Chapter 402
S.P. 659 - L.D. 1842
PART BB
Sec. BB-1. 32 MRSA §13001, sub-§1-A is enacted to read:
1-A. Commission.
"Commission" means the Real Estate Commission.
Sec. BB-2. 32 MRSA §13001, sub-§1-B is enacted to read:
1-B. Director.
"Director" means the director of the Real Estate Commission.
Sec. BB-3. 32 MRSA §13007 is enacted to read:
The Director of the Office of Licensing and Registration within the Department of Professional and Financial Regulation may establish by rule fees for purposes authorized under this chapter in amounts that are reasonable and necessary for their respective purposes, except that the fee for any one purpose may not exceed $100. Rules adopted pursuant to this section are routine technical rules pursuant to Title 5, chapter 375, subchapter 2-A.
Sec. BB-4. 32 MRSA §13062, as amended by PL 1997, c. 727, Pt. C, §§12 to 14, is further amended to read:
1. Real Estate Commission composition.
The Real Estate Commission, established by Title 5, section 12004-A, subsection 37, shall be referred to in this chapter as the "commission." The commission shall consist consists of 4 industry members and 2 public members as defined in Title 5, section 12004-A.
2. Qualifications.
Each industry member of the commission must have been a real estate broker or associate broker by vocation in this State for at least 5 years prior to appointment. The public members, the members' spouses, parents and children must have no professional or financial connection with the real estate brokerage business.
3. Geographic distribution.
There may not be more than one industry member of the commission from any one county at one time.
4. Terms; removal.
Terms of the members of the commission are for 3 years. Members may be removed by the Governor for cause.
5. Quorum; procedure.
A majority of the Four members of the commission constitutes constitute a quorum for the transaction of business under this chapter.
6. Appointments.
The members of the commission are appointed by the Governor. Appointments of members must comply with Title 10, section 60 8009.
7. Chair.
The commission shall annually elect a chair from its members.
Sec. BB-5. 32 MRSA §13063, as enacted by PL 1987, c. 395, Pt. A, §212, is repealed.
Sec. BB-6. 32 MRSA §13064, as enacted by PL 1987, c. 395, Pt. A, §212, is repealed.
Sec. BB-7. 32 MRSA §13065, sub-§1, as enacted by PL 1987, c. 395, Pt. A, §212, is repealed.
Sec. BB-8. 32 MRSA §13065, sub-§2, as enacted by PL 1987, c. 395, Pt. A, §212, is repealed.
Sec. BB-9. 32 MRSA §13065, sub-§5, as amended by PL 1997, c. 209, §2, is repealed.
Sec. BB-10. 32 MRSA §13066, as amended by PL 1999, c. 129, §4, is repealed.
Sec. BB-11. 32 MRSA §13067, as amended by PL 1999, c. 129, §5, is repealed.
Sec. BB-12. 32 MRSA §13067-A is enacted to read:
In addition to the grounds enumerated in Title 10, section 8003, subsection 5-A, paragraph A, the commission may deny a license, refuse to renew a license or impose the disciplinary sanctions authorized by Title 10, section 8003, subsection 5-A for:
1. Lack of trustworthiness.
Lack of trustworthiness and competence to transact real estate brokerage services in such manner as to safeguard the interests of the public;
2. Misconduct.
Any act or conduct, whether of the same or different character than specified in this chapter, that constitutes or demonstrates bad faith, incompetency, untrustworthiness or dishonest, fraudulent or improper dealings;
3. Act that constitutes grounds for denial.
Performing or attempting to perform any act or acts for which a license may lawfully be denied to any applicant;
4. Substantial misrepresentation.
Making any substantial misrepresentation by omission or commission, but not including innocent misrepresentation;
5. Failure to protect principal.
Failing to act in a reasonably prudent manner in order to protect and promote the interests of the principal with absolute fidelity;
6. Failure to avoid error, exaggeration or concealment.
Failing to act in a reasonably prudent manner in order to avoid error, exaggeration or concealment of pertinent information;
7. Liability of agency and designated broker.
Violation of this chapter by a licensed or unlicensed person acting on the agency's behalf if: A. The designated broker had prior knowledge and did not take reasonable action to prevent the violation;
B. The designated broker permitted or authorized a person to engage in activity for which that person was not properly licensed; or
C. The designated broker failed to exercise a reasonable degree of supervision over employees and independent contractors commensurate with their qualifications and experience;
