Senate Bill sb1266c1

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    Florida Senate - 2003                           CS for SB 1266

    By the Committee on Regulated Industries; and Senator Posey





    315-2312-03

  1                      A bill to be entitled

  2         An act relating to regulation of real estate

  3         professionals; amending s. 475.001, F.S.;

  4         conforming terminology; amending s. 475.01,

  5         F.S.; redesignating "broker-salespersons" as

  6         "broker associates" and "salespersons" as

  7         "sales associates"; expanding the definition of

  8         "transaction broker"; amending s. 475.011,

  9         F.S.; conforming terminology; amending ss.

10         475.02 and 475.04, F.S.; conforming

11         terminology; creating s. 475.161, F.S.;

12         providing for licensing of broker associates

13         and sales associates; amending s. 475.17, F.S.;

14         revising qualifications for practice;

15         authorizing additional subjects for

16         postlicensure education; restricting approval

17         of distance learning courses to instances of

18         hardship; conforming terminology; amending s.

19         475.175, F.S.; revising requirements to take

20         the license examination; revising requirements

21         with respect to notice of completion of

22         educational requirements; amending s. 475.181,

23         F.S.; conforming terminology; amending s.

24         475.182, F.S.; providing guidelines for

25         approving specialty courses; conforming

26         terminology; amending s. 475.215, F.S.;

27         conforming terminology; amending s. 475.22,

28         F.S.; revising requirements with respect to

29         brokers' signs; amending s. 475.23, F.S.;

30         providing for notice of change of address;

31         conforming terminology; amending s. 475.25,

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 1         F.S.; revising duties of licensees with respect

 2         to escrowed property; allowing a broker to

 3         place personal or brokerage funds in property

 4         management and sales escrow accounts; providing

 5         for investment of escrow moneys; providing

 6         penalties; providing a time limit on filing

 7         complaints against a licensee; requiring notice

 8         to employer of disciplinary action against a

 9         licensee; providing for referral of criminal

10         violations to prosecuting authorities;

11         conforming terminology; amending s. 475.2755,

12         F.S.; conforming terminology; amending s.

13         475.278, F.S.; revising provisions relating to

14         authorized brokerage relationships; providing a

15         presumption of transaction brokerage; revising

16         disclosure requirements; amending s. 475.31,

17         F.S.; providing effect of revocation or

18         suspension of a broker's license; conforming

19         terminology; amending ss. 475.37 and 475.41,

20         F.S.; conforming terminology; amending s.

21         475.42, F.S.; providing an additional ground

22         for disciplinary action relating to false or

23         misleading information on real estate located

24         in the state; providing penalties; conforming

25         terminology; creating s. 475.423, F.S.;

26         specifying the transactions that are subject to

27         the requirements of the act; providing

28         definitions; requiring that certain disclosures

29         be made by the transferor or his or her agent

30         with respect to real property located within a

31         flood hazard area, an area with severe

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 1         constraints for development, an area having

 2         sinkhole activity, a wellhead protection area,

 3         a priority wetland zone, a habitat conservation

 4         area, an airport influence area, an

 5         environmental site, or a radon gas zone;

 6         providing that the waiver of such requirements

 7         is against public policy; providing certain

 8         exceptions; specifying the form to be used as

 9         the Property Identification Disclosure

10         Statement; providing requirements for

11         identifying information that accompanies the

12         disclosure statement; prohibiting the use of

13         the disclosure statement by certain entities

14         other than the transferor, the transferor's

15         agents, and the transferee; providing

16         requirements for delivery of the required

17         disclosure statement; providing a limitation

18         with respect to liability for errors,

19         inaccuracy, or omissions; requiring a third

20         party that provides information with respect to

21         the disclosure statement to maintain a

22         specified amount of insurance protection;

23         providing that certain subsequent inaccuracies

24         with respect to the information disclosed are

25         not a violation of the act; requiring that

26         disclosures be made in good faith; providing

27         that the act does not limit or abridge other

28         disclosures required by law; authorizing the

29         amendment of a disclosure; providing for

30         delivery of disclosures; providing requirements

31         for the licensee or broker acting as an agent

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 1         in a transaction subject to the act; amending

 2         s. 475.43, F.S.; conforming terminology;

 3         amending s. 475.451, F.S.; revising

 4         prerequisites for renewal of an instructor

 5         permit; removing an exemption from instructor

 6         examination requirements; conforming

 7         terminology; repealing s. 475.4511(4), F.S.,

 8         relating to the prohibition against a school

 9         advertising in conjunction with an affiliated

10         broker; amending ss. 475.453 and 475.455, F.S.;

11         conforming terminology; amending s. 475.482,

12         F.S.; increasing the maximum amount that may be

13         in the Real Estate Recovery Fund; conforming

14         terminology; amending s. 475.483, F.S.;

15         revising guidelines for payment of attorney's

16         fees with respect to recovery from the fund;

17         conforming terminology; amending ss. 475.484

18         and 475.5017, F.S.; increasing maximum amounts

19         payable from the fund; conforming terminology;

20         creating s. 475.505, F.S.; providing

21         requirements for temporary practice; amending

22         s. 475.612, F.S.; conforming terminology;

23         amending s. 689.25, F.S.; prescribing facts and

24         conditions the existence of which need not be

25         disclosed in a real estate transaction;

26         repealing s. 475.421, F.S., relating to

27         publication of false or misleading information

28         on real estate located in the state; repealing

29         s. 475.422, F.S., relating to disclosure of

30         termite and roof inspection reports; amending

31         ss. 83.49, 440.02, 443.036, 501.604, 687.14,

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 1         721.20, and 760.29, F.S.; conforming

 2         terminology; providing an effective date.

 3  

 4  Be It Enacted by the Legislature of the State of Florida:

 5  

 6         Section 1.  Section 475.001, Florida Statutes, is

 7  amended to read:

 8         475.001  Purpose.--The Legislature deems it necessary

 9  in the interest of the public welfare to regulate real estate

10  brokers, sales associates salespersons, and schools in this

11  state.

12         Section 2.  Section 475.01, Florida Statutes, is

13  amended to read:

14         475.01  Definitions.--

15         (1)  As used in this part:

16         (a)  "Broker" means a person who, for another, and for

17  a compensation or valuable consideration directly or

18  indirectly paid or promised, expressly or impliedly, or with

19  an intent to collect or receive a compensation or valuable

20  consideration therefor, appraises, auctions, sells, exchanges,

21  buys, rents, or offers, attempts or agrees to appraise,

22  auction, or negotiate the sale, exchange, purchase, or rental

23  of business enterprises or business opportunities or any real

24  property or any interest in or concerning the same, including

25  mineral rights or leases, or who advertises or holds out to

26  the public by any oral or printed solicitation or

27  representation that she or he is engaged in the business of

28  appraising, auctioning, buying, selling, exchanging, leasing,

29  or renting business enterprises or business opportunities or

30  real property of others or interests therein, including

31  mineral rights, or who takes any part in the procuring of

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 1  sellers, purchasers, lessors, or lessees of business

 2  enterprises or business opportunities or the real property of

 3  another, or leases, or interest therein, including mineral

 4  rights, or who directs or assists in the procuring of

 5  prospects or in the negotiation or closing of any transaction

 6  which does, or is calculated to, result in a sale, exchange,

 7  or leasing thereof, and who receives, expects, or is promised

 8  any compensation or valuable consideration, directly or

 9  indirectly therefor; and all persons who advertise rental

10  property information or lists. A broker renders a professional

11  service and is a professional within the meaning of s.

12  95.11(4)(a). Where the term "appraise" or "appraising" appears

13  in the definition of the term "broker," it specifically

14  excludes those appraisal services which must be performed only

15  by a state-licensed or state-certified appraiser, and those

16  appraisal services which may be performed by a registered

17  assistant appraiser as defined in part II. The term "broker"

18  also includes any person who is a general partner, officer, or

19  director of a partnership or corporation which acts as a

20  broker. The term "broker" also includes any person or entity

21  who undertakes to list or sell one or more timeshare periods

22  per year in one or more timeshare plans on behalf of any

23  number of persons, except as provided in ss. 475.011 and

24  721.20.

25         (b)  "Broker associate Broker-salesperson" means a

26  person who is qualified to be issued a license as a broker but

27  who operates as a sales associate salesperson in the employ of

28  another.

29         (c)  "Commission" means the Florida Real Estate

30  Commission.

31  

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 1         (d)  "Customer" means a member of the public who is or

 2  may be a buyer or seller of real property and may or may not

 3  be represented by a real estate licensee in an authorized

 4  brokerage relationship.

 5         (e)  "Department" means the Department of Business and

 6  Professional Regulation.

 7         (f)  "Fiduciary" means a broker in a relationship of

 8  trust and confidence between that broker as agent and the

 9  seller or buyer as principal. The duties of the broker as a

10  fiduciary are loyalty, confidentiality, obedience, full

11  disclosure, and accounting and the duty to use skill, care,

12  and diligence.

13         (g)  "Involuntarily inactive status" means the

14  licensure status that results when a license is not renewed at

15  the end of the license period prescribed by the department.

16         (h)  "Principal" means the party with whom a real

17  estate licensee has entered into a single agent relationship.

18         (i)  "Real property" or "real estate" means any

19  interest or estate in land and any interest in business

20  enterprises or business opportunities, including any

21  assignment, leasehold, subleasehold, or mineral right;

22  however, the term does not include any cemetery lot or right

23  of burial in any cemetery; nor does the term include the

24  renting of a mobile home lot or recreational vehicle lot in a

25  mobile home park or travel park.

26         (j)  "Sales associate Salesperson" means a person who

27  performs any act specified in the definition of "broker," but

28  who performs such act under the direction, control, or

29  management of another person. A salesperson renders a

30  professional service and is a professional within the meaning

31  of s. 95.11(4)(a).

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 1         (k)  "Single agent" means a broker who represents, as a

 2  fiduciary, either the buyer or seller but not both in the same

 3  transaction.

 4         (l)  "Transaction broker" means a broker who provides

 5  limited representation to a buyer, a seller, or both, in a

 6  real estate transaction, but does not represent either in a

 7  fiduciary capacity or as a single agent. In a transaction

 8  broker relationship, a buyer or seller is not responsible for

 9  the acts of a licensee. Additionally, the parties to a real

10  estate transaction are giving up their rights to the undivided

11  loyalty of a licensee. This aspect of limited representation

12  allows a licensee to facilitate a real estate transaction by

13  assisting both the buyer and the seller, but a licensee will

14  not work to represent one party to the detriment of the other

15  party when acting as a transaction broker to both parties.

16         (m)  "Voluntarily inactive status" means the licensure

17  status that results when a licensee has applied to the

18  department to be placed on inactive status and has paid the

19  fee prescribed by rule.

20         (2)  The terms "employ," "employment," "employer," and

21  "employee," when used in this chapter and in rules adopted

22  pursuant thereto to describe the relationship between a broker

23  and a sales associate salesperson, include an independent

24  contractor relationship when such relationship is intended by

25  and established between a broker and a sales associate

26  salesperson. The existence of such relationship shall not

27  relieve either the broker or the sales associate salesperson

28  of her or his duties, obligations, or responsibilities under

29  this chapter.

30         (3)  Wherever the word "operate" or "operating" as a

31  broker, broker associate broker-salesperson, or sales

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 1  associate salesperson appears in this chapter; in any order,

 2  rule, or regulation of the commission; in any pleading,

 3  indictment, or information under this chapter; in any court

 4  action or proceeding; or in any order or judgment of a court,

 5  it shall be deemed to mean the commission of one or more acts

 6  described in this chapter as constituting or defining a

 7  broker, broker associate broker-salesperson, or sales

 8  associate salesperson, not including, however, any of the

 9  exceptions stated therein.  A single such act is sufficient to

10  bring a person within the meaning of this chapter, and each

11  act, if prohibited herein, constitutes a separate offense.

12         (4)  A broker acting as a trustee of a trust created

13  under chapter 689 is subject to the provisions of this chapter

14  unless the trustee is a bank, state or federal association, or

15  trust company possessing trust powers as defined in s.

16  658.12(23).

17         Section 3.  Section 475.011, Florida Statutes, is

18  amended to read:

19         475.011  Exemptions.--This part does not apply to:

20         (1)  Any person acting as an attorney in fact for the

21  purpose of the execution of contracts or conveyances only; as

22  an attorney at law within the scope of her or his duties as

23  such; as a certified public accountant, as defined in chapter

24  473, within the scope of her or his duties as such; as the

25  personal representative, receiver, trustee, or master under,

26  or by virtue of, an appointment by will or by order of a court

27  of competent jurisdiction; or as trustee under a deed of

28  trust, or under a trust agreement, the ultimate purpose and

29  intent whereof is charitable, is philanthropic, or provides

30  for those having a natural right to the bounty of the donor or

31  trustor.;

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 1         (2)  Any individual, corporation, partnership, trust,

 2  joint venture, or other entity which sells, exchanges, or

 3  leases its own real property; however, this exemption shall

 4  not be available if and to the extent that an agent, employee,

 5  or independent contractor paid a commission or other

 6  compensation strictly on a transactional basis is employed to

 7  make sales, exchanges, or leases to or with customers in the

 8  ordinary course of an owner's business of selling, exchanging,

 9  or leasing real property to the public.;

10         (3)  Any employee of a public utility, a rural electric

11  cooperative, a railroad, or a state or local governmental

12  agency who acts within the scope of her or his employment, for

13  which no compensation in addition to the employee's salary is

14  paid, to buy, sell, appraise, exchange, rent, auction, or

15  lease any real property or any interest in real property for

16  the use of her or his employer.;

17         (4)  Any salaried employee of an owner, or of a

18  registered broker for an owner, of an apartment community who

19  works in an onsite rental office of the apartment community in

20  a leasing capacity.;

21         (5)  Any person employed for a salary as a manager of a

22  condominium or cooperative apartment complex as a result of

23  any activities or duties which the person may have in relation

24  to the renting of individual units within such condominium or

25  cooperative apartment complex if rentals arranged by the

26  person are for periods no greater than 1 year.;

27         (6)  Any person, partnership, corporation, or other

28  legal entity which, for another and for compensation or other

29  valuable consideration, sells, offers to sell, advertises for

30  sale, buys, offers to buy, or negotiates the sale or purchase

31  of radio, television, or cable enterprises licensed and

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 1  regulated by the Federal Communications Commission pursuant to

 2  the Communications Act of 1934.  However, if the sale or

 3  purchase of the radio, television, or cable enterprise

 4  involves the sale or lease of land, buildings, fixtures, and

 5  all other improvements to the land, a broker or sales

 6  associate salesperson licensed under this chapter shall be

 7  retained for the portion of the transaction which includes the

 8  land, buildings, fixtures, and all other improvements to the

 9  land.; or

10         (7)  Any full-time graduate student who is enrolled in

11  a commission-approved degree program in appraising at a

12  college or university in this state, if the student is acting

13  under the direct supervision of a licensed broker or a

14  licensed or certified appraiser and is engaged only in

15  appraisal activities related to the approved degree

16  program.  Any appraisal report by the student must be issued

17  in the name of the supervising individual.

18         (8)(a)  An owner of one or part of one or more

19  timeshare periods for the owner's own use and occupancy who

20  later offers one or more of such periods for resale.

21         (b)  An exchange company, as that term is defined by s.

22  721.05(14), but only to the extent that the exchange company

23  is engaged in exchange program activities as described in and

24  is in compliance with s. 721.18.

25         (9)  Any person registered, licensed, or certified by

26  the department under part II as an appraiser or assistant

27  appraiser performing appraisals in accordance with that part.

28         (10)  Any person who appraises under the unit-rule

29  method of valuation a railroad or railroad terminal company

30  assessed for ad valorem tax purposes pursuant to s. 193.085.

31  

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 1         (11)  Any person, partnership, corporation, or other

 2  legal entity which, for another and for compensation or other

 3  valuable consideration, rents or advertises for rent, for

 4  transient occupancy, any public lodging establishment licensed

 5  under chapter 509.

 6         (12)  Any dealer registered under the Securities and

 7  Exchange Act of 1934, as amended, or any federally insured

 8  depository institution and any parent, subsidiary, or

 9  affiliate thereof, in connection with the sale, exchange,

10  purchase, or rental of a business enterprise to or by a person

11  who is an accredited investor as defined by 15 U.S.C. s. 77b,

12  the Securities Act of 1933, or any regulation adopted

13  thereunder. This exemption applies whether stock or assets of

14  the business enterprise are purchased or sold. The exemption

15  does not apply to a sale, exchange, purchase, or rental of

16  land, buildings, fixtures or other improvements to the land

17  which is not made in connection with the sale, exchange,

18  purchase, or rental of a business enterprise. Any reference to

19  rental in this subsection includes a lease transaction.

20         (13)  Any property management firm or any owner of an

21  apartment complex for the act of paying a finder's fee or

22  referral fee to an unlicensed person who is a tenant in such

23  apartment complex provided the value of the fee does not

24  exceed $50 per transaction. Nothing in this subsection

25  authorizes an unlicensed person to advertise or otherwise

26  promote the person's services in procuring or assisting in

27  procuring prospective lessees or tenants of apartment units.

28  For purposes of this subsection, "finder's fee" or "referral

29  fee" means a fee paid, credit towards rent, or some other

30  thing of value provided to a person for introducing or

31  arranging an introduction between parties to a transaction

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 1  involving the rental or lease of an apartment unit. It is a

 2  violation of s. 475.25(1)(h) and punishable under s. 475.42

 3  for a property management firm or any owner of an apartment

 4  complex to pay a finder's fee or a referral fee to an

 5  unlicensed person unless expressly authorized by this

 6  subsection.

 7         Section 4.  Subsection (1) of section 475.02, Florida

 8  Statutes, is amended to read:

 9         475.02  Florida Real Estate Commission.--

10         (1)  There is created within the department the Florida

11  Real Estate Commission. The commission shall consist of seven

12  members who shall be appointed by the Governor, subject to

13  confirmation by the Senate. Four members must be licensed

14  brokers, each of whom has held an active license for the 5

15  years preceding appointment; one member must be a licensed

16  broker or a licensed sales associate salesperson who has held

17  an active license for the 2 years preceding appointment; and

18  two members must be persons who are not, and have never been,

19  brokers or sales associates salespersons. At least one member

20  of the commission must be 60 years of age or older. The

21  current members may complete their present terms unless

22  removed for cause.

