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REAL ESTATE AGENCY

 

DIVISION 27

INVESTIGATIONS AND DISCIPLINE

863-027-0000

Applicability and Purpose

This division applies to licensed real estate brokers and property managers. It describes the methods and procedures the Agency will use to investigate complaints and the process the Agency will follow when taking disciplinary action.

Stat. Auth.: ORS 696.385
Stat. Implemented: ORS 696.396
Hist.: REA 9-2008, f. 12-15-08, cert. ef. 1-1-09

863-027-0005

Definitions

As used in this division, unless the context requires otherwise, the following definitions apply:

(1) "Agency" is defined in ORS 696.010.

(2) "Commissioner" is defined in ORS 696.010.

Stat. Auth.: ORS 696.385
Stat. Implemented: ORS 696.010
Hist.: REA 9-2008, f. 12-15-08, cert. ef. 1-1-09

863-027-0010

Investigation of Licensees: Procedures and Reporting

(1) The agency shall use the methods and procedures in this rule to investigate complaints that allege grounds for discipline under ORS 696.301.

(a) The commissioner or an agency manager shall review the complaint to determine whether there are reasonable grounds to believe that a violation of ORS 696.007 to 696.995, or any rule promulgated thereunder, may have occurred that constitutes grounds for discipline under 696.301. Reasonable grounds means a reasonable belief in facts or circumstances which, if true, would in law constitute a violation of 696.007 to 696.995 or its implementing rules.

(b) If the commissioner or an agency manager determines there are reasonable grounds to believe a violation may have occurred, the agency will initiate an investigation. The individual assigned to investigate the complaint shall gather all relevant facts in an objective, impartial and unbiased manner. The investigative report must contain all facts discovered during the investigation, including facts which may be exculpatory or mitigating.

(c) The individual assigned to investigate the complaint will promptly notify the commissioner or an agency manager if a licensee fails or refuses to cooperate in an investigation.

(d) An investigative interview may be electronically recorded if the person to be interviewed consents to the recording and states such consent on the recording.

(e) The individual assigned to investigate the complaint may not communicate with a licensee or a member of the public about the findings of the investigation, whether a violation may have occurred based on the facts, or whether the agency will initiate administrative action against a licensee.

(f) Individuals assigned to investigate complaints shall not solicit complaints against any licensee.

(g) The scope of an investigation shall be limited to the conduct or transaction(s) that formed the basis initiating the investigation. However, if there are reasonable grounds to believe that additional violations may have occurred that would result in reprimand, suspension, revocation or license denial, the commissioner or an agency manager may expand the scope of the investigation or authorize additional investigations.

(2) The investigation report shall be written in an objective manner and may not contain any conclusions about whether a violation has occurred or any recommendation regarding discipline.

(3) An agency manager will review the investigation report and file and determine whether the evidence supports charging a person under investigation with a violation of ORS 696.007 to 696.995, or any rule promulgated thereunder. The agency shall not assert, propose to stipulate to, or issue a contested case notice alleging a violation of said statutes and rules without reasonable grounds as defined in section (1)(a) of this rule.

Stat. Auth.: ORS 696.385
Stats. Implemented: ORS 696.396
Hist.: REA 4-2005(Temp), f. 12-30-05, cert. ef. 1-1-06 thru 6-29-06: REA 1-2006, f. 6-29-06, cert. ef. 6-30-06; Renumbered from 863-015-0225, REA 9-2008, f. 12-15-08, cert. ef. 1-1-09

863-027-0020

Progressive Discipline of Licensees

(1) The goal of progressive discipline is to correct a licensee's inappropriate behavior, deter the licensee from repeating the conduct, and educate the licensee to improve compliance with applicable statutes and rules. Progressive discipline means the process the agency follows, which may include using increasingly severe steps or measures against a licensee when a licensee fails to correct inappropriate behavior or exhibits subsequent instances of inappropriate behavior.

(2) The commissioner will evaluate all relevant factors to determine whether to issue a non-disciplinary educational letter of advice or to discipline a licensee through reprimand, suspension or revocation under ORS 696.301, including but not limited to:

(a) The nature of the violation;

(b) The harm caused, if any;

(c) Whether the conduct was inadvertent or intentional;

(d) The licensee's experience and education;

(e) Whether the licensee's conduct is substantially similar to conduct or an act for which the licensee was disciplined previously;

(f) Any mitigating or aggravating circumstances;

(g) The licensee's cooperation with the investigation;

(h) Any agency hearing orders addressing similar circumstances; and

(i) The licensee's volume of transactions.

(3) An agency manager may issue a non-disciplinary educational letter of advice to a licensee which includes, but is not limited to, the following statements:

(a) The commissioner has determined not to pursue disciplinary action against the licensee; and

(b) The letter is the result of an investigation and closes the investigation; and

(c) The letter is not disciplinary in nature and will not appear in the agency's disciplinary records; and

(d) The purpose of the letter is to educate the licensee; and

(e) The letter will be expunged from the agency's records six years from the date of issuance.

(4) A reprimand is the maximum disciplinary action the commissioner may issue against a licensee if the licensee has committed an act or conduct that constitutes grounds for discipline under ORS 696.301 and such act or conduct does not:

(a) Result in significant damage or injury;

(b) Exhibit incompetence in the performance of professional real estate activity;

(c) Exhibit dishonesty or fraudulent conduct; or

(d) Repeat conduct or an act that is substantially similar to conduct or an act for which the real estate licensee was disciplined previously.

(5) The commissioner may impose suspension or revocation only if the licensee has committed an act that constitutes grounds for discipline under ORS 696.301 and such act also meets the requirements of 696.396(2)(c).

Stat. Auth.: ORS 696.385 & 696.396
Stats. Implemented: ORS 696.241 & 696.301
Hist.: REA 4-2005(Temp), f. 12-30-05, cert. ef. 1-1-06 thru 6-29-06; REA 1-2006, f. 6-29-06, cert. ef. 6-30-06; Renumbered from 863-015-0230, REA 9-2008, f. 12-15-08, cert. ef. 1-1-09

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