97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1830

 

Introduced 2/9/2011, by Sen. Gary Forby

 

SYNOPSIS AS INTRODUCED:
 
225 ILCS 454/20-20
225 ILCS 454/20-78 new

    Amends the Real Estate License Act of 2000. Changes provisions concerning the grounds for discipline of a licensee for convictions of certain crimes. Permits the Department to disclose information and documents related to an examination or investigation of a licensee or applicant only to law enforcement officials, other regulatory agencies that have an appropriate regulatory interest as determined by the Secretary, or a party presenting a lawful subpoena to the Department. Provides that any formal complaint against a licensee filed with the Department or an order issued by the Department against a licensee or applicant shall be a public record. Effective immediately.


LRB097 08660 CEL 48789 b

 

 

A BILL FOR

 

SB1830LRB097 08660 CEL 48789 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Real Estate License Act of 2000 is amended
5by changing Section 20-20 and by adding Section 20-78 as
6follows:
 
7    (225 ILCS 454/20-20)
8    (Section scheduled to be repealed on January 1, 2020)
9    Sec. 20-20. Grounds for discipline.
10    (a) The Department may refuse to issue or renew or a
11license, may revoke, suspend, place on probation, suspend, or
12revoke any license, reprimand, or take any other disciplinary
13or non-disciplinary action as the Department may deem
14appropriate, including imposing fines proper or impose a fine
15not to exceed $25,000 upon any licensee under this Act or
16against a licensee in handling his or her own property, whether
17held by deed, option, or otherwise, for each violation, with
18regard to any license, for any one or any combination of the
19following causes:
20        (1) Fraud or misrepresentation in applying for, or
21    procuring, a license under this Act or in connection with
22    applying for renewal of a license under this Act.
23        (2) Conviction by plea of guilty or nolo contendere,

 

 

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1    finding of guilt, jury verdict, or entry of judgment or by
2    sentencing of any crime, including, but not limited to,
3    convictions, preceding sentences of supervision,
4    conditional discharge, or first offender probation, under
5    the laws of any jurisdiction of the United States: (i) that
6    is a felony; or (ii) that is a misdemeanor, an essential
7    element of which is dishonesty, or that is directly related
8    to the practice of the profession. The conviction of, plea
9    of guilty or plea of nolo contendre to a felony or
10    misdemeanor, an essential element of which is dishonesty or
11    fraud or larceny, embezzlement, or obtaining money,
12    property, or credit by false pretenses or by means of a
13    confidence game, in this State, or any other jurisdiction.
14        (3) Inability to practice the profession with
15    reasonable judgment, skill, or safety as a result of a
16    physical illness, including, but not limited to,
17    deterioration through the aging process or loss of motor
18    skill, or a mental illness or disability.
19        (4) Practice under this Act as a licensee in a retail
20    sales establishment from an office, desk, or space that is
21    not separated from the main retail business by a separate
22    and distinct area within the establishment.
23        (5) Disciplinary action of another state or
24    jurisdiction against the license or other authorization to
25    practice as a managing broker, broker, salesperson, or
26    leasing agent if at least one of the grounds for that

 

 

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1    discipline is the same as or the equivalent of one of the
2    grounds for discipline set forth in this Act. A certified
3    copy of the record of the action by the other state or
4    jurisdiction shall be prima facie evidence thereof.
5        (6) Engaging in the practice of real estate brokerage
6    without a license or after the licensee's license was
7    expired or while the license was inoperative.
8        (7) Cheating on or attempting to subvert the Real
9    Estate License Exam or continuing education exam.
10        (8) Aiding or abetting an applicant to subvert or cheat
11    on the Real Estate License Exam or continuing education
12    exam administered pursuant to this Act.
13        (9) Advertising that is inaccurate, misleading, or
14    contrary to the provisions of the Act.
15        (10) Making any substantial misrepresentation or
16    untruthful advertising.
17        (11) Making any false promises of a character likely to
18    influence, persuade, or induce.
19        (12) Pursuing a continued and flagrant course of
20    misrepresentation or the making of false promises through
21    licensees, employees, agents, advertising, or otherwise.
22        (13) Any misleading or untruthful advertising, or
23    using any trade name or insignia of membership in any real
24    estate organization of which the licensee is not a member.
25        (14) Acting for more than one party in a transaction
26    without providing written notice to all parties for whom

 

 