23         Section 5.  Section 475.04, Florida Statutes, is

24  amended to read:

25         475.04  Duty of commission to educate members of

26  profession.--

27         (1)  The commission shall foster the education of

28  brokers, broker associates broker-salespersons, sales

29  associates salespersons, and instructors concerning the

30  ethical, legal, and business principles which should govern

31  their conduct.

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 1         (2)  For the purpose of performing its duty under

 2  subsection (1) to educate persons holding a license or permit,

 3  the commission may conduct, offer, sponsor, prescribe, or

 4  approve real estate educational courses for all persons

 5  licensed or permitted by the department as brokers, broker

 6  associates broker-salespersons, sales associates salespersons,

 7  or instructors; and the cost and expense of such courses shall

 8  be paid as provided in s. 475.125.

 9         (3)  The commission may also publish and sell, at a

10  reasonable price intended to cover costs, a handbook on this

11  chapter and other publications intended to be textbooks or

12  guidelines for study and guidance of students, applicants,

13  licensees, certificateholders, and permitholders, and members

14  of the general public, copyright of which shall be the

15  property of the state.

16         Section 6.  Section 475.161, Florida Statutes, is

17  created to read:

18         475.161  Licensing of broker associates and sales

19  associates.--The commission shall license a broker associate

20  or sales associate as an individual or, upon the licensee

21  providing the commission with authorization from the

22  Department of State, as a professional corporation or limited

23  liability company. A license shall be issued in the licensee s

24  legal name only and, when appropriate, shall include the

25  entity designation. This section shall not operate to permit a

26  broker associate or sales associate to register or be licensed

27  as a general partner, member, officer, or director of a

28  brokerage firm under s. 475.15.

29         Section 7.  Section 475.17, Florida Statutes, is

30  amended to read:

31         475.17  Qualifications for practice.--

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 1         (1)(a)  An applicant for licensure who is a natural

 2  person must be at least 18 years of age; hold a high school

 3  diploma or its equivalent; be honest, truthful, trustworthy,

 4  and of good character; and have a good reputation for fair

 5  dealing.  An applicant for an active broker's license or a

 6  sales associate's salesperson's license must be competent and

 7  qualified to make real estate transactions and conduct

 8  negotiations therefor with safety to investors and to those

 9  with whom the applicant may undertake a relationship of trust

10  and confidence. If the applicant has been denied registration

11  or a license or has been disbarred, or the applicant's

12  registration or license to practice or conduct any regulated

13  profession, business, or vocation has been revoked or

14  suspended, by this or any other state, any nation, or any

15  possession or district of the United States, or any court or

16  lawful agency thereof, because of any conduct or practices

17  which would have warranted a like result under this chapter,

18  or if the applicant has been guilty of conduct or practices in

19  this state or elsewhere which would have been grounds for

20  revoking or suspending her or his license under this chapter

21  had the applicant then been registered, the applicant shall be

22  deemed not to be qualified unless, because of lapse of time

23  and subsequent good conduct and reputation, or other reason

24  deemed sufficient, it appears to the commission that the

25  interest of the public and investors will not likely be

26  endangered by the granting of registration. The commission may

27  adopt rules requiring an applicant for licensure to provide

28  written information to the commission regarding the

29  applicant's good character.

30         (b)  An application may be disapproved if the applicant

31  has acted or attempted to act, or has held herself or himself

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 1  out as entitled to act, during the period of 1 year next prior

 2  to the filing of the application, as a real estate broker or

 3  sales associate salesperson in the state in violation of this

 4  chapter. This paragraph may be deemed to bar any person from

 5  licensure who has performed any of the acts or services

 6  described in s. 475.01(3), unless exempt pursuant to s.

 7  475.011, during a period of 1 year next preceding the filing

 8  of the application, or during the pendency of the application,

 9  and until a valid current license has been duly issued to the

10  person, regardless of whether the performance of the act or

11  service was done for compensation or valuable consideration.

12         (2)(a)1.  In addition to other requirements under this

13  part, the commission may require the satisfactory completion

14  of one or more of the educational courses or equivalent

15  courses conducted, offered, sponsored, prescribed, or approved

16  pursuant to s. 475.04, taken at an accredited college,

17  university, or community college, at an area technical center,

18  or at a registered real estate school, as a condition

19  precedent for any person to become licensed or to renew her or

20  his license as a broker, broker associate broker-salesperson,

21  or sales associate salesperson. The course or courses required

22  for one to become initially licensed shall not exceed a total

23  of 63 classroom hours of 50 minutes each, inclusive of

24  examination, for a sales associate salesperson and 72

25  classroom hours of 50 minutes each, inclusive of examination,

26  for a broker. The satisfactory completion of an examination

27  administered by the accredited college, university, or

28  community college, by the area technical center, or by the

29  registered real estate school shall be the basis for

30  determining satisfactory completion of the course. However,

31  

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 1  notice of satisfactory completion shall not be issued if the

 2  student has absences in excess of 8 classroom hours.

 3         2.  A distance learning course or courses shall be

 4  approved by the commission as an option to classroom hours as

 5  satisfactory completion of the course or courses as required

 6  by this section. The schools authorized by this section have

 7  the option of providing classroom courses, distance learning

 8  courses, or both.  However, satisfactory completion of a

 9  distance learning course requires the satisfactory completion

10  of a timed distance learning course examination.  Such

11  examination shall not be required to be monitored or given at

12  a centralized location.

13         3.  Such required course or courses must be made

14  available by correspondence or other suitable means to any

15  person who, by reason of hardship, as defined by rule, cannot

16  attend the place or places where the course or courses are

17  regularly conducted or does not have access to the distance

18  learning course or courses.

19         (b)  A person may not be licensed as a real estate

20  broker unless, in addition to the other requirements of law,

21  the person has held:

22         1.  An active real estate sales associate's

23  salesperson's license for at least 12 months during the

24  preceding 5 years in the office of one or more real estate

25  brokers licensed in this state or any other state, territory,

26  or jurisdiction of the United States or in any foreign

27  national jurisdiction;

28         2.  A current and valid real estate sales associate's

29  salesperson's license for at least 12 months during the

30  preceding 5 years in the employ of a governmental agency for a

31  

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 1  salary and performing the duties authorized in this part for

 2  real estate licensees; or

 3         3.  A current and valid real estate broker's license

 4  for at least 12 months during the preceding 5 years in any

 5  other state, territory, or jurisdiction of the United States

 6  or in any foreign national jurisdiction.

 7  

 8  This paragraph does not apply to a person employed as a real

 9  estate investigator by the Division of Real Estate, provided

10  the person has been employed as a real estate investigator for

11  at least 24 months. The person must be currently employed as a

12  real estate investigator to sit for the real estate broker's

13  examination and have held a valid and current sales

14  associate's salesperson's license for at least 12 months.

15         (c)  A person who has been licensed as a real estate

16  sales associate salesperson in Florida during the preceding 5

17  years may not be licensed as a real estate broker unless, in

18  addition to the other requirements of law, she or he has

19  completed the sales associate salesperson postlicensure

20  educational requirements, if these requirements have been

21  prescribed by the commission pursuant to paragraph(3)(a).

22         (3)(a)  The commission may prescribe a postlicensure

23  education requirement in order for a person to maintain a

24  valid sales associate's salesperson's license, which shall not

25  exceed 45 classroom hours of 50 minutes each, inclusive of

26  examination, prior to the first renewal following initial

27  licensure.  If prescribed, this shall consist of one or more

28  commission-approved courses which total at least 45 classroom

29  hours on one or more subjects which include, but are not

30  limited to, property management, appraisal, real estate

31  finance, or the economics of real estate management,

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 1  marketing, technology, sales and listing of properties,

 2  business office management, courses teaching practical real

 3  estate application skills, development of business plans,

 4  marketing of property, and time management. Required

 5  postlicensure education courses must be provided by an

 6  accredited college, university, or community college, by an

 7  area technical center, by a registered real estate school, or

 8  by a commission-approved sponsor.

 9         (b)  Satisfactory completion of the postlicensure

10  education requirement is demonstrated by successfully meeting

11  all standards established for the commission-prescribed or

12  commission-approved institution or school. However, notice of

13  satisfactory completion shall not be issued if the student has

14  absences in excess of 10 percent of the required classroom

15  hours or has not satisfactorily completed a timed distance

16  learning course examination.

17         (c)  The license of any sales associate salesperson who

18  does not complete the postlicensure education requirement

19  prior to the first renewal following initial licensure shall

20  be considered null and void. Such person wishing to again

21  operate as a real estate sales associate salesperson must

22  requalify by satisfactorily completing the sales associate's

23  salesperson's prelicensure course and passing the state

24  examination for licensure as a sales associate salesperson.

25         (d)  A sales associate salesperson who is required to

26  complete any postlicensure education requirement must complete

27  any postlicensure education requirement and hold a current and

28  valid license in order to be eligible for licensure as a

29  broker.

30         (4)(a)  The commission may prescribe a postlicensure

31  education requirement in order for a person to maintain a

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 1  valid broker's license, which shall not exceed 60 classroom

 2  hours of 50 minutes each, inclusive of examination, prior to

 3  the first renewal following initial licensure.  If prescribed,

 4  this shall consist of one or more commission-approved courses

 5  which total at least 60 classroom hours on one or more

 6  subjects which include, but are not limited to, advanced

 7  appraisal, advanced property management, real estate

 8  marketing, business law, advanced real estate investment

 9  analyses, advanced legal aspects, general accounting, real

10  estate economics, syndications, commercial brokerage,

11  feasibility analyses, advanced real estate finance,

12  residential brokerage, advanced marketing, technology,

13  advanced business planning, time management, or real estate

14  brokerage office operations. Required postlicensure education

15  courses must be provided by an accredited college, university,

16  or community college, by an area technical center, by a

17  registered real estate school, or by a commission-approved

18  sponsor.

19         (b)  Satisfactory completion of the postlicensure

20  education requirement is demonstrated by successfully meeting

21  all standards established for the commission-prescribed or

22  commission-approved institution or school. However, notice of

23  satisfactory completion shall not be issued if the student has

24  absences in excess of 10 percent of the required classroom

25  hours or has not satisfactorily completed a timed distance

26  learning course examination.

27         (c)  The license of any broker who does not complete

28  the postlicensure education requirement prior to the first

29  renewal following initial licensure shall be considered null

30  and void.  If the licensee wishes to operate as a sales

31  associate salesperson, she or he may be issued a sales

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 1  associate's salesperson's license after providing proof that

 2  she or he has satisfactorily completed the 14-hour continuing

 3  education course within the 6 months following expiration of

 4  her or his broker's license. To operate as a broker, the

 5  licensee must requalify by satisfactorily completing the

 6  broker's prelicensure course and passing the state examination

 7  for licensure as a broker.

 8         (5)(a)  The commission may allow an additional 6-month

 9  period after the first renewal following initial licensure for

10  completing the postlicensure education courses for sales

11  associates salespersons and brokers who cannot, due to

12  individual physical hardship, as defined by rule, complete the

13  courses within the required time.

14         (b)  Except as provided in subsection (4), sales

15  associates salespersons and brokers are not required to meet

16  the 14-hour continuing education requirement prior to the

17  first renewal following initial licensure.

18         (c)1.  A distance learning course or courses shall be

19  approved by the commission as an option to classroom hours as

20  satisfactory completion of the postlicensure education course

21  or courses as required by this section. The schools or

22  sponsors authorized by this section have the option of

23  providing classroom courses, distance learning courses, or

24  both.  However, satisfactory completion of a distance learning

25  postlicensure education course or courses requires the

26  satisfactory completion of a timed distance learning course

27  examination.  Such examination shall not be required to be

28  monitored or given at a centralized location.

29         2.  The commission shall provide for postlicensure

30  education courses to be made available by correspondence or

31  other suitable means to any person who, by reason of hardship,

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 1  as defined by rule, cannot attend the place or places where

 2  courses are regularly conducted or does not have access to the

 3  distance learning courses.

 4         (6)  The postlicensure education requirements of this

 5  section, and the education course requirements for one to

 6  become initially licensed, do not apply to any applicant or

 7  licensee who has received a 4-year degree in real estate from

 8  an accredited institution of higher education.

 9         (7)  The commission may not approve prelicensure or

10  postlicensure distance learning courses for brokers, broker

11  associates, and sales associates by correspondence methods,

12  except in instances of hardship pursuant to subparagraphs

13  (2)(a)3. and (5)(c)2.

14         Section 8.  Section 475.175, Florida Statutes, is

15  amended to read:

16         475.175  Examinations.--

17         (1)  A person shall be entitled to take the license

18  examination to practice in this state if the person:

19         (a)  Submits to the department the appropriate

20  notarized or electronically authenticated application and fee,

21  two photographs of herself or himself taken within the

22  preceding year, and a fingerprint card. The fingerprint card

23  shall be forwarded to the Division of Criminal Justice

24  Information Systems within the Department of Law Enforcement

25  for purposes of processing the fingerprint card to determine

26  if the applicant has a criminal history record. The

27  fingerprint card shall also be forwarded to the Federal Bureau

28  of Investigation for purposes of processing the fingerprint

29  card to determine if the applicant has a criminal history

30  record. The information obtained by the processing of the

31  fingerprint card by the Florida Department of Law Enforcement

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 1  and the Federal Bureau of Investigation shall be sent to the

 2  department for the purpose of determining if the applicant is

 3  statutorily qualified for examination. Effective July 1, 2006,

 4  an applicant shall provide fingerprints in electronic format.

 5         (b)  Submits at the time of examination the certificate

 6  specified in subsection (2), the examination admissions

 7  authorization letter card issued by the commission, and proof

 8  of identification.

 9         (2)  Each accredited college, university, community

10  college, or registered real estate school shall notify the

11  commission of the names of all persons who have satisfactorily

12  completed the educational requirements provided for in s.

13  475.17(2), (3), and (4) in a manner prescribed by the

14  commission.  Furthermore, each such educational institution

15  shall provide to each person satisfactorily completing the

16  educational requirements provided for in s. 475.17(2), (3),

17  and (4) a certificate as proof of such satisfactory

18  completion.

19         Section 9.  Subsection (1) of section 475.181, Florida

20  Statutes, is amended to read:

21         475.181  Licensure.--

22         (1)  The department shall license any applicant whom

23  the commission certifies, pursuant to subsection (2), to be

24  qualified to practice as a broker or sales associate

25  salesperson.

26         Section 10.  Section 475.182, Florida Statutes, is

27  amended to read:

28         475.182  Renewal of license; continuing education.--

29         (1)  The department shall renew a license upon receipt

30  of the renewal application and fee. The renewal application

31  for an active license as broker, broker associate

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 1  broker-salesperson, or sales associate salesperson shall

 2  include proof satisfactory to the commission that the licensee

 3  has, since the issuance or renewal of her or his current

 4  license, satisfactorily completed at least 14 classroom hours

 5  of 50 minutes each of a continuing education course during

 6  each biennium of a license period, as prescribed by the

 7  commission. Approval or denial of a specialty course must be

 8  based on the extent to which the course content focuses on

 9  real estate issues relevant to the modern practice of real

10  estate by a real estate licensee, including technology used in

11  the real estate industry. The commission may accept as a

12  substitute for such continuing education course, on a

13  classroom-hour-for-classroom-hour basis, any satisfactorily

14  completed education course that the commission finds is

15  adequate to educate licensees within the intent of this

16  section, including an approved distance learning course.

17  However, the commission may not require, for the purpose of

18  satisfactorily completing an approved correspondence or

19  distance learning course, a written examination that is to be

20  taken at a centralized location and is to be monitored.

21         (2)  The department shall adopt rules establishing a

22  procedure for the renewal of licenses at least every 4 years.

23         (3)  Any license that which is not renewed at the end

24  of the license period prescribed by the department shall

25  automatically revert to involuntarily inactive status.  Such

26  license may subsequently be renewed only if the licensee meets

27  the other qualifications specified in s. 475.183.

28         (4)  Sixty days before prior to the end of the license

29  period and automatic reversion of a license to inactive

30  status, the department shall mail a notice of renewal and

31  possible reversion to the last known address of the licensee.

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 1         Section 11.  Section 475.215, Florida Statutes, is

 2  amended to read:

 3         475.215  Multiple licenses.--

 4         (1)  A licensed broker may be issued upon request

 5  additional licenses as a broker, but not as a sales associate

 6  salesperson or as a broker associate broker-salesperson,

 7  whenever it is clearly shown that the requested additional

 8  licenses are necessary to the conduct of real estate brokerage

 9  business and that the additional licenses will not be used in

10  a manner likely to be prejudicial to any person, including a

11  licensee under this chapter.

12         (2)  A sales associate salesperson or broker associate

13  broker-salesperson shall have no more than one registered

14  employer at any one time.

15         Section 12.  Subsection (1) of section 475.22, Florida

16  Statutes, is amended to read:

17         475.22  Broker to maintain office and sign at entrance

18  of office; registered office outside state; broker required to

19  cooperate in investigation.--

20         (1)  Each active broker shall maintain an office, which

21  shall consist of at least one enclosed room in a building of

22  stationary construction. Each active broker shall maintain a

23  sign on or about the entrance of her or his principal office

24  and each branch office, which sign may be easily observed and

25  read by any person about to enter such office and shall be of

26  such form and minimum dimensions as shall be prescribed by the

27  commission. Each sign must contain the name of the broker,

28  together with the trade name, if any. For a partnership or

29  corporation, the sign must contain the name of the firm or

30  corporation or trade name of the firm or corporation, together

31  with the name of at least one of the brokers. At a minimum,

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 1  the words "licensed real estate broker" or "lic. real estate

 2  broker" must appear on the office entrance signs.

 3         Section 13.  Section 475.23, Florida Statutes, is

 4  amended to read:

 5         475.23  License to expire on change of address.--A

 6  license shall cease to be in force whenever a broker changes

 7  her or his business address, a real estate school operating

 8  under a permit issued pursuant to s. 475.451 changes its

 9  business address, or a sales associate salesperson working for

10  a broker or an instructor working for a real estate school

11  changes employer.  The licensee shall notify the commission of

12  the change no later than 10 days after the change, on a form

13  provided by the commission. When a broker or a real estate

14  school changes business address, the brokerage firm or school

15  permitholder must file with the commission a notice of the

16  change of address, along with the names of any sales

17  associates or instructors who are no longer employed by the

18  brokerage or school. Such notification shall also fulfill the

19  change of address notification requirements for sales

20  associates who remain employed by the brokerage and

21  instructors who remain employed by the school.

