Illinois General Assembly - Full Text of SB0092
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Full Text of SB0092  98th General Assembly

SB0092ham001 98TH GENERAL ASSEMBLY

Rep. Jim Sacia

Filed: 5/24/2013

 

 


 

 


 
09800SB0092ham001LRB098 06113 MGM 46341 a

1
AMENDMENT TO SENATE BILL 92

2    AMENDMENT NO. ______. Amend Senate Bill 92 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Auction License Act is amended by changing
5Sections 5-10 and 20-15 as follows:
 
6    (225 ILCS 407/5-10)
7    (Section scheduled to be repealed on January 1, 2020)
8    Sec. 5-10. Definitions. As used in this Act:
9    "Advertisement" means any written, oral, or electronic
10communication that contains a promotion, inducement, or offer
11to conduct an auction or offer to provide an auction service,
12including but not limited to brochures, pamphlets, radio and
13television scripts, telephone and direct mail solicitations,
14electronic media, and other means of promotion.
15    "Advisory Board" or "Board" means the Auctioneer Advisory
16Board.

 

 

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1    "Associate auctioneer" means a person who conducts an
2auction, but who is under the direct supervision of, and is
3sponsored by, a licensed auctioneer or auction firm.
4    "Auction" means the sale or lease of property, real or
5personal, by means of exchanges between an auctioneer and
6prospective purchasers or lessees, which consists of a series
7of invitations for offers made by the auctioneer and offers by
8prospective purchasers or lessees for the purpose of obtaining
9an acceptable offer for the sale or lease of the property,
10including the sale or lease of property via mail,
11telecommunications, or the Internet.
12    "Auction contract" means a written agreement between an
13auctioneer or auction firm and a seller or sellers.
14    "Auction firm" means any corporation, partnership, or
15limited liability company that acts as an auctioneer and
16provides an auction service.
17    "Auction school" means any educational institution, public
18or private, which offers a curriculum of auctioneer education
19and training approved by the Department.
20    "Auction service" means the service of arranging,
21managing, advertising, or conducting auctions.
22    "Auctioneer" means a person or entity who, for another, for
23a fee, compensation, commission, or any other valuable
24consideration at auction or with the intention or expectation
25of receiving valuable consideration by the means of or process
26of an auction or sale at auction or providing an auction

 

 

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1service, offers, negotiates, or attempts to negotiate an
2auction contract, sale, purchase, or exchange of goods,
3chattels, merchandise, personal property, real property, or
4any commodity that may be lawfully kept or offered for sale by
5or at auction.
6    "Address of Record" means the designated address recorded
7by the Department in the applicant's or licensee's application
8file or license file maintained by the Department. It is the
9duty of the applicant or licensee to inform the Department of
10any change of address, and such changes must be made either
11through the Department's website or by directly contacting the
12Department.
13    "Buyer premium" means any fee or compensation paid by the
14successful purchaser of property sold or leased at or by
15auction, to the auctioneer, auction firms, seller, lessor, or
16other party to the transaction, other than the purchase price.
17    "Department" means the Department of Financial and
18Professional Regulation.
19    "Goods" means chattels, movable goods, merchandise, or
20personal property or commodities of any form or type that may
21be lawfully kept or offered for sale.
22    "Licensee" means any person licensed under this Act.
23    "Managing auctioneer" means any person licensed as an
24auctioneer who manages and supervises licensees sponsored by an
25auction firm or auctioneer.
26    "Person" means an individual, association, partnership,

 

 

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1corporation, or limited liability company or the officers,
2directors, or employees of the same.
3    "Pre-renewal period" means the 24 months prior to the
4expiration date of a license issued under this Act.
5    "Real estate" means real estate as defined in Section 1-10
6of the Real Estate License Act of 2000 or its successor Acts.
7    "Secretary" means the Secretary of the Department of
8Financial and Professional Regulation or his or her designee.
9    "Sponsoring auctioneer" means the auctioneer or auction
10firm who has issued a sponsor card to a licensed auctioneer.
11    "Sponsor card" means the temporary permit issued by the
12sponsoring auctioneer certifying that the licensee named
13thereon is employed by or associated with the sponsoring
14auctioneer and the sponsoring auctioneer shall be responsible
15for the actions of the sponsored licensee.
16(Source: P.A. 95-572, eff. 6-1-08; 96-730, eff. 8-25-09.)
 