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1    the licensee acts.
2        (15) Representing or attempting to represent a broker
3    other than the sponsoring broker.
4        (16) Failure to account for or to remit any moneys or
5    documents coming into his or her possession that belong to
6    others.
7        (17) Failure to maintain and deposit in a special
8    account, separate and apart from personal and other
9    business accounts, all escrow moneys belonging to others
10    entrusted to a licensee while acting as a real estate
11    broker, escrow agent, or temporary custodian of the funds
12    of others or failure to maintain all escrow moneys on
13    deposit in the account until the transactions are
14    consummated or terminated, except to the extent that the
15    moneys, or any part thereof, shall be:
16            (A) disbursed prior to the consummation or
17        termination (i) in accordance with the written
18        direction of the principals to the transaction or their
19        duly authorized agents, (ii) in accordance with
20        directions providing for the release, payment, or
21        distribution of escrow moneys contained in any written
22        contract signed by the principals to the transaction or
23        their duly authorized agents, or (iii) pursuant to an
24        order of a court of competent jurisdiction; or
25            (B) deemed abandoned and transferred to the Office
26        of the State Treasurer to be handled as unclaimed

 

 

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1        property pursuant to the Uniform Disposition of
2        Unclaimed Property Act. Escrow moneys may be deemed
3        abandoned under this subparagraph (B) only: (i) in the
4        absence of disbursement under subparagraph (A); (ii)
5        in the absence of notice of the filing of any claim in
6        a court of competent jurisdiction; and (iii) if 6
7        months have elapsed after the receipt of a written
8        demand for the escrow moneys from one of the principals
9        to the transaction or the principal's duly authorized
10        agent.
11    The account shall be noninterest bearing, unless the
12    character of the deposit is such that payment of interest
13    thereon is otherwise required by law or unless the
14    principals to the transaction specifically require, in
15    writing, that the deposit be placed in an interest bearing
16    account.
17        (18) Failure to make available to the Department all
18    escrow records and related documents maintained in
19    connection with the practice of real estate within 24 hours
20    of a request for those documents by Department personnel.
21        (19) Failing to furnish copies upon request of
22    documents relating to a real estate transaction to a party
23    who has executed that document.
24        (20) Failure of a sponsoring broker to timely provide
25    information, sponsor cards, or termination of licenses to
26    the Department.

 

 

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1        (21) Engaging in dishonorable, unethical, or
2    unprofessional conduct of a character likely to deceive,
3    defraud, or harm the public.
4        (22) Commingling the money or property of others with
5    his or her own money or property.
6        (23) Employing any person on a purely temporary or
7    single deal basis as a means of evading the law regarding
8    payment of commission to nonlicensees on some contemplated
9    transactions.
10        (24) Permitting the use of his or her license as a
11    broker to enable a salesperson or unlicensed person to
12    operate a real estate business without actual
13    participation therein and control thereof by the broker.
14        (25) Any other conduct, whether of the same or a
15    different character from that specified in this Section,
16    that constitutes dishonest dealing.
17        (26) Displaying a "for rent" or "for sale" sign on any
18    property without the written consent of an owner or his or
19    her duly authorized agent or advertising by any means that
20    any property is for sale or for rent without the written
21    consent of the owner or his or her authorized agent.
22        (27) Failing to provide information requested by the
23    Department, or otherwise respond to that request, within 30
24    days of the request.
25        (28) Advertising by means of a blind advertisement,
26    except as otherwise permitted in Section 10-30 of this Act.

 

 

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1        (29) Offering guaranteed sales plans, as defined in
2    clause (A) of this subdivision (29), except to the extent
3    hereinafter set forth:
4            (A) A "guaranteed sales plan" is any real estate
5        purchase or sales plan whereby a licensee enters into a
6        conditional or unconditional written contract with a
7        seller, prior to entering into a brokerage agreement
8        with the seller, by the terms of which a licensee
9        agrees to purchase a property of the seller within a
10        specified period of time at a specific price in the
11        event the property is not sold in accordance with the
12        terms of a brokerage agreement to be entered into
13        between the sponsoring broker and the seller.
14            (B) A licensee offering a guaranteed sales plan
15        shall provide the details and conditions of the plan in
16        writing to the party to whom the plan is offered.
17            (C) A licensee offering a guaranteed sales plan
18        shall provide to the party to whom the plan is offered
19        evidence of sufficient financial resources to satisfy
20        the commitment to purchase undertaken by the broker in
21        the plan.
22            (D) Any licensee offering a guaranteed sales plan
23        shall undertake to market the property of the seller
24        subject to the plan in the same manner in which the
25        broker would market any other property, unless the
26        agreement with the seller provides otherwise.