22         Section 14.  Subsection (1) of section 475.25, Florida

23  Statutes, is amended, and subsections (5), (6), and (7) are

24  added to that section, to read:

25         475.25  Discipline.--

26         (1)  The commission may deny an application for

27  licensure, registration, or permit, or renewal thereof; may

28  place a licensee, registrant, or permittee on probation; may

29  suspend a license, registration, or permit for a period not

30  exceeding 10 years; may revoke a license, registration, or

31  permit; may impose an administrative fine not to exceed $1,000

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 1  for each count or separate offense; and may issue a reprimand,

 2  and any or all of the foregoing, if it finds that the

 3  licensee, registrant, permittee, or applicant:

 4         (a)  Has violated any provision of s. 455.227(1) or s.

 5  475.42. However, licensees under this part are exempt from the

 6  provisions of s. 455.227(1)(i).

 7         (b)  Has been guilty of fraud, misrepresentation,

 8  concealment, false promises, false pretenses, dishonest

 9  dealing by trick, scheme, or device, culpable negligence, or

10  breach of trust in any business transaction in this state or

11  any other state, nation, or territory; has violated a duty

12  imposed upon her or him by law or by the terms of a listing

13  contract, written, oral, express, or implied, in a real estate

14  transaction; has aided, assisted, or conspired with any other

15  person engaged in any such misconduct and in furtherance

16  thereof; or has formed an intent, design, or scheme to engage

17  in any such misconduct and committed an overt act in

18  furtherance of such intent, design, or scheme.  It is

19  immaterial to the guilt of the licensee that the victim or

20  intended victim of the misconduct has sustained no damage or

21  loss; that the damage or loss has been settled and paid after

22  discovery of the misconduct; or that such victim or intended

23  victim was a customer or a person in confidential relation

24  with the licensee or was an identified member of the general

25  public.

26         (c)  Has advertised property or services in a manner

27  which is fraudulent, false, deceptive, or misleading in form

28  or content. The commission may adopt rules defining methods of

29  advertising that violate this paragraph.

30         (d)1.  Has failed to account or deliver to any person,

31  including a licensee under this chapter, at the time which has

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 1  been agreed upon or is required by law or, in the absence of a

 2  fixed time, upon demand of the person entitled to such

 3  accounting and delivery, any personal property such as money,

 4  fund, deposit, check, draft, abstract of title, mortgage,

 5  conveyance, lease, or other document or thing of value,

 6  including a share of a real estate commission if a civil

 7  judgment relating to the practice of the licensee's profession

 8  has been obtained against the licensee and said judgment has

 9  not been satisfied in accordance with the terms of the

10  judgment within a reasonable time, or any secret or illegal

11  profit, or any divisible share or portion thereof, which has

12  come into the licensee's hands and which is not the licensee's

13  property or which the licensee is not in law or equity

14  entitled to retain under the circumstances. However, if the

15  licensee, in good faith, entertains doubt as to what person is

16  entitled to the accounting and delivery of the escrowed

17  property, or if conflicting demands have been made upon the

18  licensee for the escrowed property, which property she or he

19  still maintains in her or his escrow or trust account, the

20  licensee shall promptly notify the commission of such doubts

21  or conflicting demands and shall promptly:

22         a.  Request that the commission issue an escrow

23  disbursement order determining who is entitled to the escrowed

24  property;

25         b.  With the consent of all parties, submit the matter

26  to arbitration;

27         c.  By interpleader or otherwise, seek adjudication of

28  the matter by a court; or

29         d.  With the written consent of all parties, submit the

30  matter to mediation.  The department may conduct mediation or

31  may contract with public or private entities for mediation

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 1  services. However, the mediation process must be successfully

 2  completed within 90 days following the last demand or the

 3  licensee shall promptly employ one of the other escape

 4  procedures contained in this section. Payment for mediation

 5  will be as agreed to in writing by the parties. The department

 6  may adopt rules to implement this section.

 7  

 8  If the licensee promptly employs one of the escape procedures

 9  contained herein, and if she or he abides by the order or

10  judgment resulting therefrom, no administrative complaint may

11  be filed against the licensee for failure to account for,

12  deliver, or maintain the escrowed property. Under certain

13  circumstances, which the commission shall set forth by rule, a

14  licensee may disburse property from the licensee's escrow

15  account without notifying the commission or employing one of

16  the procedures listed in sub-subparagraphs a.-d. If the buyer

17  of a residential condominium unit delivers to a licensee

18  written notice of the buyer's intent to cancel the contract

19  for sale and purchase, as authorized by s. 718.503, or if the

20  buyer of real property in good faith fails to satisfy the

21  terms in the financing clause of a contract for sale and

22  purchase, the licensee may return the escrowed property to the

23  purchaser without notifying the commission or initiating any

24  of the procedures listed in sub-subparagraphs a.-d.

25         2.  Has failed to deposit money in an escrow account

26  when the licensee is the purchaser of real estate under a

27  contract where the contract requires the purchaser to place

28  deposit money in an escrow account to be applied to the

29  purchase price if the sale is consummated.

30  

31  

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 1         (e)  Has violated any of the provisions of this chapter

 2  or any lawful order or rule made or issued under the

 3  provisions of this chapter or chapter 455.

 4         (f)  Has been convicted or found guilty of, or entered

 5  a plea of nolo contendere to, regardless of adjudication, a

 6  crime in any jurisdiction which directly relates to the

 7  activities of a licensed broker or sales associate

 8  salesperson, or involves moral turpitude or fraudulent or

 9  dishonest dealing. The record of a conviction certified or

10  authenticated in such form as to be admissible in evidence

11  under the laws of the state shall be admissible as prima facie

12  evidence of such guilt.

13         (g)  Has had a broker's or sales associate's

14  salesperson's license revoked, suspended, or otherwise acted

15  against, or has had an application for such licensure denied,

16  by the real estate licensing agency of another state,

17  territory, or country.

18         (h)  Has shared a commission with, or paid a fee or

19  other compensation to, a person not properly licensed as a

20  broker, broker associate broker-salesperson, or sales

21  associate salesperson under the laws of this state, for the

22  referral of real estate business, clients, prospects, or

23  customers, or for any one or more of the services set forth in

24  s. 475.01(1)(a). For the purposes of this section, it is

25  immaterial that the person to whom such payment or

26  compensation is given made the referral or performed the

27  service from within this state or elsewhere; however, a

28  licensed broker of this state may pay a referral fee or share

29  a real estate brokerage commission with a broker licensed or

30  registered under the laws of a foreign state so long as the

31  foreign broker does not violate any law of this state.

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 1         (i)  Has become temporarily incapacitated from acting

 2  as a broker or sales associate salesperson with safety to

 3  investors or those in a fiduciary relation with her or him

 4  because of drunkenness, use of drugs, or temporary mental

 5  derangement; but suspension of a license in such a case shall

 6  be only for the period of such incapacity.

 7         (j)  Has rendered an opinion that the title to any

 8  property sold is good or merchantable, except when correctly

 9  based upon a current opinion of a licensed attorney at law, or

10  has failed to advise a prospective purchaser to consult her or

11  his attorney on the merchantability of the title or to obtain

12  title insurance.

13         (k)  Has failed, if a broker, to immediately place,

14  upon receipt, any money, fund, deposit, check, or draft

15  entrusted to her or him by any person dealing with her or him

16  as a broker in escrow with a title company, banking

17  institution, credit union, or savings and loan association

18  located and doing business in this state, or to deposit such

19  funds in a trust or escrow account maintained by her or him

20  with some bank, credit union, or savings and loan association

21  located and doing business in this state, wherein the funds

22  shall be kept until disbursement thereof is properly

23  authorized; or has failed, if a sales associate salesperson,

24  to immediately place with her or his registered employer any

25  money, fund, deposit, check, or draft entrusted to her or him

26  by any person dealing with her or him as agent of the

27  registered employer. The commission shall establish rules to

28  provide for records to be maintained by the broker and the

29  manner in which such deposits shall be made. A broker may

30  place and maintain up to $5,000 of personal or brokerage funds

31  in the broker's property management escrow account and up to

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 1  $1,000 of personal or brokerage funds in the broker's sales

 2  escrow account. A broker shall be provided a reasonable amount

 3  of time to correct escrow errors if there is no shortage of

 4  funds and such errors pose no significant threat to

 5  economically harm the public. It is the intent of the

 6  Legislature that, in the event of legal proceedings concerning

 7  a broker's escrow account, the disbursement of escrowed funds

 8  not be delayed due to any dispute over the personal or

 9  brokerage funds that may be present in the escrow account.

10  With the written consent of the parties, a broker may invest

11  escrow moneys in:

12         1.  Bonds, notes, or other obligations of the United

13  States or those guaranteed by the United States or for which

14  the credit of the United States is pledged for the payment of

15  the principal and interest or dividends thereof.

16         2.  State bonds pledging the full faith and credit of

17  the state and revenue bonds additionally secured by the full

18  faith and credit of the state.

19         3.  Savings accounts in, or certificates of deposit of,

20  any bank, savings bank, or savings and loan association

21  incorporated under the laws of this state or organized under

22  the laws of the United States doing business and situated in

23  this state, the accounts of which are insured by the Federal

24  Government or an agency thereof.

25         4.  Notes, bonds, and other obligations of agencies of

26  the United States.

27         5.  Commercial paper of prime quality of the highest

28  letter and numerical rating as provided for by at least one

29  nationally recognized rating service.

30         6.  Mortgage securities which represent participation

31  in or are collateralized by mortgage loans secured by real

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 1  property. Such securities must be issued by an agency of or

 2  enterprise sponsored by the United States Government,

 3  including, but not limited to, the Government National

 4  Mortgage Association, the Federal National Mortgage

 5  Association, and the Federal Home Loan Mortgage Corporation.

 6         (l)  Has made or filed a report or record which the

 7  licensee knows to be false, has willfully failed to file a

 8  report or record required by state or federal law, has

 9  willfully impeded or obstructed such filing, or has induced

10  another person to impede or obstruct such filing; but such

11  reports or records shall include only those which are signed

12  in the capacity of a licensed broker or sales associate

13  salesperson.

14         (m)  Has obtained a license by means of fraud,

15  misrepresentation, or concealment.

16         (n)  Is confined in any county jail, postadjudication;

17  is confined in any state or federal prison or mental

18  institution; is under home confinement ordered in lieu of

19  institutional confinement; or, through mental disease or

20  deterioration, can no longer safely be entrusted to

21  competently deal with the public.

22         (o)  Has been found guilty, for a second time, of any

23  misconduct that warrants her or his suspension or has been

24  found guilty of a course of conduct or practices which show

25  that she or he is so incompetent, negligent, dishonest, or

26  untruthful that the money, property, transactions, and rights

27  of investors, or those with whom she or he may sustain a

28  confidential relation, may not safely be entrusted to her or

29  him.

30  

31  

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 1         (p)  Has failed to inform the commission in writing

 2  within 30 days after pleading guilty or nolo contendere to, or

 3  being convicted or found guilty of, any felony.

 4         (q)  Has violated any provision of s. 475.2755 or s.

 5  475.278, including the duties owed under those sections.

 6         (r)  Has failed in any written listing agreement to

 7  include a definite expiration date, description of the

 8  property, price and terms, fee or commission, and a proper

 9  signature of the principal(s); and has failed to give the

10  principal(s) a legible, signed, true and correct copy of the

11  listing agreement within 24 hours of obtaining the written

12  listing agreement.  The written listing agreement shall

13  contain no provision requiring the person signing the listing

14  to notify the broker of the intention to cancel the listing

15  after such definite expiration date.

16         (s)  Has had a registration suspended, revoked, or

17  otherwise acted against in any jurisdiction. The record of the

18  disciplinary action certified or authenticated in such form as

19  to be admissible in evidence under the laws of the state shall

20  be admissible as prima facie evidence of such disciplinary

21  action.

22         (t)  Has violated any standard for the development or

23  communication of a real estate appraisal or other provision of

24  the Uniform Standards of Professional Appraisal Practice, as

25  defined in s. 475.611, as approved and adopted by the

26  Appraisal Standards Board of the Appraisal Foundation, as

27  defined in s. 475.611. This paragraph does not apply to a real

28  estate broker or sales associate salesperson who, in the

29  ordinary course of business, performs a comparative market

30  analysis, gives a broker price opinion, or gives an opinion of

31  value of real estate. However, in no event may this

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 1  comparative market analysis, broker price opinion, or opinion

 2  of value of real estate be referred to as an appraisal, as

 3  defined in s. 475.611.

 4         (5)  An administrative complaint against a broker or

 5  broker associate must be filed within 5 years after the time

 6  of the act giving rise to the complaint or within 5 years

 7  after the time the act is discovered or should have been

 8  discovered with the exercise of due diligence.

 9         (6)  The commission shall promptly notify the

10  licensee's broker or employer, as defined in this part, in

11  writing, any time the commission places a licensee on

12  probation, reprimands a licensee, suspends or revokes the

13  license of a licensee, imposes an administrative fine against

14  a licensee, or takes any other final disciplinary action

15  against a licensee.

16         (7)  The commission shall promptly report to the proper

17  prosecuting authority any criminal violation of any statute

18  relating to the practice of a real estate profession regulated

19  by the commission.

20         Section 15.  Section 475.2755, Florida Statutes, is

21  amended to read:

22         475.2755  Designated sales associate salesperson.--

23         (1)  For purposes of this part, in any real estate

24  transaction other than a residential sale as defined in s.

25  475.278(5)(a), and where the buyer and seller have assets of

26  $1 million or more, the broker at the request of the customers

27  may designate sales associates salespersons to act as single

28  agents for different customers in the same transaction. Such

29  designated sales associates salespersons shall have the duties

30  of a single agent as outlined in s. 475.278(3), including

31  disclosure requirements in s. 475.278(3)(b) and (c). In

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 1  addition to disclosure requirements in s. 475.278(3)(b) and

 2  (c), the buyer and seller as customers shall both sign

 3  disclosures stating that their assets meet the threshold

 4  described in this subsection and requesting that the broker

 5  use the designated sales associate salesperson form of

 6  representation. In lieu of the transition disclosure

 7  requirement in s. 475.278(3)(c)2., the required disclosure

 8  notice shall include the following:

 9  

10  FLORIDA LAW PROHIBITS A DESIGNATED SALES ASSOCIATE SALESPERSON

11  FROM DISCLOSING, EXCEPT TO THE BROKER OR PERSONS SPECIFIED BY

12  THE BROKER, INFORMATION MADE CONFIDENTIAL BY REQUEST OR AT THE

13  INSTRUCTION OF THE CUSTOMER THE DESIGNATED SALES ASSOCIATE

14  SALESPERSON IS REPRESENTING. HOWEVER, FLORIDA LAW ALLOWS A

15  DESIGNATED SALES ASSOCIATE SALESPERSON TO DISCLOSE INFORMATION

16  ALLOWED TO BE DISCLOSED OR REQUIRED TO BE DISCLOSED BY LAW AND

17  ALSO ALLOWS A DESIGNATED SALES ASSOCIATE SALESPERSON TO

18  DISCLOSE TO HIS OR HER BROKER, OR PERSONS SPECIFIED BY THE

19  BROKER, CONFIDENTIAL INFORMATION OF A CUSTOMER FOR THE PURPOSE

20  OF SEEKING ADVICE OR ASSISTANCE FOR THE BENEFIT OF THE

21  CUSTOMER IN REGARD TO A TRANSACTION. FLORIDA LAW REQUIRES THAT

22  THE BROKER MUST HOLD THIS INFORMATION CONFIDENTIAL AND MAY NOT

23  USE SUCH INFORMATION TO THE DETRIMENT OF THE OTHER PARTY.

24         (2)  For purposes of this section, the term "buyer"

25  means a transferee or lessee in a real property transaction,

26  and the term "seller" means the transferor or lessor in a real

27  property transaction.

28         Section 16.  Section 475.278, Florida Statutes, is

29  amended to read:

30         475.278  Authorized brokerage relationships;

31  presumption of transaction brokerage; required disclosures.--

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 1         (1)  BROKERAGE RELATIONSHIPS.--

 2         (a)  Authorized brokerage relationships.--A real estate

 3  licensee in this state may enter into a brokerage relationship

 4  as either a single agent or as a transaction broker or as a

 5  single agent with potential buyers and sellers. A real estate

 6  licensee may not operate as a disclosed or nondisclosed dual

 7  agent. As used in this section, the term "dual agent" means a

 8  broker who represents as a fiduciary both the prospective

 9  buyer and the prospective seller in a real estate transaction.

10  Once a brokerage relationship is established, This part does

11  not prevent a licensee from changing from one brokerage

12  relationship to the other as long as the buyer or the seller,

13  or both, gives consent as required by subparagraph (3)(c)2.

14  before the change and the appropriate disclosure of duties as

15  provided in this part is made to the buyer or seller. This

16  part does not require a customer to enter into a brokerage

17  relationship with any real estate licensee.

18         (b)  Presumption of transaction brokerage.--It shall be

19  presumed that all licensees are operating as transaction

20  brokers unless a single agent or no brokerage relationship is

21  established, in writing, with a customer.

22         (2)  TRANSACTION BROKER RELATIONSHIP.--

23         (a)  Transaction broker-duties of limited

24  representation.--A transaction broker provides a limited form

25  of representation to a buyer, a seller, or both in a real

26  estate transaction but does not represent either in a

27  fiduciary capacity or as a single agent. The duties of the

28  real estate licensee in this limited form of representation

29  include the following:

30         1.  Dealing honestly and fairly;

31         2.  Accounting for all funds;

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 1         3.  Using skill, care, and diligence in the

 2  transaction;

 3         4.  Disclosing all known facts that materially affect

 4  the value of residential real property and are not readily

 5  observable to the buyer;

 6         5.  Presenting all offers and counteroffers in a timely

 7  manner, unless a party has previously directed the licensee

 8  otherwise in writing;

 9         6.  Limited confidentiality, unless waived in writing

10  by a party. This limited confidentiality will prevent

11  disclosure that the seller will accept a price less than the

12  asking or listed price, that the buyer will pay a price

13  greater than the price submitted in a written offer, of the

14  motivation of any party for selling or buying property, that a

15  seller or buyer will agree to financing terms other than those

16  offered, or of any other information requested by a party to

17  remain confidential; and

18         7.  Any additional duties that are mutually agreed to

19  with a party.