17    (225 ILCS 407/20-15)
18    (Section scheduled to be repealed on January 1, 2020)
19    Sec. 20-15. Disciplinary actions; grounds. The Department
20may refuse to issue or renew a license, may place on probation
21or administrative supervision, suspend, or revoke any license
22or may reprimand or take other disciplinary or non-disciplinary
23action as the Department may deem proper, including the
24imposition of fines not to exceed $10,000 for each violation
25upon anyone licensed under this Act for any of the following

 

 

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1reasons:
2        (1) False or fraudulent representation or material
3    misstatement in furnishing information to the Department
4    in obtaining or seeking to obtain a license.
5        (2) Violation of any provision of this Act or the rules
6    promulgated pursuant to this Act.
7        (3) Conviction of or entry of a plea of guilty or nolo
8    contendere to any crime that is a felony under the laws of
9    the United States or any state or territory thereof, or
10    that is a misdemeanor, an essential element of which is
11    dishonesty, or any crime that is directly related to the
12    practice of the profession.
13        (4) Being adjudged to be a person under legal
14    disability or subject to involuntary admission or to meet
15    the standard for judicial admission as provided in the
16    Mental Health and Developmental Disabilities Code.
17        (5) Discipline of a licensee by another state, the
18    District of Columbia, a territory of the United States, a
19    foreign nation, a governmental agency, or any other entity
20    authorized to impose discipline if at least one of the
21    grounds for that discipline is the same as or the
22    equivalent to one of the grounds for discipline set forth
23    in this Act or for failing to report to the Department,
24    within 30 days, any adverse final action taken against the
25    licensee by any other licensing jurisdiction, government
26    agency, law enforcement agency, or court, or liability for

 

 

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1    conduct that would constitute grounds for action as set
2    forth in this Act.
3        (6) Engaging in the practice of auctioneering,
4    conducting an auction, or providing an auction service
5    without a license or after the license was expired,
6    revoked, suspended, or terminated or while the license was
7    inoperative.
8        (7) Attempting to subvert or cheat on the auctioneer
9    exam or any continuing education exam, or aiding or
10    abetting another to do the same.
11        (8) Directly or indirectly giving to or receiving from
12    a person, firm, corporation, partnership, or association a
13    fee, commission, rebate, or other form of compensation for
14    professional service not actually or personally rendered,
15    except that an auctioneer licensed under this Act may
16    receive a fee from another licensed auctioneer from this
17    State or jurisdiction for the referring of a client or
18    prospect for auction services to the licensed auctioneer.
19        (9) Making any substantial misrepresentation or
20    untruthful advertising.
21        (10) Making any false promises of a character likely to
22    influence, persuade, or induce.
23        (11) Pursuing a continued and flagrant course of
24    misrepresentation or the making of false promises through a
25    licensee, agent, employee, advertising, or otherwise.
26        (12) Any misleading or untruthful advertising, or

 

 

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1    using any trade name or insignia of membership in any
2    auctioneer association or organization of which the
3    licensee is not a member.
4        (13) Commingling funds of others with his or her own
5    funds or failing to keep the funds of others in an escrow
6    or trustee account.
7        (14) Failure to account for, remit, or return any
8    moneys, property, or documents coming into his or her
9    possession that belong to others, acquired through the
10    practice of auctioneering, conducting an auction, or
11    providing an auction service within 30 days of the written
12    request from the owner of said moneys, property, or
13    documents.
14        (15) Failure to maintain and deposit into a special
15    account, separate and apart from any personal or other
16    business accounts, all moneys belonging to others
17    entrusted to a licensee while acting as an auctioneer,
18    associate auctioneer, auction firm, or as a temporary
19    custodian of the funds of others.
20        (16) Failure to make available to Department personnel
21    during normal business hours all escrow and trustee records
22    and related documents maintained in connection with the
23    practice of auctioneering, conducting an auction, or
24    providing an auction service within 24 hours after a
25    request from Department personnel.
26        (17) Making or filing false records or reports in his

 

 