8. Unlawful payment.
Offering, promising, allowing, giving or paying, directly or indirectly, any part or share of compensation arising or accruing from a real estate brokerage transaction to any person who is not licensed to perform the service for which the person is or would be compensated, if a license is required under this chapter for performance of that service. A licensee may not be employed by or accept brokerage compensation from any person other than the agency under which the licensee is at the time licensed. An agency may share compensation with a nonresident licensee when the service by the nonresident is performed outside this State;
9. Suspension or revocation of license.
Having had a professional or occupational license suspended or revoked for disciplinary reasons or an application rejected for reasons related to untrustworthiness within 3 years prior to the date of application; and
10. Failure to meet professional qualifications; failure to submit complete application.
Failing to meet the professional qualifications for licensure as provided in this subchapter or failing to submit a complete application within 30 days after being notified of the materials needed to complete the application.
Sec. BB-13. 32 MRSA §13068, as amended by PL 1999, c. 547, Pt. B, §§75 and 78 and affected by §80, is further amended to read:
1. Licensing.
After hearing, the commission may affirm, modify or reverse the director's decision to deny an examination, license or renewal license or, in its discretion, file a complaint in the District Court pursuant to Title 4, chapter 5 and Title 5, section 10051 to determine whether a license may be denied.
2. Violation of chapter.
If, after hearing, the commission finds that a violation of this chapter has occurred, it may: A. Reprimand the person or entity;
B. Require the person or entity to comply with such terms and conditions as it determines necessary to correct the basis for the violation or prevent further violations by issuing a cease and desist order. Violation of a cease and desist order shall constitute a violation of this chapter;
C. Assess the violator a fine of no more than $2,000 a violation;
D. Suspend or revoke any license issued under this chapter; or
E. Report its findings and recommendations to the Attorney General or the district attorney recommending prosecution.
3. Appeals.
Appeals from decisions of the commission shall be to the District Court. Appeals shall be based on questions of law. The procedure for appeals under this section shall be as provided in the Maine Administrative Procedure Act, Title 5, chapter 375, subchapter VII, except that for purposes of this section, all references to the Superior Court shall be construed as references to the District Court. Further appeal shall be directly to the Law Court.
Notwithstanding the provisions of Title 10, section 8003, subsection 5-A, revocations ordered by the commission are subject to judicial review exclusively in the Superior Court in accordance with Title 5, chapter 375, subchapter 7.
Sec. BB-14. 32 MRSA §13069, sub-§4-A, as amended by PL 1999, c. 687, Pt. F, §9, is repealed.
Sec. BB-15. 32 MRSA §13069, sub-§6, as amended by PL 1999, c. 129, §6 and affected by §16, is further amended to read:
6. Investigations.
The director shall may investigate the actions of any licensee under this chapter, or any person or entity who assumes to act in a capacity requiring a license under this chapter, upon receipt of a verified written complaint or in accordance with the guidelines prescribed by commission rule. Upon completion of the investigation, the director shall take one of the following actions: A. With the commission's approval, dismiss the complaint;
B. With the consent of the parties and subject to approval of the commission and commission counsel, execute a consent agreement; or
C. Issue a staff petition for hearing before the commission, which may include a recommended disposition.
Sec. BB-16. 32 MRSA §13172, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
Each applicant for an original agency license shall submit a properly completed an application upon blanks furnished by the director, signed under oath by the authorized agency official, together with the prescribed fee as set under section 13007.
Sec. BB-17. 32 MRSA §13175, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
Any change of address, name or other material changes in the conditions or qualifications set forth in the original application shall must be reported to the director no later than 10 days after the change. Upon proper application and payment of the prescribed fee as set under section 13007, the commission records shall must be changed and a new license shall must be issued for the unexpired term of the current license, if appropriate.
Sec. BB-18. 32 MRSA §13181, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
The director shall issue to each agency a license in the form and size prescribed by the commission Commissioner of Professional and Financial Regulation. The license of each broker, associate broker and sales agent shall must be delivered or mailed to the designated broker and be kept in the custody and control of the designated broker. It is the duty of the designated broker to conspicuously display the agency license in his the broker's place of business.
Sec. BB-19. 32 MRSA §13182, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
Agency licenses shall expire on December 31st, or at such times as the Commissioner of Professional and Financial Regulation may designate, of each biennial period for which it was issued. Upon proper application and payment of the prescribed fee as set under section 13007, a renewal license shall be is issued for each ensuing biennial period in the absence of any reason or condition which that might warrant denial of a license. The suspension, revocation or expiration of an agency or designated broker's license shall automatically suspend suspends every license granted to any person by virtue of his the person's employment by the agency whose license has been suspended, revoked or expired pending a change of employer and the issuance of a new license. The new license shall be is issued without charge if granted during the same biennial period in which the original was granted.