20         (b)  Disclosure requirements.--Duties of a transaction

21  broker must be fully described and disclosed in writing to a

22  buyer or seller either as a separate and distinct disclosure

23  document or included as part of another document such as a

24  listing agreement or agreement for representation. The

25  disclosure must be made before, or at the time of, entering

26  into a listing agreement or an agreement for representation or

27  before the showing of property, whichever occurs first. When

28  incorporated into other documents, the required notice must be

29  of the same size type, or larger, as other provisions of the

30  document and must be conspicuous in its placement so as to

31  advise customers of the duties of limited representation,

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 1  except that the first sentence of the information identified

 2  in paragraph (c) must be printed in uppercase and bold type.

 3  This paragraph expires July 1, 2008.

 4         (c)  Contents of disclosure.--The required notice given

 5  under paragraph (b) must include the following information in

 6  the following form:

 7  

 8                         IMPORTANT NOTICE

 9  

10  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES PROVIDE THIS

11  NOTICE TO POTENTIAL SELLERS AND BUYERS OF REAL ESTATE.

12  

13  You should not assume that any real estate broker or

14  salesperson represents you unless you agree to engage a real

15  estate licensee in an authorized brokerage relationship,

16  either as a single agent or as a transaction broker. You are

17  advised not to disclose any information you want to be held in

18  confidence until you make a decision on representation.

19  

20                    TRANSACTION BROKER NOTICE

21  

22  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES OPERATING AS

23  TRANSACTION BROKERS DISCLOSE TO BUYERS AND SELLERS THEIR ROLE

24  AND DUTIES IN PROVIDING A LIMITED FORM OF REPRESENTATION.

25  

26  As a transaction broker, ____________________ (insert name of

27  Real Estate Firm and its Associates), provides to you a

28  limited form of representation that includes the following

29  duties:

30         1.  Dealing honestly and fairly;

31         2.  Accounting for all funds;

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 1         3.  Using skill, care, and diligence in the

 2  transaction;

 3         4.  Disclosing all known facts that materially affect

 4  the value of residential real property and are not readily

 5  observable to the buyer;

 6         5.  Presenting all offers and counteroffers in a timely

 7  manner, unless a party has previously directed the licensee

 8  otherwise in writing;

 9         6.  Limited confidentiality, unless waived in writing

10  by a party. This limited confidentiality will prevent

11  disclosure that the seller will accept a price less than the

12  asking or listed price, that the buyer will pay a price

13  greater than the price submitted in a written offer, of the

14  motivation of any party for selling or buying property, that a

15  seller or buyer will agree to financing terms other than those

16  offered, or of any other information requested by a party to

17  remain confidential; and

18         7.  Any additional duties that are entered into by this

19  or by separate written agreement.

20  

21  Limited representation means that a buyer or seller is not

22  responsible for the acts of the licensee. Additionally,

23  parties are giving up their rights to the undivided loyalty of

24  the licensee. This aspect of limited representation allows a

25  licensee to facilitate a real estate transaction by assisting

26  both the buyer and the seller, but a licensee will not work to

27  represent one party to the detriment of the other party when

28  acting as a transaction broker to both parties.

29  __________ Date               ______________________________  

30                                Signature  

31  

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 1                                ______________________________  

 2                                Signature

 3  

 4  This paragraph expires July 1, 2008.

 5         (3)  SINGLE AGENT RELATIONSHIP.--

 6         (a)  Single agent-duties.--The duties of a real estate

 7  licensee owed to a buyer or seller who engages the real estate

 8  licensee as a single agent include the following:

 9         1.  Dealing honestly and fairly;

10         2.  Loyalty;

11         3.  Confidentiality;

12         4.  Obedience;

13         5.  Full disclosure;

14         6.  Accounting for all funds;

15         7.  Skill, care, and diligence in the transaction;

16         8.  Presenting all offers and counteroffers in a timely

17  manner, unless a party has previously directed the licensee

18  otherwise in writing; and

19         9.  Disclosing all known facts that materially affect

20  the value of residential real property and are not readily

21  observable.

22         (b)  Disclosure requirements.--

23         1.  Single agent disclosure.--Duties of a single agent

24  must be fully described and disclosed in writing to a buyer or

25  seller either as a separate and distinct disclosure document

26  or included as part of another document such as a listing

27  agreement or other agreement for representation. The

28  disclosure must be made before, or at the time of, entering

29  into a listing agreement or an agreement for representation or

30  before the showing of property, whichever occurs first. When

31  incorporated into other documents, the required notice must be

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 1  of the same size type, or larger, as other provisions of the

 2  document and must be conspicuous in its placement so as to

 3  advise customers of the duties of a single agent, except that

 4  the first sentence of the information identified in paragraph

 5  (c) must be printed in uppercase and bold type.

 6         2.  Transition to transaction broker disclosure.--A

 7  single agent relationship may be changed to a transaction

 8  broker relationship at any time during the relationship

 9  between an agent and principal, provided the agent first

10  obtains the principal's written consent to the gives the

11  disclosure required under paragraph (2)(b) and the principal

12  gives to the agent consent as required under subparagraph

13  (c)2. before a change in relationship. This disclosure must be

14  in writing to the principal either as a separate and distinct

15  document or included as part of other documents such as a

16  listing agreement or other agreements for representation. When

17  incorporated into other documents, the required notice must be

18  of the same size type, or larger, as other provisions of the

19  document and must be conspicuous in its placement so as to

20  advise customers of the duties of limited representation,

21  except that the first sentence of the information identified

22  in subparagraph (c)2. must be printed in uppercase and bold

23  type.

24         (c)  Contents of disclosure.--

25         1.  Single agent duties disclosure.--The notice

26  required under subparagraph (b)1. must include the following

27  information in the following form:

28  

29                         IMPORTANT NOTICE

30  

31  

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 1  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES PROVIDE THIS

 2  NOTICE TO POTENTIAL SELLERS AND BUYERS OF REAL ESTATE.

 3  

 4  You should not assume that any real estate broker or

 5  salesperson represents you unless you agree to engage a real

 6  estate licensee in an authorized brokerage relationship,

 7  either as a single agent or as a transaction broker. You are

 8  advised not to disclose any information you want to be held in

 9  confidence until you make a decision on representation.

10  

11                       SINGLE AGENT NOTICE

12  

13  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES OPERATING AS

14  SINGLE AGENTS DISCLOSE TO BUYERS AND SELLERS THEIR DUTIES.

15  

16         As a single agent, ____________________ (insert name of

17  Real Estate Entity and its Associates) owe to you the

18  following duties:

19         1.  Dealing honestly and fairly;

20         2.  Loyalty;

21         3.  Confidentiality;

22         4.  Obedience;

23         5.  Full disclosure;

24         6.  Accounting for all funds;

25         7.  Skill, care, and diligence in the transaction;

26         8.  Presenting all offers and counteroffers in a timely

27  manner, unless a party has previously directed the licensee

28  otherwise in writing; and

29         9.  Disclosing all known facts that materially affect

30  the value of residential real property and are not readily

31  observable.

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 1  __________ Date               ______________________________  

 2                                Signature  

 3         2.  Transition disclosure.--To gain the principal's

 4  written consent to a change in relationship, a licensee must

 5  use the following disclosure The notice required under

 6  subparagraph (b)2. must include the following information in

 7  the following form as well as the information required in

 8  paragraph (2)(c):

 9  

10                     CONSENT TO TRANSITION TO

11                        TRANSACTION BROKER

12  

13  FLORIDA LAW ALLOWS REAL ESTATE LICENSEES WHO REPRESENT A BUYER

14  OR SELLER AS A SINGLE AGENT TO CHANGE FROM A SINGLE AGENT

15  RELATIONSHIP TO A TRANSACTION BROKERAGE RELATIONSHIP IN ORDER

16  FOR THE LICENSEE TO ASSIST BOTH PARTIES IN A REAL ESTATE

17  TRANSACTION BY PROVIDING A LIMITED FORM OF REPRESENTATION TO

18  BOTH THE BUYER AND THE SELLER. THIS CHANGE IN RELATIONSHIP

19  CANNOT OCCUR WITHOUT YOUR PRIOR WRITTEN CONSENT.

20  

21  As a transaction broker, ____________________ (insert name of

22  Real Estate Firm and its Associates), provides to you a

23  limited form of representation that includes the following

24  duties:

25         1.  Dealing honestly and fairly;

26         2.  Accounting for all funds;

27         3.  Using skill, care, and diligence in the

28  transaction;

29         4.  Disclosing all known facts that materially affect

30  the value of residential real property and are not readily

31  observable to the buyer;

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 1         5.  Presenting all offers and counteroffers in a timely

 2  manner, unless a party has previously directed the licensee

 3  otherwise in writing;

 4         6.  Limited confidentiality, unless waived in writing

 5  by a party. This limited confidentiality will prevent

 6  disclosure that the seller will accept a price less than the

 7  asking or listed price, that the buyer will pay a price

 8  greater than the price submitted in a written offer, of the

 9  motivation of any party for selling or buying property, that a

10  seller or buyer will agree to financing terms other than those

11  offered, or of any other information requested by a party to

12  remain confidential; and

13         7.  Any additional duties that are entered into by this

14  or by separate written agreement.

15  

16  Limited representation means that a buyer or seller is not

17  responsible for the acts of the licensee. Additionally,

18  parties are giving up their rights to the undivided loyalty of

19  the licensee. This aspect of limited representation allows a

20  licensee to facilitate a real estate transaction by assisting

21  both the buyer and the seller, but a licensee will not work to

22  represent one party to the detriment of the other party when

23  acting as a transaction broker to both parties.

24  

25  __________I agree that my agent may assume the role and duties

26  of a transaction broker. [must be initialed or signed]

27  

28         (4)  NO BROKERAGE RELATIONSHIP.--

29         (a)  No brokerage relationship-duties.--A real estate

30  licensee owes to a potential seller or buyer with whom the

31  licensee has no brokerage relationship the following duties:

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 1         1.  Dealing honestly and fairly;

 2         2.  Disclosing all known facts that materially affect

 3  the value of the residential real property which are not

 4  readily observable to the buyer; and

 5         3.  Accounting for all funds entrusted to the licensee.

 6         (b)  Disclosure requirements.--Duties of a licensee who

 7  has no brokerage relationship with a buyer or seller must be

 8  fully described and disclosed in writing to the buyer or

 9  seller. The disclosure must be made before the showing of

10  property. When incorporated into other documents, the required

11  notice must be of the same size type, or larger, as other

12  provisions of the document and must be conspicuous in its

13  placement so as to advise customers of the duties of a

14  licensee that has no brokerage relationship with a buyer or

15  seller, except that the first sentence of the information

16  identified in paragraph (c) must be printed in uppercase bold

17  type.

18         (c)  Contents of disclosure.--The notice required under

19  paragraph (b) must include the following information in the

20  following form:

21  

22                         IMPORTANT NOTICE

23  

24  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES PROVIDE THIS

25  NOTICE TO POTENTIAL SELLERS AND BUYERS OF REAL ESTATE.

26  

27  You should not assume that any real estate broker or

28  salesperson represents you unless you agree to engage a real

29  estate licensee in an authorized brokerage relationship,

30  either as a single agent or as a transaction broker. You are

31  

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 1  advised not to disclose any information you want to be held in

 2  confidence until you decide on representation.

 3  

 4                 NO BROKERAGE RELATIONSHIP NOTICE

 5  

 6  FLORIDA LAW REQUIRES THAT REAL ESTATE LICENSEES WHO HAVE NO

 7  BROKERAGE RELATIONSHIP WITH A POTENTIAL SELLER OR BUYER

 8  DISCLOSE THEIR DUTIES TO SELLERS AND BUYERS.

 9  

10         As a real estate licensee who has no brokerage

11  relationship with you, __________(insert name of Real Estate

12  Entity and its Associates)_____ owe to you the following

13  duties:

14  

15         1.  Dealing honestly and fairly;

16         2.  Disclosing all known facts that materially affect

17  the value of residential real property which are not readily

18  observable to the buyer.

19         3.  Accounting for all funds entrusted to the licensee.

20  

21         ...  (Date)  ......  (Signature)  ...

22         (5)  APPLICABILITY.--

23         (a)  Residential sales.--The real estate licensee

24  disclosure requirements of this section apply to all

25  residential sales. As used in this subsection, the term

26  "residential sale" means the sale of improved residential

27  property of four units or fewer, the sale of unimproved

28  residential property intended for use of four units or fewer,

29  or the sale of agricultural property of 10 acres or fewer.

30         (b)  Disclosure limitations.--

31  

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 1         1.  The real estate disclosure requirements of this

 2  section do not apply when a licensee knows that the potential

 3  seller or buyer is represented by a single agent or a

 4  transaction broker; or when an owner is selling new

 5  residential units built by the owner and the circumstances or

 6  setting should reasonably inform the potential buyer that the

 7  owner's employee or single agent is acting on behalf of the

 8  owner, whether because of the location of the sales office or

 9  because of office signage or placards or identification badges

10  worn by the owner's employee or single agent.

11         2.  The real estate licensee disclosure requirements of

12  this section do not apply to: nonresidential transactions; the

13  rental or leasing of real property, unless an option to

14  purchase all or a portion of the property improved with four

15  or fewer residential units is given; a bona fide "open house"

16  or model home showing that does not involve eliciting

17  confidential information, the execution of a contractual offer

18  or an agreement for representation, or negotiations concerning

19  price, terms, or conditions of a potential sale; unanticipated

20  casual conversations between a licensee and a seller or buyer

21  which do not involve eliciting confidential information, the

22  execution of a contractual offer or agreement for

23  representation, or negotiations concerning price, terms, or

24  conditions of a potential sale; responding to general factual

25  questions from a potential buyer or seller concerning

26  properties that have been advertised for sale; situations in

27  which a licensee's communications with a potential buyer or

28  seller are limited to providing general factual information,

29  oral or written, about the qualifications, background, and

30  services of the licensee or the licensee's brokerage firm;

31  auctions; appraisals; and dispositions of any interest in

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 1  business enterprises or business opportunities, except for

 2  property with four or fewer residential units.

 3         Section 17.  Subsection (1) of section 475.31, Florida

 4  Statutes, is amended to read:

 5         475.31  Final orders.--

 6         (1)  An order revoking or suspending the license of a

 7  broker shall automatically cause cancel the licenses of all

 8  sales associates and broker associates salespersons registered

 9  with the broker, and, if a partnership or corporation, of all

10  members, officers, and directors thereof to become

11  involuntarily inactive, while the license of the broker is

12  inoperative or until new employment or connection is secured.

13         Section 18.  Section 475.37, Florida Statutes, is

14  amended to read:

15         475.37  Effect of reversal of order of court or

16  commission.--If the order of the court or commission denying a

17  license or taking any disciplinary action against a licensee

18  is finally reversed and set aside, the defendant shall be

19  restored to her or his rights and privileges as a broker or

20  sales associate salesperson as of the date of filing the

21  mandate or a copy thereof with the commission. The matters and

22  things alleged in the information shall not thereafter be

23  reexamined in any other proceeding concerning the licensure of

24  the defendant. If the inquiry concerned was in reference to an

25  application for licensure, the application shall stand

26  approved, and such application shall be remanded for further

27  proceedings according to law.

28         Section 19.  Section 475.41, Florida Statutes, is

29  amended to read:

30         475.41  Contracts of unlicensed person for commissions

31  invalid.--No contract for a commission or compensation for any

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 1  act or service enumerated in s. 475.01(3) is valid unless the

 2  broker or sales associate salesperson has complied with this

 3  chapter in regard to issuance and renewal of the license at

 4  the time the act or service was performed.

 5         Section 20.  Subsection (1) of section 475.42, Florida

 6  Statutes, is amended to read:

 7         475.42  Violations and penalties.--

 8         (1)  VIOLATIONS.--

 9         (a)  A No person may not shall operate as a broker or

10  sales associate salesperson without being the holder of a

11  valid and current active license therefor. Any person who

12  violates this paragraph commits a felony of the third degree,

13  punishable as provided in s. 775.082 or s. 775.083, or, if a

14  corporation, as provided in s. 775.083.

15         (b)  A No person licensed as a sales associate may not

16  salesperson shall operate as a broker or operate as a sales

17  associate salesperson for any person not registered as her or

18  his employer.

19         (c)  A No broker may not shall employ, or continue in

20  employment, any person as a sales associate salesperson who is

21  not the holder of a valid and current license as sales

22  associate salesperson; but a license as sales associate

23  salesperson may be issued to a person licensed as an active

24  broker, upon request and surrender of the license as broker,

25  without a fee in addition to that paid for the issuance of the

26  broker's active license.

27         (d)  A sales associate may not No salesperson shall

28  collect any money in connection with any real estate brokerage

29  transaction, whether as a commission, deposit, payment,

30  rental, or otherwise, except in the name of the employer and

31  with the express consent of the employer; and no real estate

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 1  sales associate salesperson, whether the holder of a valid and

 2  current license or not, shall commence or maintain any action

 3  for a commission or compensation in connection with a real

 4  estate brokerage transaction against any person except a

 5  person registered as her or his employer at the time the sales

 6  associate salesperson performed the act or rendered the

 7  service for which the commission or compensation is due.

 8         (e)  A No person may not shall violate any lawful order

 9  or rule of the commission which is binding upon her or him.

10         (f)  A No person may not shall commit any conduct or

11  practice set forth in s. 475.25(1)(b), (c), (d), or (h).

12         (g)  A No person may not shall make any false affidavit

13  or affirmation intended for use as evidence by or before the

14  commission or a member thereof, or by any of its authorized

15  representatives, nor may shall any person give false testimony

16  under oath or affirmation to or before the commission or any

17  member thereof in any proceeding authorized by this chapter.

18         (h)  A No person may not shall fail or refuse to appear

19  at the time and place designated in a subpoena issued with

20  respect to a violation of this chapter, unless because of

21  facts that are sufficient to excuse appearance in response to

22  a subpoena from the circuit court; nor may shall a person who

23  is present before the commission or a member thereof or one of

24  its authorized representatives acting under authority of this

25  chapter refuse to be sworn or to affirm or fail or refuse to

26  answer fully any question propounded by the commission, the

27  member, or such representative, or by any person by the

28  authority of such officer or appointee; nor may shall any

29  person, so being present, conduct herself or himself in a

30  disorderly, disrespectful, or contumacious manner.