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1    or her practice, including but not limited to false records
2    or reports filed with State agencies.
3        (18) Failing to voluntarily furnish copies of all
4    written instruments prepared by the auctioneer and signed
5    by all parties to all parties at the time of execution.
6        (19) Failing to provide information within 30 days in
7    response to a written request made by the Department.
8        (20) Engaging in any act that constitutes a violation
9    of Section 2-102, 3-103, or 3-105 of the Illinois Human
10    Rights Act.
11        (21) (Blank).
12        (22) Engaging in dishonorable, unethical, or
13    unprofessional conduct of a character likely to deceive,
14    defraud, or harm the public.
15        (23) Offering or advertising real estate for sale or
16    lease at auction without a valid broker or managing
17    broker's salesperson's license under the Real Estate
18    License Act of 1983, or any successor Act, unless exempt
19    from licensure under the terms of the Real Estate License
20    Act of 2000, or any successor Act, except as provided for
21    in Section 5-32 of the Real Estate License Act of 2000.
22        (24) Inability to practice the profession with
23    reasonable judgment judgement, skill, or safety as a result
24    of a physical illness, including, but not limited to,
25    deterioration through the aging process or loss of motor
26    skill, or a mental illness or disability.

 

 

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1        (25) A pattern of practice or other behavior that
2    demonstrates incapacity or incompetence to practice under
3    this Act.
4        (26) Being named as a perpetrator in an indicated
5    report by the Department of Children and Family Services
6    under the Abused and Neglected Child Reporting Act and upon
7    proof by clear and convincing evidence that the licensee
8    has caused a child to be an abused child or a neglected
9    child as defined in the Abused and Neglected Child
10    Reporting Act.
11        (27) Inability to practice with reasonable judgment
12    judgement, skill, or safety as a result of habitual or
13    excessive use or addiction to alcohol, narcotics,
14    stimulants, or any other chemical agent or drug.
15        (28) Wilfully failing to report an instance of
16    suspected child abuse or neglect as required by the Abused
17    and Neglected Child Reporting Act.
18    The entry of an order by a circuit court establishing that
19any person holding a license under this Act is subject to
20involuntary admission or judicial admission, as provided for in
21the Mental Health and Developmental Disabilities Code,
22operates as an automatic suspension of that license. That
23person may have his or her license restored only upon the
24determination by a circuit court that the patient is no longer
25subject to involuntary admission or judicial admission and the
26issuance of an order so finding and discharging the patient and

 

 

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1upon the Board's recommendation to the Department that the
2license be restored. Where circumstances so indicate, the Board
3may recommend to the Department that it require an examination
4prior to restoring a suspended license.
5    If the Department or Board finds an individual unable to
6practice because of the reasons set forth in this Section, the
7Department or Board may require that individual to submit to
8care, counseling, or treatment by physicians approved or
9designated by the Department or Board, as a condition, term, or
10restriction for continued, reinstated, or renewed licensure to
11practice; or, in lieu of care, counseling, or treatment, the
12Department may file, or the Board may recommend to the
13Department to file, a complaint to immediately suspend, revoke,
14or otherwise discipline the license of the individual. An
15individual whose license was granted, continued, reinstated,
16renewed, disciplined or supervised subject to such terms,
17conditions, or restrictions, and who fails to comply with such
18terms, conditions, or restrictions, shall be referred to the
19Secretary for a determination as to whether the individual
20shall have his or her license suspended immediately, pending a
21hearing by the Department. In instances in which the Secretary
22immediately suspends a person's license under this Section, a
23hearing on that person's license must be convened by the
24Department within 21 days after the suspension and completed
25without appreciable delay. The Department and Board shall have
26the authority to review the subject individual's record of

 

 

