Disciplinary Procedure
DISCIPLINARY PROCEDURE
The complaint
DBPR investigation
Probable-cause panel
Formal/administrative complaint
Stipulation
Voluntary relinquishment
The complaint Any person who believes a licensee, applicant, or unlicensed person has violated Florida real estate license law may file a complaint with the Department of Business and Professional Regulation (DBPR). The complaint must be in writing, signed by the complainant, and legally sufficient. That is, the complaint must include ultimate facts that show a violation of Florida statutes and/or FREC administrative rules. The DBPR may require supporting documentation to determine legal sufficiency.
An administrative complaint alleging a violation by a broker, broker associate, or sales associate must be filed within 5 years after the violation occurred or after the violation was discovered or should have been discovered. If the complaint is filed with the DBPR or FREC against a sales associate, the associate’s employing broker will be notified of the complaint in writing. However, the notice will not be sent until 10 days after probable cause has been found by the Probable Cause Panel or until the licensee waives his or her confidentiality privilege, whichever occurs first.
Investigate if warranted. If the DBPR determines the allegations would constitute a violation, the Department will initiate an investigation and send a copy of the complaint to the violating licensee or the licensee’s attorney. The DBPR will also notify the complainant of whether probable cause was found and the status of the investigation and administrative proceedings. If the complaint is the result of a criminal act by the offender, the Department is not required to notify anyone of the investigation. Further, if those conducting the investigation agree in writing that notifications would adversely affect the investigation, notification may be withheld.
If the complaint is for a first-time minor violation, the DBPR may simply issue a notice of noncompliance to the offender. However, if the DBPR believes the public is in immediate danger from the actions of the offender, the Department’s secretary may issue a summary suspension. Section 6: Violations of License Law, Penalties and Procedures to Real Estate 117
DBPR investigation The Department of Business and Professional Regulation (DBPR) may investigate the following:
an anonymous complaint, as long as the complaint is in writing and legally sufficient and if the alleged violation is substantial and the department believes the allegations are true
a complaint from a confidential informant, as long as the complaint is in writing and legally sufficient and if the alleged violation is substantial and the department believes the allegations are true
a complaint that the original complainant withdraws or tries to dissuade the DBPR from investigating or prosecuting
the DBPR or FREC’s own reasonable belief that a licensee or group of licensees has violated a Florida statute or rule
After the Department has initiated an investigation and notified the violating licensee or the licensee’s attorney, the licensee has 20 days to submit a written response. The response is forwarded to the Probable Cause Panel for consideration.
When the Department completes the investigation, it will submit an investigative report to the Panel, complete with the investigative findings and recommendations for probable cause. However, if the Department determines a lack of sufficient evidence to support the allegations, it may submit a report to the Panel, dismiss the case, and notify the subject of the complaint.
Probable-cause
panel Based on the volume of cases to be handled, the FREC may provide multiple probable cause panels. Each panel will consist of at least two members who meet the following requirements:
one or more may be former Commission members
one must be a current Commission member
one must be a former or current consumer Commission member
one must be a former or current professional Commission member who holds an active valid real estate license
Members of the Panel serve varying terms or repetition of service as determined by the FREC.
The sole purpose of the Panel is to determine whether probable cause exists for any complaint investigated by the DBPR. The determination is made by a majority vote of Panel members. To make an informed determination, the Panel may request additional investigative information from the DBPR within 15 days of receiving a case’s investigative report. The Panel must then make its determination of probable cause within 30 days of receiving a final investigative report. The Department’s secretary may provide an extension to the 15 and 30-day timelines.
If the Panel finds there is no probable cause, it may dismiss the case with or 118 Principles of Real Estate Practice in Florida
without a Letter of Guidance suggesting what action the subject of the complaint should take. If the Panel does not determine probable cause or issue a letter of guidance within the 30 days, the DBPR will make a determination one way or the other within the next 10 days. If either the Panel or the DBPR finds probable cause, a formal complaint will be filed against the offender, and his or her employing broker and the complainant will be notified.
Probable cause proceedings are confidential and not open to the public. Nor are they open to FREC members who are not members of the Panel, because those members need to remain objective in case they are to participate in an informal hearing on the matter.
Formal/
administrative
complaint The filing of a formal complaint will result in the complaint being prosecuted by the DBPR. However, if the Department believes the Panel was faulty or careless in finding probable cause, the Department may decide not to prosecute.
The formal complaint will be sent to the offender either by regular mail, certified mail, or email. It is the responsibility of the licensee to ensure that the Department has a record of the licensee’s current mailing address, email address, and place of practice. The formal complaint lists the charges and provides the offender with an Election of Rights, which is a choice of which way the offender wishes to respond. The offender may choose
not to dispute the allegations of fact and to request an informal hearing
to dispute the allegations of fact and to request a formal hearing, or
not to dispute the allegations of fact and to waive the right to be heard
The offending licensee must submit his or her Election of Rights choice within 21 days from the date it was received and be given at least a 14-day notice of a hearing date. Failing to respond within the required timeframe results in the licensee waiving the right to choose. Consequently, the case will then be heard in an informal hearing before the FREC.
Stipulation Rather than attend a hearing when the licensee does not dispute the facts, he or she may agree to meet with the Division of Real Estate to discuss an agreement that will end the case. The agreement, called a stipulation, will take into consideration the facts of the case and what, if any, penalties both parties can agree upon. The stipulation must be approved by the FREC before it becomes effective. If the FREC denies the terms of the stipulation, it can make recommendations for changes to the penalties that it feels are more appropriate for approval.
Voluntary
relinquishment Another decision the offending licensee may make to avoid going through a complaint hearing is a voluntarily relinquishment for permanent revocation of his or her license. Doing so will permanently revoke the license and prohibit the Section 6: Violations of License Law, Penalties and Procedures to Real Estate 119
licensee from ever practicing real estate again. The relinquishment will take the place of any potential penalties that may have been deemed appropriate as a result of a hearing. The relinquishment must be approved by the FREC, who will notify the offender of their approval through a final order.