31  

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 1         (i)  A No person may not shall obstruct or hinder in

 2  any manner the enforcement of this chapter or the performance

 3  of any lawful duty by any person acting under the authority of

 4  this chapter or interfere with, intimidate, or offer any bribe

 5  to any member of the commission or any of its employees or any

 6  person who is, or is expected to be, a witness in any

 7  investigation or proceeding relating to a violation of this

 8  chapter.

 9         (j)  A No broker or sales associate may not salesperson

10  shall place, or cause to be placed, upon the public records of

11  any county, any contract, assignment, deed, will, mortgage,

12  affidavit, or other writing which purports to affect the title

13  of, or encumber, any real property if the same is known to her

14  or him to be false, void, or not authorized to be placed of

15  record, or not executed in the form entitling it to be

16  recorded, or the execution or recording whereof has not been

17  authorized by the owner of the property, maliciously or for

18  the purpose of collecting a commission, or to coerce the

19  payment of money to the broker or sales associate salesperson

20  or other person, or for any unlawful purpose.  However,

21  nothing in this paragraph shall be construed to prohibit a

22  broker or a sales associate salesperson from recording a

23  judgment rendered by a court of this state or to prohibit a

24  broker from placing a lien on a property where expressly

25  permitted by contractual agreement.

26         (k)  A No person may not shall operate as a broker

27  under a trade name without causing the trade name to be noted

28  in the records of the commission and placed on the person's

29  license, or so operate as a member of a partnership or as a

30  corporation or as an officer or manager thereof, unless such

31  

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 1  partnership or corporation is the holder of a valid current

 2  registration.

 3         (l)  A No person may not shall knowingly conceal any

 4  information relating to violations of this chapter.

 5         (m)  A No person may not shall undertake to list or

 6  sell one or more timeshare periods per year in one or more

 7  timeshare plans on behalf of any number of persons without

 8  first being the holder of a valid and current license as a

 9  broker or sales associate salesperson pursuant to this

10  chapter, except as provided in s. 475.011 and chapter 721.

11         (n)  A No broker or sales associate may not salesperson

12  shall enter into any listing or other agreement regarding her

13  or his services in connection with the resale of a timeshare

14  period unless the broker or sales associate salesperson fully

15  and fairly discloses all material aspects of the agreement to

16  the owner of the timeshare period and fully complies with the

17  provisions of s. 475.452.  Further, a no broker or sales

18  associate may not use salesperson shall utilize any form of

19  contract or purchase and sale agreement in connection with the

20  resale of a timeshare period unless the contract or purchase

21  and sale agreement fully and fairly discloses all material

22  aspects of the timeshare plan and the rights and obligations

23  of both buyer and seller. The commission is authorized to

24  adopt promulgate rules pursuant to chapter 120 as necessary to

25  implement, enforce, and interpret this paragraph.

26         (o)  A person may not disseminate or cause to be

27  disseminated by any means any false or misleading information

28  for the purpose of offering for sale, or for the purpose of

29  causing or inducing any other person to purchase, lease, or

30  rent, real estate located in the state or for the purpose of

31  

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 1  causing or inducing any other person to acquire an interest in

 2  the title to real estate located in the state.

 3         Section 21.  Section 475.423, Florida Statutes, is

 4  created to read:

 5         475.423  Property identification disclosure

 6  statement.--

 7         (1)(a)  Except as provided in subsection (2), this

 8  section applies to any transfer by sale, exchange, or

 9  installment land sale contract of residential, undeveloped, or

10  commercial land, wherein one party agrees to convey title to

11  real property to another party upon the satisfaction of

12  specified conditions set forth in the contract and which does

13  not require conveyance of title within 1 year after the date

14  of formation of the contract, lease with an option to

15  purchase, any other option to purchase, ground lease coupled

16  with improvements of any real property described in paragraph

17  (c), or residential stock cooperative, improved with or

18  consisting of not less than one or more than four dwelling

19  units.

20         (b)  The transferor or his or her agent is required by

21  one or more of the following to disclose the property's

22  location within an applicable zone:

23         1.  A person who is either acting as an agent for a

24  transferor of real property that is located within a special

25  flood hazard area, which is any type Zone "A" or "V" as

26  designated by the Federal Emergency Management Agency, or the

27  transferor, if he or she is acting without an agent, shall

28  disclose to any prospective transferee the fact that the

29  property is located within a special flood hazard area if:

30  

31  

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 1         a.  The transferor, or the transferor's agent, has

 2  actual knowledge that the property is within a special flood

 3  hazard area; or

 4         b.  Other readily available and officially adopted

 5  governmental information exists regarding the flood zone.

 6         2.  A person who is acting as an agent for a transferor

 7  of real property that is located on soils with very severe

 8  constraints for development, or the transferor, if he or she

 9  is acting without an agent, shall disclose to any prospective

10  transferee the fact that the property is located on soils with

11  very severe constraints for development pursuant to maps

12  issued by the United States Department of Agriculture or other

13  readily available and officially adopted governmental maps and

14  information if:

15         a.  The transferor, or the transferor's agent, has

16  actual knowledge that the property is on soils with very

17  severe constraints for development; or

18         b.  Other readily available and officially adopted

19  governmental information exists regarding the soils with very

20  severe constraints for development.

21         3.  A person who is acting as an agent for a transferor

22  of real property that is located in an area impacted by

23  sinkhole activity, or the transferor if he or she is acting

24  without an agent, shall disclose to any prospective transferee

25  the fact that the property is located in an area impacted by

26  sinkhole activity pursuant to readily available and officially

27  adopted governmental maps and information if:

28         a.  The transferor, or the transferor's agent, has

29  actual knowledge that the property is in an area impacted by

30  sinkhole activity; or

31  

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 1         b.  Other readily available and officially adopted

 2  governmental information exists regarding sinkhole activity.

 3         4.  A person who is acting as an agent for a transferor

 4  of real property that is located within one quarter of a mile

 5  of a wellhead protection area, or the transferor if he or she

 6  is acting without an agent, shall disclose to any prospective

 7  transferee the fact that the property is located within one

 8  quarter of a mile of a wellhead protection area according to

 9  maps issued by the Department of Environmental Protection or a

10  water management district or other readily available and

11  officially adopted governmental maps and information if:

12         a.  The transferor, or the transferor's agent, has

13  actual knowledge that the property is located within one

14  quarter of a mile of a wellhead protection area; or

15         b.  Other readily available and officially adopted

16  governmental information exists regarding a wellhead

17  protection area.

18         5.  A person who is acting as an agent for a transferor

19  of real property that is located in a priority wetland zone,

20  or the transferor if he or she is acting without an agent,

21  shall disclose to any prospective transferee the fact that the

22  property is located in a priority wetland zone pursuant to

23  maps issued by the Fish and Wildlife Conservation Commission

24  or other readily available and officially adopted governmental

25  maps and information if:

26         a.  The transferor, or the transferor's agent, has

27  actual knowledge that the property is located in a priority

28  wetland zone; or

29         b.  Other readily available and officially adopted

30  governmental information regarding a priority wetland zone.

31  

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 1         6.  A person who is acting as an agent for a transferor

 2  of real property that is located in a strategic habitat

 3  conservation area, or the transferor if he or she is acting

 4  without an agent, shall disclose to any prospective transferee

 5  the fact that the property is located in a strategic habitat

 6  conservation area pursuant to maps issued by the Fish and

 7  Wildlife Conservation Commission or other readily available

 8  and officially adopted governmental maps and information if:

 9         a.  The transferor, or the transferor's agent, has

10  actual knowledge that the property is located in a strategic

11  habitat conservation area; or

12         b.  Other readily available and officially adopted

13  governmental information exists regarding a strategic habitat

14  conservation area.

15         7.  A person who is acting as an agent for a transferor

16  of real property that is located within 2 statute miles of an

17  airport influence area or a landing facility approved by the

18  Federal Aviation Administration, or the transferor if he or

19  she is acting without an agent, shall disclose to any

20  prospective transferee the fact that the property is located

21  within 2 statute miles of an airport influence area or a

22  landing facility approved by the Federal Aviation

23  Administration, the Department of Transportation, Division of

24  Aeronautics, and local land use commission if:

25         a.  The transferor, or the transferor's agent, has

26  actual knowledge that the property is located within 2 statute

27  miles of an airport influence area or a landing facility

28  approved by the Federal Aviation Administration; or

29         b.  Other readily available and officially adopted

30  governmental information exists regarding an airport influence

31  

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 1  area or a landing facility approved by the Federal Aviation

 2  Administration.

 3         8.  A person who is acting as an agent for a transferor

 4  of real property that is located within a quarter of a mile of

 5  an environmental site, limited to filed governmental reports,

 6  or the transferor if he or she is acting without an agent,

 7  shall disclose to any prospective transferee the fact that the

 8  property is located within a quarter of a mile of an

 9  environmental site, including leaking underground storage

10  tanks, solid waste landfills, incinerators or transfer

11  stations, national priority list sites, or CERCLIS sites under

12  review by the United States Environmental Protection Agency

13  if:

14         a.  The transferor, or the transferor's agent, has

15  actual knowledge that the property is located within a quarter

16  of a mile of an environmental site; or

17         b.  Other readily available and officially adopted

18  governmental information exists regarding environmental

19  hazards sites.

20         9.  A person who is acting as an agent for a transferor

21  of real property that is located within a mapped radon gas

22  potential zone pursuant to maps issued by the United States

23  Environmental Protection Agency or other readily available and

24  officially adopted governmental maps and information shall

25  disclose to any prospective transferee the fact that the

26  property is located within a mapped radon gas potential zone

27  if:

28         a.  The transferor, or the transferor's agent, has

29  actual knowledge that the property is located in a mapped

30  radon gas potential zone; or

31  

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 1         b.  Other readily available and officially adopted

 2  governmental information exists regarding radon gas.

 3         (c)  Any waiver of the requirements of this section is

 4  void as against public policy.

 5         (2)(a)  This section does not apply to the following

 6  transfers:

 7         1.  Transfers pursuant to court order, including, but

 8  not limited to, transfers ordered by a probate court in

 9  administration of an estate, transfers pursuant to a writ of

10  execution, transfers by any foreclosure sale, transfers by a

11  trustee in bankruptcy, transfers by eminent domain, and

12  transfers resulting from a decree for specific performance.

13         2.  Transfers to a mortgagee by a mortgagor or

14  successor in interest who is in default, transfers to a

15  beneficiary of a deed of trust by a trustor or successor in

16  interest who is in default, transfers by any foreclosure sale

17  after default, transfers by any foreclosure sale after default

18  in an obligation secured by a mortgage, transfers by a sale

19  under a power of sale or any foreclosure sale under a decree

20  of foreclosure after default in an obligation secured by a

21  deed of trust or secured by any other instrument containing a

22  power of sale, or transfers by a mortgagee or a beneficiary

23  under a deed of trust who has acquired the real property at a

24  sale conducted pursuant to a power of sale under a mortgage or

25  deed of trust or a sale pursuant to a decree of foreclosure or

26  has acquired the real property by a deed in lieu of

27  foreclosure.

28         3.  Transfers by a fiduciary in the course of the

29  administration of a decedent's estate, guardianship,

30  conservatorship, or trust.

31  

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 1         4.  Transfers from one coowner to one or more other

 2  coowners.

 3         5.  Transfers made to a spouse, or to a person or

 4  persons in the lineal line of consanguinity of one or more of

 5  the transferors.

 6         6.  Transfers between spouses resulting from a judgment

 7  of dissolution of marriage or of legal separation of the

 8  parties or from a property settlement agreement incidental to

 9  that judgment.

10         7.  Transfers or exchanges to or from any governmental

11  entity.

12         8.  Transfers by sale, resale, exchange, or installment

13  land sales contract of any manufactured mobile home, mobile

14  home park, or residential manufactured building.

15         (b)  Transfers not subject to this section may be

16  subject to other disclosure requirements. In transfers that

17  are not subject to this section, agents may make required

18  disclosures in a separate writing.

19         (3)(a)  The disclosures required by this section are

20  set forth in, and shall be made on a copy of, the following

21  Property Identification Disclosure Statement:

22  

23  PROPERTY IDENTIFICATION DISCLOSURE STATEMENT

24  

25  This statement applies to the following property:

26  _____________________

27  

28  The transferor and his or her agent(s) disclose the following

29  information with the knowledge that even though this is not a

30  warranty, prospective transferees may rely on this information

31  

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 1  in deciding whether and on what terms to purchase the subject

 2  property.

 3  

 4  Transferor hereby authorizes any agent(s) representing any

 5  principal(s) in this action to provide a copy of this

 6  statement to any person or entity in connection with any

 7  actual or anticipated sale of the property.

 8  

 9  The following are representations made by the transferor and

10  his or her agent(s) based on their knowledge and official maps

11  and information prepared by the state and federal governments.

12  This information is a disclosure and is not intended to be

13  part of any contract between the transferee and transferor.

14  

15  THIS REAL PROPERTY LIES WITHIN THE FOLLOWING AREA(S):

16  

17         (1)  A SPECIAL FLOOD HAZARD AREA (Any type Zone "A" or

18  "V") designated by the Federal Emergency Management Agency.

19  Yes _____   No _____   Do not know and information not

20  available ____  Pending _____

21  

22         (2)  ON SOILS WITH VERY SEVERE CONSTRAINTS FOR

23  DEVELOPMENT, pursuant to maps issued by the United States

24  Department of Agriculture or other readily available and

25  officially adopted governmental maps and information.

26  Yes _____   No _____   Do not know and information not

27  available _____  Pending _____

28  

29         (3)  AN AREA IMPACTED BY SINKHOLE ACTIVITY pursuant to

30  readily available and officially adopted governmental maps and

31  information.

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 1  Yes _____   No _____   Do not know and information not

 2  available _____   Pending _____

 3  

 4         (4)  WITHIN ONE QUARTER OF A MILE OF A WELLHEAD

 5  PROTECTION AREA pursuant to maps issued by the Department of

 6  Environmental Protection and Water Management Districts or

 7  other readily available and officially adopted governmental

 8  maps and information.

 9  Yes _____  No _____ Do not know and information not available

10  _____  Pending _____

11  

12         (5)  A PRIORITY WETLAND ZONE pursuant to maps issued by

13  the Fish and Wildlife Conservation Commission or other readily

14  available and officially adopted governmental maps and

15  information.

16  Yes _____   No _____   Do not know and information not

17  available _____   Pending _____

18  

19         (6)  A STRATEGIC HABITAT CONSERVATION AREA pursuant to

20  maps issued by the Fish and Wildlife Conservation Commission

21  or other readily available and officially adopted governmental

22  maps and information.

23  Yes _____   No _____   Do not know and information not

24  available _____   Pending _____

25  

26         (7)  WITHIN A QUARTER MILE OF AN AIRPORT INFLUENCE AREA

27  approved by the Federal Aviation Administration, or other

28  readily available and officially adopted governmental maps and

29  information.

30  Yes _____   No _____   Do not know and information not

31  available _____   Pending _____

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 1  

 2         (8)  WITHIN A QUARTER OF A MILE OF AN ENVIRONMENTAL

 3  HAZARD SITE including Leaking Underground Storage Tanks, Solid

 4  Waste Landfills, Incinerators or Transfer Stations, National

 5  Priority List Sites, and/or CERCLIS Sites under review by the

 6  United States Environmental Protection Agency.

 7  Yes _____   No _____   Do not know and information not

 8  available _____   Pending _____

 9  

10         (9)  WITHIN A MAPPED RADON GAS POTENTIAL ZONE pursuant

11  to maps issued by the United States Environmental Protection

12  Agency or other readily available and officially adopted

13  governmental maps and information.

14  Yes _____   No _____   Do not know and information not

15  available _____   Pending _____

16  

17  THESE ZONES MAY LIMIT YOUR ABILITY TO DEVELOP THE REAL

18  PROPERTY, TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AFTER

19  A DISASTER.

20  

21  THE MAPS AND INFORMATION ON WHICH THESE DISCLOSURES ARE BASED

22  ARE ESTIMATES WHERE THE APPLICABLE ZONES AND PROTECTED LANDS

23  EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A

24  PROPERTY WILL BE AFFECTED BY A NATURAL OR ENVIRONMENTAL

25  DISASTER. TRANSFEREE(S) AND TRANSFEROR(S) MAY WISH TO OBTAIN

26  PROFESSIONAL ADVICE REGARDING THESE AND OTHER HAZARDS AND

27  PROTECTION ZONES THAT MAY AFFECT THE PROPERTY.

28  

29  Transferor represents that the information herein is true and

30  correct to the best of the transferor's knowledge as of the

31  date signed by the transferor.

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 1  

 2  Signature of Transferor __________________   Date ____________

 3  

 4  Signature of Transferor __________________   Date ____________

 5  

 6  Agent represents that the information herein is true and

 7  correct to the best of the agent's knowledge as of the date

 8  signed by the agent.

 9  

10  Signature of Transferor's Agent ___________________

11  Date __________

12  

13  Signature of Transferor's Agent ___________________

14  Date __________

15  

16  Transferee represents that he or she has read and understands

17  this document.

18  

19  Signature of Transferee ________________   Date ___________

20  

21  Signature of Transferee ________________   Date ___________

22         (b)  If a map or accompanying information is not of

23  sufficient accuracy or scale that a reasonable person can

24  determine if the subject real property is included in an

25  applicable area, the transferor or transferor's agent shall

26  mark "Yes" on the Property Identification Disclosure

27  Statement. The transferor or transferor's agent may mark "No"

28  on the Property Identification Disclosure Statement if he or

29  she attaches a report prepared pursuant to paragraph (5)(c)

30  which verifies that the property is not in the applicable

31  zone. This paragraph does not limit or abridge any existing

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 1  duty of the transferor or the transferor's agents to exercise

 2  reasonable care in making a determination under this

 3  subsection.

 4         (c)  If the Federal Emergency Management Agency has

 5  issued a Letter of Map Revision confirming that a property is

 6  no longer within a special flood hazard area, the transferor

 7  or transferor's agent may mark "No" on the Property

 8  Identification Disclosure Statement, even if the map has not

 9  yet been updated.

10         (d)  If the Federal Emergency Management Agency has

11  issued a Letter of Map Revision confirming that a property is

12  within a special flood hazard area and the location of the

13  letter has been posted then the transferor or transferor's

14  agent shall mark "Yes" on the Property Identification

15  Disclosure Statement, even if the map has not yet been

16  updated.