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1treatment and counseling regarding the impairment to the extent
2permitted by applicable federal statutes and regulations
3safeguarding the confidentiality of medical records.
4    An individual licensed under this Act and affected under
5this Section shall be afforded an opportunity to demonstrate to
6the Department or Board that he or she can resume practice in
7compliance with acceptable and prevailing standards under the
8provisions of his or her license.
9    In enforcing this Section, the Department or Board, upon a
10showing of a possible violation, may compel an individual
11licensed to practice under this Act, or who has applied for
12licensure under this Act, to submit to a mental or physical
13examination, or both, as required by and at the expense of the
14Department. The Department or Board may order the examining
15physician to present testimony concerning the mental or
16physical examination of the licensee or applicant. No
17information shall be excluded by reason of any common law or
18statutory privilege relating to communications between the
19licensee or applicant and the examining physician. The
20examining physicians shall be specifically designated by the
21Board or Department. The individual to be examined may have, at
22his or her own expense, another physician of his or her choice
23present during all aspects of this examination. Failure of an
24individual to submit to a mental or physical examination when
25directed shall be grounds for suspension of his or her license
26until the individual submits to the examination, if the

 

 

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1Department finds that, after notice and hearing, the refusal to
2submit to the examination was without reasonable cause.
3(Source: P.A. 95-572, eff. 6-1-08; 96-730, eff. 8-25-09.)
 
4    Section 10. The Real Estate License Act of 2000 is amended
5by changing Sections 5-20, 10-5, and 20-20 and by adding
6Sections 5-32 and 20-23 as follows:
 
7    (225 ILCS 454/5-20)
8    (Section scheduled to be repealed on January 1, 2020)
9    Sec. 5-20. Exemptions from broker, salesperson, or leasing
10agent license requirement. The requirement for holding a
11license under this Article 5 shall not apply to:
12        (1) Any person, partnership, or corporation that as
13    owner or lessor performs any of the acts described in the
14    definition of "broker" under Section 1-10 of this Act with
15    reference to property owned or leased by it, or to the
16    regular employees thereof with respect to the property so
17    owned or leased, where such acts are performed in the
18    regular course of or as an incident to the management,
19    sale, or other disposition of such property and the
20    investment therein, provided that such regular employees
21    do not perform any of the acts described in the definition
22    of "broker" under Section 1-10 of this Act in connection
23    with a vocation of selling or leasing any real estate or
24    the improvements thereon not so owned or leased.

 

 

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1        (2) An attorney in fact acting under a duly executed
2    and recorded power of attorney to convey real estate from
3    the owner or lessor or the services rendered by an attorney
4    at law in the performance of the attorney's duty as an
5    attorney at law.
6        (3) Any person acting as receiver, trustee in
7    bankruptcy, administrator, executor, or guardian or while
8    acting under a court order or under the authority of a will
9    or testamentary trust.
10        (4) Any person acting as a resident manager for the
11    owner or any employee acting as the resident manager for a
12    broker managing an apartment building, duplex, or
13    apartment complex, when the resident manager resides on the
14    premises, the premises is his or her primary residence, and
15    the resident manager is engaged in the leasing of the
16    property of which he or she is the resident manager.
17        (5) Any officer or employee of a federal agency in the
18    conduct of official duties.
19        (6) Any officer or employee of the State government or
20    any political subdivision thereof performing official
21    duties.
22        (7) Any multiple listing service or other similar
23    information exchange that is engaged in the collection and
24    dissemination of information concerning real estate
25    available for sale, purchase, lease, or exchange for the
26    purpose of providing licensees with a system by which

 

 

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1    licensees may cooperatively share information along with
2    which no other licensed activities, as defined in Section
3    1-10 of this Act, are provided.
4        (8) Railroads and other public utilities regulated by
5    the State of Illinois, or the officers or full time
6    employees thereof, unless the performance of any licensed
7    activities is in connection with the sale, purchase, lease,
8    or other disposition of real estate or investment therein
9    not needing the approval of the appropriate State
10    regulatory authority.
11        (9) Any medium of advertising in the routine course of
12    selling or publishing advertising along with which no other
13    licensed activities, as defined in Section 1-10 of this
14    Act, are provided.
15        (10) Any resident lessee of a residential dwelling unit
16    who refers for compensation to the owner of the dwelling
17    unit, or to the owner's agent, prospective lessees of
18    dwelling units in the same building or complex as the
19    resident lessee's unit, but only if the resident lessee (i)
20    refers no more than 3 prospective lessees in any 12-month
21    period, (ii) receives compensation of no more than $1,500
22    or the equivalent of one month's rent, whichever is less,
23    in any 12-month period, and (iii) limits his or her
24    activities to referring prospective lessees to the owner,
25    or the owner's agent, and does not show a residential
26    dwelling unit to a prospective lessee, discuss terms or

