mail.
(b) If service, as provided in paragraph (a), does not provide the department with proof of
service, the department shall call the last known telephone number of record and cause a
short, plain notice to the licensee to be posted on the front page of the department’s website
and shall send notice via e-mail to all newspapers of general circulation and all news
departments of broadcast network affiliates in the county of the licensee’s last known address
of record.
Address of Record
455.275
28-106.111, F.A.C. (DOAH Rule)
(4) Any person who receives written notice
of an agency decision and who fails to file a
written request for a hearing within 21 days
waives the right to request a hearing on
such matters. This provision does not
eliminate the availability of equitable tolling
as a defense.
Waiver
Hearing
Mitigation hearing when there are no disputed
issues of material fact.
Allows a Respondent to explain his side of the
story.
Occurs when the Administrative Complaint is not,
or cannot, be disputed.
Pros: Efficient, Inexpensive, Informal (not a trial)
Cons: No dispute of fact, Informal(not a trial)
Informal Hearing
No Issues of Material Fact
Example: Criminal conviction for mortgage fraud
475.25(1)(f) Convicted of crime of moral turpitude or fraud
“When a party seeks a formal hearing in accordance
with section 120.57(1), an agency may conclude that
no dispute of material fact has been demonstrated,
refuse to refer the matter to DOAH, andproceed
informally.
If the agency's decision regarding the need for formal
proceedings was incorrect, the error can be corrected
on appeal from final order”
Nicolitz v. Board of Opticianry 609 So.2d 92
“When the Administrative
Complaint cannot be disputed”
Resolve disputed issues of material fact
1) Discovery (Admissions, Production, Deposition, etc.)
2) Prehearing Stipulation
3) Evidentiary hearing (Trial)
Direct and Cross Examination, Hearsay,
Evidence, Rules of Civil Procedure
4) Proposed Recommended Order (PRO)
5) ALJ’s Recommended Order
6) Exceptions
7) Agency Final Order
Formal
Hearings
Generally:
Reduces final disposition to writing - win or lose
Generally effective 30 days upon filing
May be appealed to District Court of Appeal
Failure to timely comply with Final Order will
result in a new violation – restarting the
disciplinary process (New AC, EOR, hearing)
Final Order
Florida Real Estate
Recovery Fund
Claims
Overview
475.482, Florida Statutes
Licensee:
1)
Was holder of a current, valid real estate license
2)
Was neither a buyer, seller, landlord, tenant, or
officer in transaction
3)
Was acting solely in the capacity of a real estate
licensee
4)
Violated 475.25 or 475.42
Recovery Fund Claims
475.483, Florida Statutes
Claimant:
1)
Received civil judgment in Florida against licensee (not
brokerage)
2)
Cause of action based on real estate transaction (proximate
cause)
3)
At time civil action was commenced, written notice provided to
Commission by certified mail
4)
Claim for recovery is made within 2 years of act giving rise to
claim or 2 years from the time act should have been discovered
5)
Has received a writ of execution upon judgment
6)
Has been unable to satisfy judgment after diligent search
Recovery Fund Claims
475.484, Florida Statutes
Maximum payment: $50,000
Compensatory: Does not include attorney’s fees, treble
damages, costs. Damages must be liquidated – defined
in judgment or clearly ascertainable by the pleadings
Payments against any licensee may not exceed, in the
aggregate, $150,000
Licensee is suspended upon payment and unsuspended
upon repayment
Recovery Fund Claims
Claimant has obtained:
$20,383 default judgment against licensee
Judgment includes:
$5,000 escrow deposit (liquidated damages)
$15,383 punitive damages, attorney’s fees,
and costs
Maximum recovery? $5,000
Recovery Fund Claim
Case Study
Florida Real Estate
Commission
Legislative Update
Senate Bill 608 (2015)
Qualifications for practice
475.17(6) The postlicensure education
requirements of this section, and the
education course requirements for one to
become initially licensed, do not apply to
any applicant or licensee who has received
a 4-year degree, or higher, in real estate
from an accredited institution of higher
education.
Legislative Update
Senate Bill 608 (2015)
Inactive status
475.183(4) The commission may reinstate the license
of an individual whose license has become void if the
commission determines that the individual failed to
comply because of illness or economic hardship, as
defined by rule. The individual must apply to the
commission for reinstatement within 6 months after the
date that the license becomes void. Such individual
must meet all continuing education requirements
prescribed by law, pay appropriate licensing fees, and
otherwise be eligible or renewal of licensure under this
section.
Legislative Update
Senate Bill 608 (2015)
475.15 Registration and Licensing
…The commission shall adopt rules that
allow a brokerage to register a broker on a
temporary, emergency basis if a sole broker
of a brokerage dies or is unexpectedly
unable to remain a broker.
Legislative Update
Senate Bill 608 (2015)
Florida Real Estate
Appraisal Board
Legislative Update
Senate Bill 608 (2015)
475.629 Retention of records.
An appraiser registered, licensed, or
certified under this part or an appraisal
management company registered under
this part shall prepare and retain a work file
for each appraisal, appraisal review,
appraisal consulting assignment.
Legislative Update
Senate Bill 608 (2015)
475.629 Retention of records (Work File Documents)
The work file must contain:
1) Original or true copies of any contracts engaging the
appraiser’s or appraisal management company’s services
2)Appraisal reports
3) Supporting data assembled and formulated by the
appraiser or company in preparing appraisal reports or
engaging in appraisal management services
4) All other data, information, and documentation as
established by rule of the board
Legislative Update
Senate Bill 608 (2015)
475.629 Retention of records (Order File)
An appraisal management company registered
under this part shall prepare and retain an
order file for each appraisal, appraisal review,
or appraisal consulting assignment. The work
file and the order file shall be retained, for 5
years or the period specified in the Uniform
Standards of Professional Appraisal Practice,
whichever is greater.
Legislative Update
Senate Bill 608 (2015)
475.629 Retention of records (Order File Documents)
The order file must contain:
1) Original or true copies of any contracts engaging the
appraiser’s services,
2) The appraisal reports
3) Any engagement materials or instructions from the
client
4) All other documents required by the standards for the
development or communication of a real estate appraisal
as established by rule of the board
Legislative Update
Senate Bill 608 (2015)
475.6295 Authority to inspect
Duly authorized agents and employees of the
department shall have the power to inspect in
a lawful manner at all reasonable hours any
appraisal management company, appraiser or
appraisal office certified, registered, or licensed
under this chapter, for the purpose of
determining if any of the provisions of this
chapter, chapter 455, or any rule promulgated
under authority of either chapter is being
violated.
Legislative Update
Senate Bill 608 (2015)
61J2-2.032 Informal Hearings
When an applicant for licensure as a real estate sales
associate or broker requests a Section 120.57(2), F.S.,
informal hearing before the Commission, in addition to
other requirements of law, before the applicant shall be
considered for approval to sit for the real estate
examination, the applicant must submit at least 3
letters of reference from persons who know of the
applicant’s honesty, truthfulness, trustworthiness, good
character and good reputation for fair dealing as
required in Section 475.17(1)(a), F.S. At least 2 of the
letters must be from individuals not related to the
applicant.
Final Note for
Applicants and Applications
Questions?
Contact: [email protected]
Questions
and Contact