17         (f)  The disclosure required by this section is a

18  disclosure only between the transferor, the transferor's

19  agents, and the transferee, and may not be used by any other

20  party, including, but not limited to, insurance companies,

21  lenders, or governmental agencies, for any purpose.

22         (g)  In any transaction in which a transferor has

23  accepted, prior to the effective date of this section, an

24  offer to purchase, the transferor, or his or her agent, shall

25  be deemed to have complied with the requirement of paragraph

26  (a) if the transferor or agent delivers to the prospective

27  transferee a statement that includes substantially the same

28  information and warning as the Property Identification

29  Disclosure Statement.

30  

31  

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 1         (4)(a)  The transferor of any real property subject to

 2  this section shall deliver to the prospective transferee the

 3  written statement required by this section, as follows:

 4         1.  In the case of a sale, as soon as practicable

 5  before transfer of title.

 6         2.  In the case of transfer by a real property sales

 7  contract or by a lease together with an option to purchase, or

 8  a ground lease coupled with improvements, as soon as

 9  practicable before execution of the contract. For the purpose

10  of this subparagraph, "execution" means the making or

11  acceptance of an offer.

12         (b)  The transferor shall indicate compliance with this

13  section either on the receipt for deposit, the real property

14  sales contract, the lease, any addendum attached thereto, or

15  on a separate document.

16         (c)  If any disclosure, or any material amendment of

17  any disclosure, required to be made pursuant to this section

18  is delivered after the execution of an offer to purchase, the

19  transferee shall have 3 days after delivery in person or 5

20  days after delivery by deposit in the mail to terminate his or

21  her offer by delivery of a written notice of termination to

22  the transferor or the transferor's agent.

23         (5)(a)  Neither the transferor nor any listing or

24  selling agent shall be liable for any error, inaccuracy, or

25  omission of any information delivered pursuant to this section

26  if the error, inaccuracy, or omission was not within the

27  personal knowledge of the transferor or the listing or selling

28  agent, and was based on information timely provided by public

29  agencies or by other persons providing information as

30  specified in paragraph (c) which is required to be disclosed

31  

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 1  pursuant to this section, and ordinary care was exercised in

 2  obtaining and transmitting the information.

 3         (b)  The delivery of any information required to be

 4  disclosed by this section to a prospective transferee by a

 5  third party providing information required to be disclosed

 6  pursuant to this section shall be deemed to comply with the

 7  requirements of this section and shall relieve the transferor

 8  or any listing or selling agent of any further duty under this

 9  section with respect to that item of information.

10         (c)  The delivery of a report or opinion prepared by a

11  licensed engineer, land surveyor, or expert in locating the

12  applicable zones on readily available official governmental

13  maps and information concerning matters within the scope of

14  the professional's license or expertise is sufficient

15  compliance for application of the exemption provided by

16  paragraph (a) if the information is provided to the

17  prospective transferee pursuant to a request therefore,

18  whether written or oral. In responding to that request, an

19  expert may indicate, in writing, an understanding that the

20  information provided will be used in fulfilling the

21  requirements of subsection (3) and, if so, shall indicate the

22  required disclosures, or parts thereof, to which the

23  information being furnished is applicable. If that statement

24  is furnished, the expert is not responsible for any items of

25  information, or parts thereof, other than those expressly set

26  forth in the statement.

27         (d)  A third party providing the information on behalf

28  of the transferor and the transferor's agent fulfilling the

29  requirements of subsection (3) to be disclosed by this section

30  shall maintain a minimum of $20 million of insurance

31  

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 1  protection to protect the transferor and the agents for any

 2  errors or omissions made by the third party.

 3         (6)(a)  After a transferor and his or her agent comply

 4  with subsection (3), they are relieved of further duty under

 5  this section with respect to those items of information. The

 6  transferor and his or her agent are not required to provide

 7  notice to the transferee if the information provided

 8  subsequently becomes inaccurate as a result of any

 9  governmental action, map revision, changed information, or

10  other act or occurrence, unless the transferor or agent has

11  actual knowledge that the information has become inaccurate.

12         (b)  If information disclosed in accordance with this

13  section is subsequently rendered inaccurate as a result of any

14  governmental action, map revision, changed information, or

15  other act or occurrence subsequent to the delivery of the

16  required disclosures, the inaccuracy resulting therefrom does

17  not constitute a violation of this section.

18         (7)  Each disclosure required by this section and each

19  act that may be performed in making the disclosure shall be

20  made in good faith. For purposes of this section, "good faith"

21  means honesty in fact in the conduct of the transaction.

22         (8)  The specification of items for disclosure in this

23  section does not limit or abridge any obligation for

24  disclosure created by any other provision of law or that may

25  exist in order to avoid fraud, misrepresentation, or deceit in

26  the transfer transaction. The Legislature does not intend to

27  affect the existing obligations of the parties to a real

28  estate contract, or their agents, or to disclose any fact

29  materially affecting the value and desirability of the

30  property, including, but not limited to, the physical

31  

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 1  condition of the property and previously received reports of

 2  physical inspection.

 3         (9)  Any disclosure made pursuant to this section may

 4  be amended in writing by the transferor or his or her agent,

 5  but the amendment shall be subject to subsection (4).

 6         (10)  Delivery of disclosures required by this section

 7  shall be by personal delivery to the transferee or by mail to

 8  the prospective transferee. For the purposes of this section,

 9  delivery to the spouse of a transferee shall be deemed

10  delivery to the transferee, unless provided otherwise by

11  contract.

12         (11)  Any person or entity, other than a real estate

13  licensee licensed in this state and acting in the capacity of

14  an escrow agent for the transfer of real property subject to

15  this section, shall not be deemed the agent of the transferor

16  or transferee for purposes of the disclosure requirements of

17  this section unless the person or entity is empowered to so

18  act by an express written agreement to that effect. The extent

19  of that agency shall be governed by the written agreement.

20         (12)(a)  If more than one licensed real estate broker

21  is acting as an agent in a transaction subject to this

22  section, the broker who has obtained the offer made by the

23  transferee shall, except as otherwise provided in this

24  section, deliver the disclosure required by this section to

25  the transferee, unless the transferor has given other written

26  instructions for delivery.

27         (b)  If a licensed real estate broker responsible for

28  delivering the disclosure under this section cannot obtain the

29  disclosure document required and does not have written

30  assurance from the transferee that the disclosure has been

31  received, the broker shall advise the transferee in writing of

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 1  his or her rights to the disclosure. A licensed real estate

 2  broker responsible for delivering disclosures under this

 3  section shall maintain a record of the action taken to effect

 4  compliance of the transaction.

 5         (13)  A transfer subject to this section may not be

 6  invalidated solely because of the failure of any person to

 7  comply with any provision of this section. However, any person

 8  who willfully or negligently violates or fails to perform any

 9  duty prescribed by any provision of this section shall be

10  liable in the amount of actual damages suffered by a

11  transferee.

12         (14)(a)  As used in this section, the term "listing

13  agent" means an individual who has obtained a listing of

14  property of the kind in respect of which he or she is

15  authorized by law to act as an agent for compensation.

16         (b)  As used in this section, the term "selling agent"

17  means an individual who acts in cooperation with a listing

18  agent and who sells, or finds and obtains a buyer for, the

19  property.

20         Section 22.  Section 475.43, Florida Statutes, is

21  amended to read:

22         475.43  Presumptions.--In all criminal cases, contempt

23  cases, and other cases filed pursuant to this chapter, if a

24  party has sold, leased, or let real estate, the title to which

25  was not in the party when it was offered for sale, lease, or

26  letting, or such party has maintained an office bearing signs

27  that real estate is for sale, lease, or rental thereat, or has

28  advertised real estate for sale, lease, or rental, generally,

29  or describing property, the title to which was not in such

30  party at the time, it shall be a presumption that such party

31  was acting or attempting to act as a real estate broker, and

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 1  the burden of proof shall be upon him or her to show that he

 2  or she was not acting or attempting to act as a broker or

 3  sales associate salesperson.  All contracts, options, or other

 4  devices not based upon a substantial consideration, or that

 5  are otherwise employed to permit an unlicensed person to sell,

 6  lease, or let real estate, the beneficial title to which has

 7  not, in good faith, passed to such party for a substantial

 8  consideration, are hereby declared void and ineffective in all

 9  cases, suits, or proceedings had or taken under this chapter;

10  however, this section shall not apply to irrevocable gifts, to

11  unconditional contracts to purchase, or to options based upon

12  a substantial consideration actually paid and not subject to

13  any agreements to return or right of return reserved.

14         Section 23.  Section 475.451, Florida Statutes, is

15  amended to read:

16         475.451  Schools teaching real estate practice.--

17         (1)  Each person, school, or institution, except

18  approved and accredited colleges, universities, community

19  colleges, and area technical centers in this state, which

20  offers or conducts any course of study in real estate

21  practice, teaches any course prescribed by the commission as a

22  condition precedent to licensure or renewal of licensure as a

23  broker or sales associate salesperson, or teaches any course

24  designed or represented to enable or assist applicants for

25  licensure as brokers or sales associates salespersons to pass

26  examinations for such licensure shall, before commencing or

27  continuing further to offer or conduct such course or courses,

28  obtain a permit from the department and abide by the

29  regulations imposed upon such person, school, or institution

30  by this chapter and rules of the commission adopted pursuant

31  to this chapter. The exemption for colleges, universities,

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 1  community colleges, and area technical centers is limited to

 2  transferable college credit courses offered by such

 3  institutions.

 4         (2)  An applicant for a permit to operate a proprietary

 5  real estate school, to be a chief administrator of a

 6  proprietary real estate school or a state institution, or to

 7  be an instructor for a proprietary real estate school or a

 8  state institution must meet the qualifications for practice

 9  set forth in s. 475.17(1) and the following minimal

10  requirements:

11         (a)  "School permitholder" means the individual who is

12  responsible for directing the overall operation of a

13  proprietary real estate school.  A school permitholder must be

14  the holder of a license as a broker, either active or

15  voluntarily inactive, or must have passed an instructor's

16  examination approved by the commission.  A school permitholder

17  must also meet the requirements of a school instructor if

18  actively engaged in teaching.

19         (b)  "Chief administrative person" means the individual

20  who is responsible for the administration of the overall

21  policies and practices of the institution or proprietary real

22  estate school. A chief administrative person must also meet

23  the requirements of a school instructor if actively engaged in

24  teaching.

25         (c)  "School instructor" means an individual who

26  instructs persons in the classroom in noncredit college

27  courses in a college, university, or community college or

28  courses in an area technical center or proprietary real estate

29  school.

30         1.  Before commencing to provide such instruction, the

31  applicant must certify the applicant's competency and obtain

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 1  an instructor permit by meeting one of the following

 2  requirements:

 3         a.  Hold a bachelor's degree in a business-related

 4  subject, such as real estate, finance, accounting, business

 5  administration, or its equivalent and hold a valid broker's

 6  license in this state.

 7         b.  Hold a bachelor's degree, have extensive real

 8  estate experience, as defined by rule, and hold a valid

 9  broker's license in this state.

10         c.  Pass an instructor's examination approved by the

11  commission.

12         2.  Any requirement by the commission for a teaching

13  demonstration or practical examination must apply to all

14  school instructor applicants.

15         3.  The department shall renew an instructor permit

16  upon receipt of a renewal application and fee. The renewal

17  application shall include proof that the permitholder has,

18  since the issuance or renewal of the current permit,

19  successfully completed a minimum of 7 15 classroom hours of

20  instruction in real estate subjects or instructional

21  techniques, as prescribed by the commission. The commission

22  shall adopt rules providing for the renewal of instructor

23  permits at least every 2 years. Any permit which is not

24  renewed at the end of the permit period established by the

25  department shall automatically revert to involuntarily

26  inactive status.

27  

28  The department may require an applicant to submit names of

29  persons having knowledge concerning the applicant and the

30  enterprise; may propound interrogatories to such persons and

31  to the applicant concerning the character of the applicant,

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 1  including the taking of fingerprints for processing through

 2  the Federal Bureau of Investigation; and shall make such

 3  investigation of the applicant or the school or institution as

 4  it may deem necessary to the granting of the permit. If an

 5  objection is filed, it shall be considered in the same manner

 6  as objections or administrative complaints against other

 7  applicants for licensure by the department.

 8         (3)  It is unlawful for any person, school, or

 9  institution to offer the courses described in subsection (1)

10  or to conduct classes in such courses, regardless of the

11  number of pupils, whether by correspondence or otherwise,

12  without first procuring a permit, or to guarantee that its

13  pupils will pass any examinations required for licensure, or

14  to represent that the issuance of a permit is any

15  recommendation or endorsement of the person, school, or

16  institution to which it is issued or of any course of

17  instruction given thereunder.

18         (4)  Any person who violates this section commits a

19  misdemeanor of the second degree, punishable as provided in s.

20  775.082 or s. 775.083.

21         (5)  The location of classes and frequency of class

22  meetings and the provision of distance learning courses shall

23  be in the discretion of the school offering real estate

24  courses, so long as such courses conform to s. 475.17(2).

25         (6)  Any course prescribed by the commission as a

26  condition precedent to any person's becoming initially

27  licensed as a sales associate salesperson may be taught in any

28  real estate school through the use of a video tape of

29  instruction by a currently permitted instructor from any such

30  school or may be taught by distance learning pursuant to s.

31  475.17(2).  The commission may require that any such video

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 1  tape course have a single session of live instruction by a

 2  currently permitted instructor from any such school; however,

 3  this requirement shall not exceed 3 classroom hours.  All

 4  other prescribed courses, except the continuing education

 5  course required by s. 475.182, shall be taught by a currently

 6  permitted school instructor personally in attendance at such

 7  course or by distance learning pursuant to s. 475.17.  The

 8  continuing education course required by s. 475.182 may be

 9  taught by distance learning pursuant to s. 475.17 or by an

10  equivalent correspondence course; however, any such

11  correspondence course shall be required to have a final

12  examination, prepared and administered by the school issuing

13  the correspondence course. The continuing education

14  requirements provided in this section or provided in any other

15  section in this chapter do not apply with respect to any

16  attorney who is otherwise qualified under the provisions of

17  this chapter.

18         (7)  Any person holding a school instructor permit on

19  October 1, 1983, is exempt from the instructor examination

20  requirements of paragraph (2)(c) as long as the person

21  continuously holds such a permit and complies with all other

22  requirements of this chapter.

23         (7)(8)  A permitholder under this section may be issued

24  additional permits whenever it is clearly shown that the

25  requested additional permits are necessary to the conduct of

26  the business of a real estate school and that the additional

27  permits will not be used in a manner likely to be prejudicial

28  to any person, including a licensee or a permitholder under

29  this chapter.

30         Section 24.  Subsection (4) of section 475.4511,

31  Florida Statutes, is repealed.

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 1         Section 25.  Section 475.453, Florida Statutes, is

 2  amended to read:

 3         475.453  Rental information; contract or receipt;

 4  refund; penalty.--

 5         (1)  Each broker or sales associate salesperson who

 6  attempts to negotiate a rental, or who furnishes rental

 7  information to a prospective tenant, for a fee paid by the

 8  prospective tenant shall provide such prospective tenant with

 9  a contract or receipt, which contract or receipt contains a

10  provision for the repayment of any amount over 25 percent of

11  the fee to the prospective tenant if the prospective tenant

12  does not obtain a rental.  If the rental information provided

13  by the broker or sales associate salesperson to a prospective

14  tenant is not current or accurate in any material respect, the

15  full fee shall be repaid to the prospective tenant upon

16  demand.  A demand from the prospective tenant for the return

17  of the fee, or any part thereof, shall be made within 30 days

18  following the day on which the real estate broker or sales

19  associate salesperson has contracted to perform services to

20  the prospective tenant.  The contract or receipt shall also

21  conform to the guidelines adopted by the commission in order

22  to effect disclosure of material information regarding the

23  service to be provided to the prospective tenant.

24         (2)  The commission may adopt a guideline for the form

25  of the contract or receipt required to be provided by brokers

26  or sales associates salespersons pursuant to the provisions of

27  subsection (1).

28         (3)(a)  Any person who violates any provision of

29  subsection (1) is guilty of a misdemeanor of the first degree,

30  punishable as provided in s. 775.082 or s. 775.083.

31  

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 1         (b)  In addition to the penalty prescribed in paragraph

 2  (a), the license of any broker or sales associate salesperson

 3  who participates in any rental information transaction which

 4  is in violation of the provisions of subsection (1) shall be

 5  subject to suspension or revocation by the commission in the

 6  manner prescribed by law.

 7         Section 26.  Section 475.455, Florida Statutes, is

 8  amended to read:

 9         475.455  Exchange of disciplinary information.--The

10  commission shall inform the Division of Florida Land Sales,

11  Condominiums, and Mobile Homes of the Department of Business

12  and Professional Regulation of any disciplinary action the

13  commission has taken against any of its licensees. The

14  division shall inform the commission of any disciplinary

15  action the division has taken against any broker or sales

16  associate salesperson registered with the division.

17         Section 27.  Section 475.482, Florida Statutes, is

18  amended to read:

19         475.482  Real Estate Recovery Fund.--There is created

20  the Florida Real Estate Recovery Fund as a separate account in

21  the Professional Regulation Trust Fund.

22         (1)  The Florida Real Estate Recovery Fund shall be

23  disbursed as provided in s. 475.484, on order of the

24  commission, as reimbursement to any person, partnership, or

25  corporation adjudged by a court of competent civil

26  jurisdiction in this state to have suffered monetary damages

27  by reason of any act committed, as a part of any real estate

28  brokerage transaction involving real property in this state,

29  by any broker or sales associate salesperson who:

30  

31  

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 1         (a)  Was, at the time the alleged act was committed,

 2  the holder of a current, valid, active real estate license

 3  issued under this part;

 4         (b)  Was neither the seller, buyer, landlord, or tenant

 5  in the transaction nor an officer or a director of a

 6  corporation, a member of a partnership, a member of a limited

 7  liability company, or a partner of a limited liability

 8  partnership which was the seller, buyer, landlord, or tenant

 9  in the transaction; and

10         (c)  Was acting solely in the capacity of a real estate

11  licensee in the transaction;

12  

13  provided the act was a violation proscribed in s. 475.25 or s.

14  475.42.