 

 

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1    conditions of leasing a dwelling unit with a prospective
2    lessee, or otherwise participate in the negotiation of the
3    leasing of a dwelling unit.
4        (11) An exchange company registered under the Real
5    Estate Timeshare Act of 1999 and the regular employees of
6    that registered exchange company but only when conducting
7    an exchange program as defined in that Act.
8        (12) An existing timeshare owner who, for
9    compensation, refers prospective purchasers, but only if
10    the existing timeshare owner (i) refers no more than 20
11    prospective purchasers in any calendar year, (ii) receives
12    no more than $1,000, or its equivalent, for referrals in
13    any calendar year and (iii) limits his or her activities to
14    referring prospective purchasers of timeshare interests to
15    the developer or the developer's employees or agents, and
16    does not show, discuss terms or conditions of purchase or
17    otherwise participate in negotiations with regard to
18    timeshare interests.
19        (13) Any person who is licensed without examination
20    under Section 10-25 (now repealed) of the Auction License
21    Act is exempt from holding a broker's or salesperson's
22    license under this Act for the limited purpose of selling
23    or leasing real estate at auction, so long as:
24            (A) that person has made application for said
25        exemption by July 1, 2000;
26            (B) that person verifies to the Department that he

 

 

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1        or she has sold real estate at auction for a period of
2        5 years prior to licensure as an auctioneer;
3            (C) the person has had no lapse in his or her
4        license as an auctioneer; and
5            (D) the license issued under the Auction License
6        Act has not been disciplined for violation of those
7        provisions of Article 20 of the Auction License Act
8        dealing with or related to the sale or lease of real
9        estate at auction.
10        (14) A person who holds a valid license under the
11    Auction License Act and a valid real estate auction
12    certification and conducts auctions for the sale of real
13    estate under Section 5-32 of this Act.
14        (15) (14) A hotel operator who is registered with the
15    Illinois Department of Revenue and pays taxes under the
16    Hotel Operators' Occupation Tax Act and rents a room or
17    rooms in a hotel as defined in the Hotel Operators'
18    Occupation Tax Act for a period of not more than 30
19    consecutive days and not more than 60 days in a calendar
20    year.
21(Source: P.A. 96-328, eff. 8-11-09; 96-856, eff. 12-31-09.)
 
22    (225 ILCS 454/5-32 new)
23    Sec. 5-32. Real estate auction certification.
24    (a) An auctioneer licensed under the Auction License Act
25who does not possess a valid and active broker's or managing

 

 

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1broker's license under this Act, or who is not otherwise exempt
2from licensure, may not engage in the practice of auctioning
3real estate, except as provided in this Section.
4    (b) The Department shall issue a real estate auction
5certification to applicants who:
6        (1) possess a valid auctioneer's license under the
7    Auction License Act;
8        (2) successfully complete a real estate auction course
9    of at least 30 hours approved by the Department, which
10    shall cover the scope of activities that may be engaged in
11    by a person holding a real estate auction certification and
12    the activities for which a person must hold a real estate
13    license, as well as other material as provided by the
14    Advisory Council;
15        (3) provide documentation of the completion of the real
16    estate auction course; and
17        (4) successfully complete any other reasonable
18    requirements as provided by rule.
19    (c) The auctioneer's role shall be limited to establishing
20the time, place, and method of the real estate auction, placing
21advertisements regarding the auction, and crying or calling the
22auction; any other real estate brokerage activities must be
23performed by a person holding a valid and active real estate
24broker's or managing broker's license under the provisions of
25this Act or by a person who is exempt from holding a license
26under paragraph (13) of Section 5-20 or who has a certificate

 

 