 

 

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1            (E) The licensee cannot purchase seller's property
2        until the brokerage agreement has ended according to
3        its terms or is otherwise terminated.
4            (F) Any licensee who fails to perform on a
5        guaranteed sales plan in strict accordance with its
6        terms shall be subject to all the penalties provided in
7        this Act for violations thereof and, in addition, shall
8        be subject to a civil fine payable to the party injured
9        by the default in an amount of up to $25,000.
10        (30) Influencing or attempting to influence, by any
11    words or acts, a prospective seller, purchaser, occupant,
12    landlord, or tenant of real estate, in connection with
13    viewing, buying, or leasing real estate, so as to promote
14    or tend to promote the continuance or maintenance of
15    racially and religiously segregated housing or so as to
16    retard, obstruct, or discourage racially integrated
17    housing on or in any street, block, neighborhood, or
18    community.
19        (31) Engaging in any act that constitutes a violation
20    of any provision of Article 3 of the Illinois Human Rights
21    Act, whether or not a complaint has been filed with or
22    adjudicated by the Human Rights Commission.
23        (32) Inducing any party to a contract of sale or lease
24    or brokerage agreement to break the contract of sale or
25    lease or brokerage agreement for the purpose of
26    substituting, in lieu thereof, a new contract for sale or

 

 

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1    lease or brokerage agreement with a third party.
2        (33) Negotiating a sale, exchange, or lease of real
3    estate directly with any person if the licensee knows that
4    the person has an exclusive brokerage agreement with
5    another broker, unless specifically authorized by that
6    broker.
7        (34) When a licensee is also an attorney, acting as the
8    attorney for either the buyer or the seller in the same
9    transaction in which the licensee is acting or has acted as
10    a broker or salesperson.
11        (35) Advertising or offering merchandise or services
12    as free if any conditions or obligations necessary for
13    receiving the merchandise or services are not disclosed in
14    the same advertisement or offer. These conditions or
15    obligations include without limitation the requirement
16    that the recipient attend a promotional activity or visit a
17    real estate site. As used in this subdivision (35), "free"
18    includes terms such as "award", "prize", "no charge", "free
19    of charge", "without charge", and similar words or phrases
20    that reasonably lead a person to believe that he or she may
21    receive or has been selected to receive something of value,
22    without any conditions or obligations on the part of the
23    recipient.
24        (36) Disregarding or violating any provision of the
25    Land Sales Registration Act of 1989, the Illinois Real
26    Estate Time-Share Act, or the published rules promulgated

 

 

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1    by the Department to enforce those Acts.
2        (37) Violating the terms of a disciplinary order issued
3    by the Department.
4        (38) Paying or failing to disclose compensation in
5    violation of Article 10 of this Act.
6        (39) Requiring a party to a transaction who is not a
7    client of the licensee to allow the licensee to retain a
8    portion of the escrow moneys for payment of the licensee's
9    commission or expenses as a condition for release of the
10    escrow moneys to that party.
11        (40) Disregarding or violating any provision of this
12    Act or the published rules promulgated by the Department to
13    enforce this Act or aiding or abetting any individual,
14    partnership, registered limited liability partnership,
15    limited liability company, or corporation in disregarding
16    any provision of this Act or the published rules
17    promulgated by the Department to enforce this Act.
18        (41) Failing to provide the minimum services required
19    by Section 15-75 of this Act when acting under an exclusive
20    brokerage agreement.
21        (42) Habitual or excessive use or addiction to alcohol,
22    narcotics, stimulants, or any other chemical agent or drug
23    that results in a managing broker, broker, salesperson, or
24    leasing agent's inability to practice with reasonable
25    skill or safety.
26    (b) The Department may refuse to issue or renew or may

 

 