15         (2)  The Real Estate Recovery Fund shall also be

16  disbursed as provided in s. 475.484, on order of the

17  commission, as reimbursement to any broker or sales associate

18  salesperson who is required by a court of competent civil

19  jurisdiction to pay monetary damages due to a distribution of

20  escrow moneys which is made in compliance with an escrow

21  disbursement order issued by the commission. However, in no

22  case shall the fund be disbursed when the broker or sales

23  associate salesperson fails to notify the commission and to

24  diligently defend an action wherein the broker or sales

25  associate salesperson may be required by a court of competent

26  civil jurisdiction to pay monetary damages due to a

27  distribution of escrow moneys which is made in compliance with

28  an escrow disbursement order issued by the commission.

29         (3)  A fee of $3.50 per year shall be added to the

30  license fee for both new licenses and renewals of licenses for

31  brokers, and a fee of $1.50 per year shall be added for new

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 1  licenses and renewals of licenses for sales associates

 2  salespersons.  This fee shall be in addition to the regular

 3  license fee and shall be deposited in or transferred to the

 4  Real Estate Recovery Fund.  If the fund at any time exceeds $1

 5  million $750,000, collection of special fees for this fund

 6  shall be discontinued at the end of the licensing renewal

 7  cycle.  Such special fees shall not be reimposed unless the

 8  fund is reduced below $500,000 by disbursement made in

 9  accordance with this chapter.

10         (4)  In addition, all moneys collected from fines

11  imposed by the commission and collected by the department

12  shall be transferred into the Real Estate Recovery Fund.

13         Section 28.  Paragraph (a) of subsection (1) and

14  subsections (2) and (3) of section 475.483, Florida Statutes,

15  are amended to read:

16         475.483  Conditions for recovery; eligibility.--

17         (1)  Any person is eligible to seek recovery from the

18  Real Estate Recovery Fund if:

19         (a)  Such person has received a final judgment in a

20  court of competent civil jurisdiction in this state against an

21  individual broker or sales associate salesperson in any action

22  wherein the cause of action was based on a real estate

23  brokerage transaction. If such person is unable to secure a

24  final judgment against a licensee due to the death of the

25  licensee, the commission may waive the requirement for a final

26  judgment. The filing of a bankruptcy petition by a broker or

27  sales associate salesperson does not relieve a claimant from

28  the obligation to obtain a final judgment against the

29  licensee. In this instance, the claimant must seek to have

30  assets involving the real estate transaction that gave rise to

31  the claim removed from the bankruptcy proceedings so that the

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 1  matter might be heard in a court of competent civil

 2  jurisdiction in this state. If, after due diligence, the

 3  claimant is precluded by action of the bankruptcy court from

 4  securing a final judgment against the licensee, the commission

 5  may waive the requirement for a final judgment.

 6         (2)  A person is not qualified to make a claim for

 7  recovery from the Real Estate Recovery Fund, if:

 8         (a)  Such person is the spouse of the judgment debtor

 9  or a personal representative of such spouse;

10         (b)  Such person is a licensed broker or sales

11  associate salesperson who acted as a single agent or

12  transaction broker in the transaction that is the subject of

13  the claim;

14         (c)  Such person's claim is based upon a real estate

15  transaction in which the licensed broker or sales associate

16  salesperson was the owner of or controlled the property

17  involved in the transaction; in which the licensee was dealing

18  for the licensee's own account; or in which the licensee was

19  not acting as a broker or sales associate salesperson;

20         (d)  Such person's claim is based upon a real estate

21  transaction in which the broker or sales associate salesperson

22  did not hold a valid, current, and active license at the time

23  of the real estate transaction; or

24         (e)  The judgment is against a real estate brokerage

25  corporation, partnership, limited liability company, or

26  limited liability partnership.

27         (3)  The commission may pay attorney's fees and court

28  costs If the claim is of the type described in s. 475.482(2),

29  the commission shall pay the defendant's reasonable attorney's

30  fees and court costs and, if the plaintiff prevails in court,

31  the plaintiff's reasonable attorney's fees and court costs.

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 1         Section 29.  Subsections (1), (3), (4), (5), and (7) of

 2  section 475.484, Florida Statutes, are amended to read:

 3         475.484  Payment from the fund.--

 4         (1)  Any person who meets all of the conditions

 5  prescribed in s. 475.482(1) or (2) may apply to the commission

 6  to cause payment to be made to such person from the Real

 7  Estate Recovery Fund:

 8         (a)  Under s. 475.482(1), in an amount equal to the

 9  unsatisfied portion of such person's judgment or $50,000

10  $25,000, whichever is less, but only to the extent and amount

11  reflected in the judgment as being actual or compensatory

12  damages. Except as provided in s. 475.483, treble damages,

13  court costs, attorney's fees, and interest shall not be

14  recovered from the fund.

15         (b)  Under s. 475.482(2), in an amount equal to the

16  judgment against the broker or sales associate salesperson or

17  $50,000 $25,000, whichever is less.

18         (3)  Payments for claims arising out of the same

19  transaction shall be limited, in the aggregate, to $50,000

20  $25,000, regardless of the number of claimants or parcels of

21  real estate involved in the transaction.

22         (4)  Payments for claims based upon judgments against

23  any one broker or sales associate salesperson may not exceed,

24  in the aggregate, $150,000 $75,000.

25         (5)  If at any time the moneys in the Real Estate

26  Recovery Fund are insufficient to satisfy any valid claim or

27  portion thereof, the commission shall satisfy such unpaid

28  claim or portion thereof as soon as a sufficient amount of

29  money has been deposited in or transferred to the fund. When

30  there is more than one unsatisfied claim outstanding, such

31  claims shall be paid in the order in which the claims were

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 1  approved by the commission. However, if the total claims

 2  approved at any one commission meeting exceed the aggregate

 3  amount established in subsection (4) against any one broker or

 4  sales associate salesperson, the claims approved on that day

 5  shall be prorated.

 6         (7)  Upon the payment of any amount from the Real

 7  Estate Recovery Fund in settlement of a claim in satisfaction

 8  of a judgment against a broker or sales associate salesperson

 9  as described in s. 475.482(1), the license of such broker or

10  sales associate salesperson shall be automatically suspended

11  upon the date of payment from the fund. The license of such

12  broker or sales associate salesperson may not be reinstated

13  until the licensee has repaid in full, plus interest, the

14  amount paid from the fund. No further administrative action is

15  necessary. A discharge of bankruptcy does not relieve a

16  licensee from the penalties and disabilities provided in this

17  section, except to the extent that this subsection conflicts

18  with 11 U.S.C. s. 525, in which case the commission may order

19  the license not to be suspended or otherwise discriminated

20  against.

21         Section 30.  Subsection (2) of section 475.5017,

22  Florida Statutes, is amended to read:

23         475.5017  Injunctive relief; powers.--

24         (2)  All expenses of the receiver shall be paid out of

25  the assets of the brokerage firm upon application to and

26  approval by the court. If the assets are not sufficient to pay

27  all the expenses of the receiver, the court may order

28  disbursement from the Real Estate Recovery Fund, which may not

29  exceed $100,000 $75,000 per receivership.

30         Section 31.  Section 475.505, Florida Statutes, is

31  created to read:

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 1         475.505  Temporary practice.--

 2         (1)  The commission shall recognize, on a temporary

 3  basis, the license of a real estate broker issued by another

 4  state, provided:

 5         (a)  The real estate broker's business is of a

 6  temporary nature and limited to commercial real estate

 7  transactions. For purposes of this section, "commercial real

 8  estate" means any parcel of real estate in this state other

 9  than real estate containing one to four residential units.

10  "Commercial real estate" does not include single-family

11  residential units such as condominiums, townhouses,

12  manufactured homes, or homes in a subdivision when sold,

13  leased, or otherwise conveyed on a unit-by-unit basis, even

14  when those units are a part of a larger building or parcel of

15  real estate containing more than four residential units.

16         (b)  The real estate broker registers with the

17  commission.

18         (c)  The person requesting recognition of a license as

19  a real estate broker issued by another state is a nonresident

20  of Florida.

21         (2)  In order to register with the commission, the real

22  estate broker must:

23         (a)  Pay any required fee as established by rule.

24         (b)  Provide, or cause the state where the applicant

25  may be licensed or certified to furnish, proof of licensure or

26  certification along with the copies of the records of any

27  disciplinary actions taken against the applicant's license or

28  certification in that or other jurisdictions.

29         (c)  Agree in writing to cooperate with any

30  investigation initiated under this part by promptly supplying

31  such documents that any authorized representative of the

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 1  department may request. If the department sends a notice by

 2  certified mail to the last known address of a nonresident real

 3  estate broker to produce documents or to appear in conjunction

 4  with an investigation and the nonresident real estate broker

 5  fails to comply with that request, the commission may impose

 6  on that nonresident real estate broker any disciplinary action

 7  or penalty authorized under this part.

 8         (d)  Agree to enter a written agreement with a

 9  cooperating real estate broker licensed in this state before

10  performing any act in this state which constitutes

11  professional real estate activity. The written agreement shall

12  provide:

13         1.  The terms of cooperation and compensation.

14         2.  That the services set forth in s. 475.01(1)(a), if

15  conducted in this state, will be under the supervision and

16  control of the cooperating real estate broker licensed in this

17  state.

18         3.  That civil actions may be commenced against the

19  real estate broker, the cooperating real estate broker

20  licensed in this state, or both in any court of competent

21  jurisdiction in any county of this state in which a claim

22  arises.

23         4.  That the cooperating real estate broker licensed in

24  this state shall accompany the real estate broker and the

25  potential buyer or potential lessee during any initial

26  property showing.

27         5.  That all subsequent property showings and all

28  negotiations regarding the cooperative real estate transaction

29  are conducted under the supervision, control, and express

30  permission of the cooperating real estate broker licensed in

31  this state.

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 1         6.  That any escrow or trust funds obtained by the real

 2  estate broker in any transaction involving any real property

 3  in Florida shall be held in the escrow account of the

 4  cooperating real estate broker licensed in this state unless

 5  otherwise agreed in writing by the party or parties having any

 6  interest in said escrow or trust funds.

 7         (e)  Sign a notarized statement that the applicant has

 8  read this part and all applicable rules and agrees to comply

 9  with the laws of Florida in the performance of all real estate

10  activities.

11         (3)  For purposes of this section, a "real estate

12  broker licensed in another state" means the licensed broker

13  and other brokers or salespersons licensed under such broker.

14  However, the temporary recognition will extend to other

15  brokers and salespersons licensed under such broker, provided

16  they follow all of the foregoing requirements for registration

17  and the broker provides the commission a notarized statement

18  certifying that the brokers or salespersons will perform the

19  services of real estate under the real estate broker' s

20  direction, control, or management and in accordance with the

21  agreement with the cooperating real estate broker licensed in

22  this state.

23         Section 32.  Subsections (2) and (3) of section

24  475.612, Florida Statutes, are amended to read:

25         475.612  Certification, licensure, or registration

26  required.--

27         (2)  This section does not preclude a broker, sales

28  associate salesperson, or broker associate broker-salesperson

29  who is not a certified or licensed real estate appraiser or

30  registered assistant real estate appraiser from appraising

31  real estate for compensation.  Such persons may continue to

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 1  provide appraisals and appraisal services for compensation so

 2  long as they do not represent themselves as certified,

 3  licensed, or registered under this part.

 4         (3)  This section does not apply to a real estate

 5  broker or sales associate salesperson who, in the ordinary

 6  course of business, performs a comparative market analysis,

 7  gives a broker price opinion, or gives an opinion of the value

 8  of real estate.  However, in no event may this comparative

 9  market analysis, broker price opinion, or opinion of value of

10  real estate be referred to or construed as an appraisal.

11         Section 33.  Section 689.25, Florida Statutes, is

12  amended to read:

13         689.25  Failure to disclose homicide, suicide, deaths,

14  or diagnosis of HIV or AIDS infection in an occupant of real

15  property.--

16         (1)(a)  The fact that an occupant of real property is

17  infected or has been infected with human immunodeficiency

18  virus or diagnosed with acquired immune deficiency syndrome is

19  not a material fact that must be disclosed in a real estate

20  transaction.

21         (b)  The fact that a property was, or was at any time

22  suspected to have been, the site of a homicide, suicide, or

23  death is not a material fact that must be disclosed in a real

24  estate transaction.

25         (2)  A No cause of action shall not arise arises

26  against an owner of real property, or his or her agent, an or

27  against any agent of a transferee of real property, or a

28  person licensed under chapter 475 for the failure to disclose

29  to the transferee that the property was or was suspected to

30  have been the site of a homicide, suicide, or death or that an

31  occupant of that property was infected with human

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 1  immunodeficiency virus or diagnosed with acquired immune

 2  deficiency syndrome.

 3         Section 34.  Sections 475.421 and 475.422, Florida

 4  Statutes, are repealed.

 5         Section 35.  Paragraph (d) of subsection (3) of section

 6  83.49, Florida Statutes, is amended to read:

 7         83.49  Deposit money or advance rent; duty of landlord

 8  and tenant.--

 9         (3)

10         (d)  Compliance with this section by an individual or

11  business entity authorized to conduct business in this state,

12  including Florida-licensed real estate brokers and sales

13  associates salespersons, shall constitute compliance with all

14  other relevant Florida Statutes pertaining to security

15  deposits held pursuant to a rental agreement or other

16  landlord-tenant relationship. Enforcement personnel shall look

17  solely to this section to determine compliance. This section

18  prevails over any conflicting provisions in chapter 475 and in

19  other sections of the Florida Statutes, and shall operate to

20  permit licensed real estate brokers to disburse security

21  deposits and deposit money without having to comply with the

22  notice and settlement procedures contained in s. 475.25(1)(d).

23         Section 36.  Paragraph (d) of subsection (15) of

24  section 440.02, Florida Statutes, is amended to read:

25         440.02  Definitions.--When used in this chapter, unless

26  the context clearly requires otherwise, the following terms

27  shall have the following meanings:

28         (15)

29         (d)  "Employee" does not include:

30         1.  An independent contractor, if:

31  

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 1         a.  The independent contractor maintains a separate

 2  business with his or her own work facility, truck, equipment,

 3  materials, or similar accommodations;

 4         b.  The independent contractor holds or has applied for

 5  a federal employer identification number, unless the

 6  independent contractor is a sole proprietor who is not

 7  required to obtain a federal employer identification number

 8  under state or federal requirements;

 9         c.  The independent contractor performs or agrees to

10  perform specific services or work for specific amounts of

11  money and controls the means of performing the services or

12  work;

13         d.  The independent contractor incurs the principal

14  expenses related to the service or work that he or she

15  performs or agrees to perform;

16         e.  The independent contractor is responsible for the

17  satisfactory completion of work or services that he or she

18  performs or agrees to perform and is or could be held liable

19  for a failure to complete the work or services;

20         f.  The independent contractor receives compensation

21  for work or services performed for a commission or on a

22  per-job or competitive-bid basis and not on any other basis;

23         g.  The independent contractor may realize a profit or

24  suffer a loss in connection with performing work or services;

25         h.  The independent contractor has continuing or

26  recurring business liabilities or obligations; and

27         i.  The success or failure of the independent

28  contractor' s business depends on the relationship of business

29  receipts to expenditures.

30  

31  

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 1  However, the determination as to whether an individual

 2  included in the Standard Industrial Classification Manual of

 3  1987, Industry Numbers 0711, 0721, 0722, 0751, 0761, 0762,

 4  0781, 0782, 0783, 0811, 0831, 0851, 2411, 2421, 2435, 2436,

 5  2448, or 2449, or a newspaper delivery person, is an

 6  independent contractor is governed not by the criteria in this

 7  paragraph but by common-law principles, giving due

 8  consideration to the business activity of the individual.

 9  Notwithstanding the provisions of this paragraph or any other

10  provision of this chapter, with respect to any commercial

11  building project estimated to be valued at $250,000 or

12  greater, a person who is actively engaged in the construction

13  industry is not an independent contractor and is either an

14  employer or an employee who may not be exempt from the

15  coverage requirements of this chapter.

16         2.  A real estate licensee salesperson or agent, if

17  that person agrees, in writing, to perform for remuneration

18  solely by way of commission.

19         3.  Bands, orchestras, and musical and theatrical

20  performers, including disk jockeys, performing in licensed

21  premises as defined in chapter 562, if a written contract

22  evidencing an independent contractor relationship is entered

23  into before the commencement of such entertainment.

24         4.  An owner-operator of a motor vehicle who transports

25  property under a written contract with a motor carrier which

26  evidences a relationship by which the owner-operator assumes

27  the responsibility of an employer for the performance of the

28  contract, if the owner-operator is required to furnish the

29  necessary motor vehicle equipment and all costs incidental to

30  the performance of the contract, including, but not limited

31  to, fuel, taxes, licenses, repairs, and hired help; and the

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 1  owner-operator is paid a commission for transportation service

 2  and is not paid by the hour or on some other time-measured

 3  basis.

 4         5.  A person whose employment is both casual and not in

 5  the course of the trade, business, profession, or occupation

 6  of the employer.

 7         6.  A volunteer, except a volunteer worker for the

 8  state or a county, municipality, or other governmental entity.

 9  A person who does not receive monetary remuneration for

10  services is presumed to be a volunteer unless there is

11  substantial evidence that a valuable consideration was

12  intended by both employer and employee. For purposes of this

13  chapter, the term "volunteer" includes, but is not limited to:

14         a.  Persons who serve in private nonprofit agencies and

15  who receive no compensation other than expenses in an amount

16  less than or equivalent to the standard mileage and per diem

17  expenses provided to salaried employees in the same agency or,

18  if such agency does not have salaried employees who receive

19  mileage and per diem, then such volunteers who receive no

20  compensation other than expenses in an amount less than or

21  equivalent to the customary mileage and per diem paid to

22  salaried workers in the community as determined by the

23  department; and

24         b.  Volunteers participating in federal programs

25  established under Pub. L. No. 93-113.

26         7.  Any officer of a corporation who elects to be

27  exempt from this chapter.

28         8.  A sole proprietor or officer of a corporation who

29  actively engages in the construction industry, and a partner

30  in a partnership that is actively engaged in the construction

31  industry, who elects to be exempt from the provisions of this

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 1  chapter. Such sole proprietor, officer, or partner is not an

 2  employee for any reason until the notice of revocation of

 3  election filed pursuant to s. 440.05 is effective.

 4         9.  An exercise rider who does not work for a single

 5  horse farm or breeder, and who is compensated for riding on a

 6  case-by-case basis, provided a written contract is entered

 7  into prior to the commencement of such activity which

 8  evidences that an employee/employer relationship does not

 9  exist.