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1under this Section.
2    (d) An auctioneer who conducts any real estate auction
3activities in violation of this Section is guilty of unlicensed
4practice under Section 20-10 of this Act.
5    (e) The Department may revoke, suspend, or otherwise
6discipline the real estate auction certification of an
7auctioneer who is adjudicated to be in violation of the
8provisions of this Section or Section 20-15 of the Auction
9License Act.
10    (f) Advertising for the real estate auction must contain
11the name and address of the licensed real estate broker,
12managing broker, or a licensed auctioneer under paragraph (13)
13of Section 5-20 of this Act who is providing brokerage services
14for the transaction.
15    (g) The requirement to hold a real estate auction
16certification shall not apply to a person exempt from this Act
17under the provisions of paragraph (13) of subsection 5-20 of
18this Act, unless that person is performing licensed activities
19in a transaction in which a licensed auctioneer with a real
20estate certification is providing the limited services
21provided for in subsection (c) of this Section.
22    (h) Nothing in this Section shall require a person licensed
23under this Act as a real estate broker or managing broker to
24obtain a real estate auction certification in order to auction
25real estate.
26    (i) The Department may adopt rules to implement this

 

 

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1Section.
 
2    (225 ILCS 454/10-5)
3    (Section scheduled to be repealed on January 1, 2020)
4    Sec. 10-5. Payment of compensation.
5    (a) No licensee shall pay compensation directly to a
6licensee sponsored by another broker for the performance of
7licensed activities. No licensee sponsored by a broker may pay
8compensation to any licensee other than his or her sponsoring
9broker for the performance of licensed activities unless the
10licensee paying the compensation is a principal to the
11transaction. However, a non-sponsoring broker may pay
12compensation directly to a licensee sponsored by another or a
13person who is not sponsored by a broker if the payments are
14made pursuant to terms of an employment agreement that was
15previously in place between a licensee and the non-sponsoring
16broker, and the payments are for licensed activity performed by
17that person while previously sponsored by the now
18non-sponsoring broker.
19    (b) No licensee sponsored by a broker shall accept
20compensation for the performance of activities under this Act
21except from the broker by whom the licensee is sponsored,
22except as provided in this Section.
23    (c) Any person that is a licensed personal assistant for
24another licensee may only be compensated in his or her capacity
25as a personal assistant by the sponsoring broker for that

 

 

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1licensed personal assistant.
2    (d) One sponsoring broker may pay compensation directly to
3another sponsoring broker for the performance of licensed
4activities.
5    (e) Notwithstanding any other provision of this Act, a
6sponsoring broker may pay compensation to a person currently
7licensed under the Auction License Act who is in compliance
8with and providing services under Section 5-32 of this Act.
9(Source: P.A. 91-245, eff. 12-31-99.)
 
10    (225 ILCS 454/20-20)
11    (Section scheduled to be repealed on January 1, 2020)
12    Sec. 20-20. Grounds for discipline.
13    (a) The Department may refuse to issue or renew a license,
14may place on probation, suspend, or revoke any license,
15reprimand, or take any other disciplinary or non-disciplinary
16action as the Department may deem proper and impose a fine not
17to exceed $25,000 upon any licensee or applicant under this Act
18or any person who holds himself or herself out as an applicant
19or licensee or against a licensee in handling his or her own
20property, whether held by deed, option, or otherwise, for any
21one or any combination of the following causes:
22        (1) Fraud or misrepresentation in applying for, or
23    procuring, a license under this Act or in connection with
24    applying for renewal of a license under this Act.
25        (2) The conviction of or plea of guilty or plea of nolo

 

 

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1    contendere to a felony or misdemeanor in this State or any
2    other jurisdiction; or the entry of an administrative
3    sanction by a government agency in this State or any other
4    jurisdiction. Action taken under this paragraph (2) for a
5    misdemeanor or an administrative sanction is limited to a
6    misdemeanor or administrative sanction that has as an
7    essential element dishonesty or fraud or involves larceny,
8    embezzlement, or obtaining money, property, or credit by
9    false pretenses or by means of a confidence game.
10        (3) Inability to practice the profession with
11    reasonable judgment, skill, or safety as a result of a
12    physical illness, including, but not limited to,
13    deterioration through the aging process or loss of motor
14    skill, or a mental illness or disability.
15        (4) Practice under this Act as a licensee in a retail
16    sales establishment from an office, desk, or space that is
17    not separated from the main retail business by a separate
18    and distinct area within the establishment.
19        (5) Having been disciplined by another state, the
20    District of Columbia, a territory, a foreign nation, or a
21    governmental agency authorized to impose discipline if at
22    least one of the grounds for that discipline is the same as
23    or the equivalent of one of the grounds for which a
24    licensee may be disciplined under this Act. A certified
25    copy of the record of the action by the other state or
26    jurisdiction shall be prima facie evidence thereof.