Sec. BB-20. 32 MRSA §13191, sub-§1, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
1. Application.
Applicants shall must submit a properly completed an application upon forms furnished by the director, together with the prescribed fee as set under section 13007.
Sec. BB-21. 32 MRSA §13191, sub-§5, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
5. Reputation.
The applicant shall must have a good reputation for honesty, truthfulness, fair dealing and competency. A recommendation of The applicant must furnish recommendations from at least 3 persons , not related to the applicant who have acknowledged before a notary public that they have known the applicant for at least one year immediately preceding the date of the application and by their signature attest that the applicant has such a reputation , shall be a rebuttable presumption of meeting that qualification.
Sec. BB-22. 32 MRSA §13192, as amended by PL 1991, c. 53, §§6 and 7, is repealed.
Sec. BB-23. 32 MRSA §13194, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
Licenses shall expire on December 31st, or at such other times as the Commissioner of Professional and Financial Regulation may designate, of each biennial period for which it was issued, except those licenses issued under section 13200. The director shall issue a renewal license for each ensuing biennial period in the absence of any reason or condition which that might warrant the refusal of granting a license, upon receipt of the written request of the applicant, the biennial fee as set under section 13007 for the license and upon the applicant presenting evidence of compliance with the requirements of section 13197. The director shall deny a renewal license to any applicant whose license has lapsed for more than 90 days, unless the renewal license applicant passes the license examination designated by commission rule for this purpose.
Sec. BB-24. 32 MRSA §13195, as amended by PL 1999, c. 129, §9 and affected by §16, is further amended to read:
Any change of address, name or other material change in the conditions or qualifications set forth in the original application, including but not limited to criminal convictions or suspension or revocation of any professional license, must be reported to the director no later than 10 days after the change. Upon proper application and payment of the prescribed fee as set under section 13007, the commission records must be changed and a new license issued for the unexpired term of the current license, if appropriate.
Sec. BB-25. 32 MRSA §13196, as amended by PL 2005, c. 378, §7 and affected by §29, is further amended to read:
1. Placement on inactive status.
Any licensee who does not desire to perform any of the activities described in section 13001 and who wants to preserve the license while not engaged in any brokerage activity may surrender that license apply to the commission for placement on inactive status upon payment of the fee as set under section 13007. The commission may place the license on inactive status and issue an inactive license only upon proper application by the licensee. During inactive status, the licensee is required to renew the license biennially, but is not required to maintain a place of business or meet the educational provisions of section 13197.
2. Reinstatement to active status.
Licensees who have surrendered their licenses pursuant to this section and who have remained on inactive status for 6 years or more may have their licenses reinstated to active status by submitting proper an application and fee and by successfully passing a license examination designated by commission rule for this purpose. Licensees who activate within 6 years of the initial inactive license may activate by successfully completing the designated examination or by completing continuing education courses that meet commission approved clock hours as follows:A. For those applicants remaining inactive from the issuance of the inactive licenses up to 2 years, 21 clock hours of continuing education completed within the previous biennium;
B. For those applicants remaining inactive for more than 2 years but less than 4 years, 28 clock hours of continuing education completed within the previous biennium; or
C. For those applicants remaining inactive for more than 4 years but less than 6 years, 36 clock hours of continuing education completed within the previous biennium.
Sec. BB-26. 32 MRSA §13197, sub-§2, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
2. Program approval.
Each application for approval of a continuing education program shall must be submitted according to the guidelines prescribed by the commission, together with the required application fee as set under section 13007. The fee shall be is retained whether or not the application is approved, except that the commission may waive the application fee for any program or course for the purpose of promoting the intent of this section and which that meets the standards prescribed by rule.
Sec. BB-27. 32 MRSA §13198, sub-§3, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
3. Acts authorized.
Each broker license granted shall entitle entitles the holder to perform all of the acts contemplated under this chapter in on behalf of an agency, including being designated by the agency to act for it or as a branch office manager.
Sec. BB-28. 32 MRSA §13199, sub-§3, as enacted by PL 1987, c. 395, Pt. A, §212, is amended to read:
3. Acts authorized.
Each associate broker license granted shall entitle entitles the holder to perform all of the acts contemplated by this chapter, in on behalf of an agency, except serving as a designated broker or a branch office manager.