10         10.  A taxicab, limousine, or other passenger

11  vehicle-for-hire driver who operates said vehicles pursuant to

12  a written agreement with a company which provides any

13  dispatch, marketing, insurance, communications, or other

14  services under which the driver and any fees or charges paid

15  by the driver to the company for such services are not

16  conditioned upon, or expressed as a proportion of, fare

17  revenues.

18         11.  A person who performs services as a sports

19  official for an entity sponsoring an interscholastic sports

20  event or for a public entity or private, nonprofit

21  organization that sponsors an amateur sports event. For

22  purposes of this subparagraph, such a person is an independent

23  contractor. For purposes of this subparagraph, the term

24  "sports official" means any person who is a neutral

25  participant in a sports event, including, but not limited to,

26  umpires, referees, judges, linespersons, scorekeepers, or

27  timekeepers. This subparagraph does not apply to any person

28  employed by a district school board who serves as a sports

29  official as required by the employing school board or who

30  serves as a sports official as part of his or her

31  responsibilities during normal school hours.

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 1         Section 37.  Paragraph (n) of subsection (21) of

 2  section 443.036, Florida Statutes, is amended to read:

 3         443.036  Definitions.--As used in this chapter, unless

 4  the context clearly requires otherwise:

 5         (21)  EMPLOYMENT.--"Employment," subject to the other

 6  provisions of this chapter, means any service performed by an

 7  employee for the person employing him or her.

 8         (n)  Exclusions generally.--The term "employment" does

 9  not include:

10         1.  Domestic service in a private home, local college

11  club, or local chapter of a college fraternity or sorority,

12  except as provided in paragraph (g).

13         2.  Service performed on or in connection with a vessel

14  or aircraft not an American vessel or American aircraft, if

15  the employee is employed on and in connection with such vessel

16  or aircraft when outside the United States.

17         3.  Service performed by an individual in, or as an

18  officer or member of the crew of a vessel while it is engaged

19  in, the catching, taking, harvesting, cultivating, or farming

20  of any kind of fish, shellfish, crustacea, sponges, seaweeds,

21  or other aquatic forms of animal and vegetable life, including

22  service performed by any such individual as an ordinary

23  incident to any such activity, except:

24         a.  Service performed in connection with the catching

25  or taking of salmon or halibut for commercial purposes.

26         b.  Service performed on, or in connection with, a

27  vessel of more than 10 net tons, determined in the manner

28  provided for determining the register tonnage of merchant

29  vessels under the laws of the United States.

30         4.  Service performed by an individual in the employ of

31  his or her son, daughter, or spouse, including step

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 1  relationships, and service performed by a child, or stepchild,

 2  under the age of 21 in the employ of his or her father or

 3  mother, or stepfather or stepmother.

 4         5.  Service performed in the employ of the United

 5  States Government or of an instrumentality of the United

 6  States which is:

 7         a.  Wholly or partially owned by the United States.

 8         b.  Exempt from the tax imposed by s. 3301 of the

 9  Internal Revenue Code by virtue of any provision of federal

10  law which specifically refers to such section, or the

11  corresponding section of prior law, in granting such

12  exemption; except that to the extent that the Congress shall

13  permit states to require any instrumentalities of the United

14  States to make payments into an unemployment fund under a

15  state unemployment compensation law, all of the provisions of

16  this law shall be applicable to such instrumentalities, and to

17  services performed for such instrumentalities, in the same

18  manner, to the same extent, and on the same terms as to all

19  other employers, employing units, individuals, and services.

20  If this state is not certified for any year by the Secretary

21  of Labor under s. 3304 of the federal Internal Revenue Code,

22  the payments required of such instrumentalities with respect

23  to such year shall be refunded by the division from the fund

24  in the same manner and within the same period as is provided

25  in s. 443.141(6) with respect to contributions erroneously

26  collected.

27         6.  Service performed in the employ of a state, or any

28  political subdivision thereof, or any instrumentality of any

29  one or more of the foregoing which is wholly owned by one or

30  more states or political subdivisions, except as provided in

31  paragraph (b), and any service performed in the employ of any

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 1  instrumentality of one or more states or political

 2  subdivisions, to the extent that the instrumentality is, with

 3  respect to such service, immune under the Constitution of the

 4  United States from the tax imposed by s. 3301 of the Internal

 5  Revenue Code.

 6         7.  Service performed in the employ of a corporation,

 7  community chest, fund, or foundation, organized and operated

 8  exclusively for religious, charitable, scientific, testing for

 9  public safety, literary, or educational purposes, or for the

10  prevention of cruelty to children or animals, no part of the

11  net earnings of which inures to the benefit of any private

12  shareholder or individual, no substantial part of the

13  activities of which is carrying on propaganda or otherwise

14  attempting to influence legislation, and which does not

15  participate in, or intervene in (including the publishing or

16  distributing of statements), any political campaign on behalf

17  of any candidate for public office, except as provided in

18  paragraph (c).

19         8.  Service with respect to which unemployment

20  compensation is payable under an unemployment compensation

21  system established by an Act of Congress.

22         9.a.  Service performed in any calendar quarter in the

23  employ of any organization exempt from income tax under s.

24  501(a) of the Internal Revenue Code, other than an

25  organization described in s. 401(a), or under s. 521, if the

26  remuneration for such service is less than $50.

27         b.  Service performed in the employ of a school,

28  college, or university, if such service is performed by a

29  student who is enrolled and is regularly attending classes at

30  such school, college, or university.

31  

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 1         10.  Service performed in the employ of a foreign

 2  government, including service as a consular or other officer

 3  or employee of a nondiplomatic representative.

 4         11.  Service performed in the employ of an

 5  instrumentality wholly owned by a foreign government:

 6         a.  If the service is of a character similar to that

 7  performed in foreign countries by employees of the United

 8  States Government or of an instrumentality thereof; and

 9         b.  The Secretary of State shall certify to the

10  Secretary of the Treasury that the foreign government, with

11  respect to whose instrumentality exemption is claimed, grants

12  an equivalent exemption with respect to similar service

13  performed in the foreign country by employees of the United

14  States Government and of instrumentalities thereof.

15         12.  Service performed as a student nurse in the employ

16  of a hospital or a nurses' training school by an individual

17  who is enrolled and is regularly attending classes in a

18  nurses' training school chartered or approved pursuant to a

19  state law; service performed as an intern in the employ of a

20  hospital by an individual who has completed a 4-year course in

21  a medical school chartered or approved pursuant to state law;

22  and service performed by a patient of a hospital for such

23  hospital.

24         13.  Service performed by an individual for a person as

25  an insurance agent or as an insurance solicitor, if all such

26  service performed by such individual for such person is

27  performed for remuneration solely by way of commission, except

28  for such services performed in accordance with 26 U.S.C.S. s.

29  3306(c)(7) and (8). For purposes of this subsection, those

30  benefits excluded from the definition of wages pursuant to

31  

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 1  subparagraphs (40)(b)2.-6., inclusive, shall not be considered

 2  remuneration.

 3         14.  Service performed by an individual for a person as

 4  a real estate licensee salesperson or agent, if all such

 5  service performed by such individual for such person is

 6  performed for remuneration solely by way of commission.

 7         15.  Service performed by an individual under the age

 8  of 18 in the delivery or distribution of newspapers or

 9  shopping news, not including delivery or distribution to any

10  point for subsequent delivery or distribution.

11         16.  Service covered by an arrangement between the

12  division and the agency charged with the administration of any

13  other state or federal unemployment compensation law pursuant

14  to which all services performed by an individual for an

15  employing unit during the period covered by such employing

16  unit's duly approved election are deemed to be performed

17  entirely within such agency's state or under such federal law.

18         17.  Service performed by an individual who is enrolled

19  at a nonprofit or public educational institution which

20  normally maintains a regular faculty and curriculum and

21  normally has a regularly organized body of students in

22  attendance at the place where its educational activities are

23  carried on as a student in a full-time program, taken for

24  credit at such institution, which combines academic

25  instruction with work experience, if such service is an

26  integral part of such program, and such institution has so

27  certified to the employer, except that this subparagraph does

28  not apply to service performed in a program established for or

29  on behalf of an employer or group of employers.

30         18.  Service performed by an individual for a person as

31  a barber, if all such service performed by such individual for

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 1  such person is performed for remuneration solely by way of

 2  commission.

 3         19.  Casual labor not in the course of the employer's

 4  trade or business.

 5         20.  Service performed by a speech therapist,

 6  occupational therapist, or physical therapist who is

 7  nonsalaried and working pursuant to a written contract with a

 8  home health agency as defined in s. 400.462.

 9         21.  Service performed by a direct seller. For purposes

10  of this subparagraph, the term "direct seller" means a person:

11         a.(I)  Who is engaged in the trade or business of

12  selling or soliciting the sale of consumer products to buyers

13  on a buy-sell basis or a deposit-commission basis, or on any

14  similar basis, for resale in the home or in any other place

15  that is not a permanent retail establishment; or

16         (II)  Who is engaged in the trade or business of

17  selling or soliciting the sale of consumer products in the

18  home or in any other place that is not a permanent retail

19  establishment;

20         b.  Substantially all of whose remuneration for

21  services described in sub-subparagraph a., whether or not paid

22  in cash, is directly related to sales or other output, rather

23  than to the number of hours worked; and

24         c.  Who performs such services pursuant to a written

25  contract with the person for whom the services are performed,

26  which contract provides that the person will not be treated as

27  an employee with respect to such services for federal tax

28  purposes.

29         22.  Service performed by a nonresident alien

30  individual for the period he or she is temporarily present in

31  the United States as a nonimmigrant under subparagraph (F) or

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 1  subparagraph (J) of s. 101(a)(15) of the Immigration and

 2  Nationality Act, and which is performed to carry out the

 3  purpose specified in subparagraph (F) or subparagraph (J), as

 4  the case may be.

 5         23.  Service performed by an individual for

 6  remuneration for a private, for-profit delivery or messenger

 7  service, if the individual:

 8         a.  Is free to accept or reject jobs from the delivery

 9  or messenger service and the delivery or messenger service has

10  no control over when the individual works;

11         b.  Is remunerated for each delivery, or the

12  remuneration is based on factors that relate to the work

13  performed, including receipt of a percentage of any rate

14  schedule;

15         c.  Pays all expenses and the opportunity for profit or

16  loss rests solely with the individual;

17         d.  Is responsible for operating costs, including fuel,

18  repairs, supplies, and motor vehicle insurance;

19         e.  Determines the method of performing the service,

20  including selection of routes and order of deliveries;

21         f.  Is responsible for the completion of a specific job

22  and is liable for any failure to complete that job;

23         g.  Enters into a contract with the delivery or

24  messenger service which specifies the relationship of the

25  individual to the delivery or messenger service to be that of

26  an independent contractor and not that of an employee; and

27         h.  Provides the vehicle used to perform the service.

28         24.  Service performed in agricultural labor by an

29  individual who is an alien admitted to the United States to

30  perform service in agricultural labor pursuant to ss.

31  

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 1  101(a)(15)(H) and 214(c) of the Immigration and Nationality

 2  Act.

 3         25.  Service performed by a person who is an inmate of

 4  a penal institution.

 5         Section 38.  Subsection (25) of section 501.604,

 6  Florida Statutes, is amended to read:

 7         501.604  Exemptions.--The provisions of this part,

 8  except ss. 501.608 and 501.616(6) and (7), do not apply to:

 9         (25)  A person who is a licensed real estate

10  salesperson or broker pursuant to chapter 475 and who is

11  soliciting within the scope of the chapter.

12         Section 39.  Subsection (4) of section 687.14, Florida

13  Statutes, is amended to read:

14         687.14  Definitions.--As used in this act, unless the

15  context otherwise requires:

16         (4)  "Loan broker" means any person, except any bank or

17  savings and loan association, trust company, building and loan

18  association, credit union, consumer finance company, retail

19  installment sales company, securities broker-dealer, real

20  estate broker or sales associate salesperson, attorney,

21  federal Housing Administration or United States Department of

22  Veterans Affairs approved lender, credit card company,

23  installment loan licensee, mortgage broker or lender, or

24  insurance company, provided that the person excepted is

25  licensed by and subject to regulation or supervision of any

26  agency of the United States or this state and is acting within

27  the scope of the license; and also excepting subsidiaries of

28  licensed or chartered consumer finance companies, banks, or

29  savings and loan associations; who:

30  

31  

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 1         (a)  For or in expectation of consideration arranges or

 2  attempts to arrange or offers to fund a loan of money, a

 3  credit card, or a line of credit;

 4         (b)  For or in expectation of consideration assists or

 5  advises a borrower in obtaining or attempting to obtain a loan

 6  of money, a credit card, a line of credit, or related

 7  guarantee, enhancement, or collateral of any kind or nature;

 8         (c)  Acts for or on behalf of a loan broker for the

 9  purpose of soliciting borrowers; or

10         (d)  Holds herself or himself out as a loan broker.

11         Section 40.  Subsections (1) and (6) of section 721.20,

12  Florida Statutes, are amended to read:

13         721.20  Licensing requirements; suspension or

14  revocation of license; exceptions to applicability; collection

15  of advance fees for listings unlawful.--

16         (1)  Any seller of a timeshare plan must be a licensed

17  real estate salesperson, broker, broker associate, or sales

18  associate broker-salesperson as defined in s. 475.01, except

19  as provided in s. 475.011.

20         (6)  Notwithstanding the provisions of s. 475.452, it

21  is unlawful for any real estate broker, broker associate

22  salesperson, or sales associate broker-salesperson to collect

23  any advance fee for the listing of any timeshare estate or

24  timeshare license.

25         Section 41.  Paragraph (a) of subsection (1) of section

26  760.29, Florida Statutes, is amended to read:

27         760.29  Exemptions.--

28         (1)(a)  Nothing in ss. 760.23 and 760.25 applies to:

29         1.  Any single-family house sold or rented by its

30  owner, provided such private individual owner does not own

31  more than three single-family houses at any one time. In the

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 1  case of the sale of a single-family house by a private

 2  individual owner who does not reside in such house at the time

 3  of the sale or who was not the most recent resident of the

 4  house prior to the sale, the exemption granted by this

 5  paragraph applies only with respect to one sale within any

 6  24-month period. In addition, the bona fide private individual

 7  owner shall not own any interest in, nor shall there be owned

 8  or reserved on his or her behalf, under any express or

 9  voluntary agreement, title to, or any right to all or a

10  portion of the proceeds from the sale or rental of, more than

11  three single-family houses at any one time. The sale or rental

12  of any single-family house shall be excepted from the

13  application of ss. 760.20-760.37 only if the house is sold or

14  rented:

15         a.  Without the use in any manner of the sales or

16  rental facilities or the sales or rental services of any real

17  estate licensee broker, agent, or salesperson or such

18  facilities or services of any person in the business of

19  selling or renting dwellings, or of any employee or agent of

20  any such licensee broker, agent, salesperson, or person; and

21         b.  Without the publication, posting, or mailing, after

22  notice, of any advertisement or written notice in violation of

23  s. 760.23(3).

24  

25  Nothing in this provision prohibits the use of attorneys,

26  escrow agents, abstractors, title companies, and other such

27  professional assistance as is necessary to perfect or transfer

28  the title.

29         2.  Rooms or units in dwellings containing living

30  quarters occupied or intended to be occupied by no more than

31  four families living independently of each other, if the owner

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 1  actually maintains and occupies one of such living quarters as

 2  his or her residence.

 3         Section 42.  This act shall take effect July 1, 2003.

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                             SB 1266

 3                                 

 4  The committee substitute redefines the terms "broker
    salesperson" and "salesperson" with the terms "broker
 5  associate" and "sales associate."  It reinstates the Attorney
    General's authority to approve the independent legal counsel
 6  retained by the commission that was abolished by the bill.  It
    deletes the provision in the bill that authorizes the
 7  commission to certify or approve the delivery mechanism for
    distance learning courses.  It reinstates the requirement
 8  eliminated by the bill that if a partnership is a limited
    partnership, only the general partners must be licensed
 9  brokers or brokerage corporations registered under part I of
    ch. 475, F.S.  It deletes the provision in the bill that would
10  have added the requirement that the initial license of a
    broker or broker associate shall be issued for a period of not
11  less than 18 months and not more than 24 months.  It
    reinstates the current provision regarding the frequency of
12  rulemaking by the Department of Business and Professional
    Regulation (department) for the renewal of licenses.  It
13  requires a real estate school to file with the commission the
    names of any sales associates or instructors who are no longer
14  employed by the brokerage or school.  It provides for the
    investment of escrow monies by brokers.  It deletes the
15  provisions in the bill that would have narrowed the
    circumstances in which a real estate licensee must follow one
16  of the procedures set forth in s. 475.25(1)(d), F.S., to
    resolve a conflict involving escrowed property.  It maintains
17  the commission's authority to establish rules regarding the
    manner in which deposits in escrow accounts are to be made.
18  It deletes the provisions in the bill that provided guidelines
    for real estate transactions in cooperation between licensees
19  and professional's licensed out-of-state.  It permits a broker
    to maintain up to $1000 of personal or brokerage funds in the
20  broker's sales escrow account.  It amends s. 475.278, F.S., to
    create a presumption of a transaction brokerage.  It provides
21  that disclosures in s. 475.278(2)(b), F.S., for a transaction
    brokerage relationship expire on July 1, 2008.  It provides a
22  new disclosure form for the transaction brokerage
    relationship.  It provides procedures for changing a single
23  agent relationship into a transaction brokerage relationship.
    It deletes s. 475.4005, F.S., from the bill, which would have
24  transferred the responsibility for enforcing the prohibition
    against unlicensed activity from the department to the
25  commission.  It amends s. 475.42, F.S., to make the violations
    in paragraph (l) a felony of the third degree.  It decreases
26  from 15 to 7 the minimum number of classroom hours of
    instruction needed to renew an instructor permit.  It
27  reinstates the prohibition deleted by the bill that a person,
    school, or institution cannot guarantee that its pupils will
28  pass any examination required for licensure.  It repeals s.
    475.4511(4),F.S.  It does not repeal s. 475.452, F.S., which
29  was repealed by the bill.  It creates s. 475.423, F.S., which
    requires that certain disclosures be made for any transfer by
30  sale, exchange, or installment land sale contract of
    residential, undeveloped, or commerical land.
31  

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