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1suspend the license of any person who fails to file a return,
2pay the tax, penalty or interest shown in a filed return, or
3pay any final assessment of tax, penalty, or interest, as
4required by any tax Act administered by the Department of
5Revenue, until such time as the requirements of that tax Act
6are satisfied in accordance with subsection (g) of Section
72105-15 of the Civil Administrative Code of Illinois.
8    (c) The Department shall deny a license or renewal
9authorized by this Act to a person who has defaulted on an
10educational loan or scholarship provided or guaranteed by the
11Illinois Student Assistance Commission or any governmental
12agency of this State in accordance with item (5) of subsection
13(g) of Section 2105-15 of the Civil Administrative Code of
14Illinois.
15    (d) In cases where the Department of Healthcare and Family
16Services (formerly Department of Public Aid) has previously
17determined that a licensee or a potential licensee is more than
1830 days delinquent in the payment of child support and has
19subsequently certified the delinquency to the Department may
20refuse to issue or renew or may revoke or suspend that person's
21license or may take other disciplinary action against that
22person based solely upon the certification of delinquency made
23by the Department of Healthcare and Family Services in
24accordance with item (5) of subsection (g) of Section 2105-15
25of the Civil Administrative Code of Illinois.
26    (e) In enforcing this Section, the Department or Board upon

 

 

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1a showing of a possible violation may compel an individual
2licensed to practice under this Act, or who has applied for
3licensure under this Act, to submit to a mental or physical
4examination, or both, as required by and at the expense of the
5Department. The Department or Board may order the examining
6physician to present testimony concerning the mental or
7physical examination of the licensee or applicant. No
8information shall be excluded by reason of any common law or
9statutory privilege relating to communications between the
10licensee or applicant and the examining physician. The
11examining physicians shall be specifically designated by the
12Board or Department. The individual to be examined may have, at
13his or her own expense, another physician of his or her choice
14present during all aspects of this examination. Failure of an
15individual to submit to a mental or physical examination, when
16directed, shall be grounds for suspension of his or her license
17until the individual submits to the examination if the
18Department finds, after notice and hearing, that the refusal to
19submit to the examination was without reasonable cause.
20    If the Department or Board finds an individual unable to
21practice because of the reasons set forth in this Section, the
22Department or Board may require that individual to submit to
23care, counseling, or treatment by physicians approved or
24designated by the Department or Board, as a condition, term, or
25restriction for continued, reinstated, or renewed licensure to
26practice; or, in lieu of care, counseling, or treatment, the

 

 

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1Department may file, or the Board may recommend to the
2Department to file, a complaint to immediately suspend, revoke,
3or otherwise discipline the license of the individual. An
4individual whose license was granted, continued, reinstated,
5renewed, disciplined or supervised subject to such terms,
6conditions, or restrictions, and who fails to comply with such
7terms, conditions, or restrictions, shall be referred to the
8Secretary for a determination as to whether the individual
9shall have his or her license suspended immediately, pending a
10hearing by the Department.
11    In instances in which the Secretary immediately suspends a
12person's license under this Section, a hearing on that person's
13license must be convened by the Department within 30 days after
14the suspension and completed without appreciable delay. The
15Department and Board shall have the authority to review the
16subject individual's record of treatment and counseling
17regarding the impairment to the extent permitted by applicable
18federal statutes and regulations safeguarding the
19confidentiality of medical records.
20    An individual licensed under this Act and affected under
21this Section shall be afforded an opportunity to demonstrate to
22the Department or Board that he or she can resume practice in
23compliance with acceptable and prevailing standards under the
24provisions of his or her license.
25(Source: P.A. 95-851, eff. 1-1-09; 96-856, eff. 12-31-09.)
 

 

 

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1    (225 ILCS 454/20-78 new)
2    Sec. 20-78. Confidentiality. All information collected by
3the Department in the course of an examination or investigation
4of a licensee or applicant, including, but not limited to, any
5complaint against a licensee filed with the Department and
6information collected to investigate any such complaint, shall
7be maintained for the confidential use of the Department and
8shall not be disclosed. The Department may not disclose the
9information to anyone other than law enforcement officials,
10other regulatory agencies that have an appropriate regulatory
11interest as determined by the Secretary, or to a party
12presenting a lawful subpoena to the Department. Information and
13documents disclosed to a federal, State, county, or local law
14enforcement agency shall not be disclosed by the agency for any
15purpose to any other agency or person. A formal complaint filed
16against a licensee by the Department or any order issued by the
17Department against a licensee or applicant shall be a public
18record, except as otherwise prohibited by law.
 
19    Section 99. Effective date. This Act takes effect upon
20becoming law.