 

 

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

 

 

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

 

 

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1        in the absence of notice of the filing of any claim in
2        a court of competent jurisdiction; and (iii) if 6
3        months have elapsed after the receipt of a written
4        demand for the escrow moneys from one of the principals
5        to the transaction or the principal's duly authorized
6        agent.
7    The account shall be noninterest bearing, unless the
8    character of the deposit is such that payment of interest
9    thereon is otherwise required by law or unless the
10    principals to the transaction specifically require, in
11    writing, that the deposit be placed in an interest bearing
12    account.
13        (18) Failure to make available to the Department all
14    escrow records and related documents maintained in
15    connection with the practice of real estate within 24 hours
16    of a request for those documents by Department personnel.
17        (19) Failing to furnish copies upon request of
18    documents relating to a real estate transaction to a party
19    who has executed that document.
20        (20) Failure of a sponsoring broker to timely provide
21    information, sponsor cards, or termination of licenses to
22    the Department.
23        (21) Engaging in dishonorable, unethical, or
24    unprofessional conduct of a character likely to deceive,
25    defraud, or harm the public.
26        (22) Commingling the money or property of others with

 

 

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1    his or her own money or property.
2        (23) Employing any person on a purely temporary or
3    single deal basis as a means of evading the law regarding
4    payment of commission to nonlicensees on some contemplated
5    transactions.
6        (24) Permitting the use of his or her license as a
7    broker to enable a salesperson or unlicensed person to
8    operate a real estate business without actual
9    participation therein and control thereof by the broker.
10        (25) Any other conduct, whether of the same or a
11    different character from that specified in this Section,
12    that constitutes dishonest dealing.
13        (26) Displaying a "for rent" or "for sale" sign on any
14    property without the written consent of an owner or his or
15    her duly authorized agent or advertising by any means that
16    any property is for sale or for rent without the written
17    consent of the owner or his or her authorized agent.
18        (27) Failing to provide information requested by the
19    Department, or otherwise respond to that request, within 30
20    days of the request.
21        (28) Advertising by means of a blind advertisement,
22    except as otherwise permitted in Section 10-30 of this Act.
23        (29) Offering guaranteed sales plans, as defined in
24    clause (A) of this subdivision (29), except to the extent
25    hereinafter set forth:
26            (A) A "guaranteed sales plan" is any real estate

 

 

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1        purchase or sales plan whereby a licensee enters into a
2        conditional or unconditional written contract with a
3        seller, prior to entering into a brokerage agreement
4        with the seller, by the terms of which a licensee
5        agrees to purchase a property of the seller within a
6        specified period of time at a specific price in the
7        event the property is not sold in accordance with the
8        terms of a brokerage agreement to be entered into
9        between the sponsoring broker and the seller.
10            (B) A licensee offering a guaranteed sales plan
11        shall provide the details and conditions of the plan in
12        writing to the party to whom the plan is offered.
13            (C) A licensee offering a guaranteed sales plan
14        shall provide to the party to whom the plan is offered
15        evidence of sufficient financial resources to satisfy
16        the commitment to purchase undertaken by the broker in
17        the plan.
18            (D) Any licensee offering a guaranteed sales plan
19        shall undertake to market the property of the seller
20        subject to the plan in the same manner in which the
21        broker would market any other property, unless the
22        agreement with the seller provides otherwise.
23            (E) The licensee cannot purchase seller's property
24        until the brokerage agreement has ended according to
25        its terms or is otherwise terminated.
26            (F) Any licensee who fails to perform on a

 

 

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

 

 

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

 

 

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1    violation of Article 10 of this Act.
2        (39) Requiring a party to a transaction who is not a
3    client of the licensee to allow the licensee to retain a
4    portion of the escrow moneys for payment of the licensee's
5    commission or expenses as a condition for release of the
6    escrow moneys to that party.
7        (40) Disregarding or violating any provision of this
8    Act or the published rules promulgated by the Department to
9    enforce this Act or aiding or abetting any individual,
10    partnership, registered limited liability partnership,
11    limited liability company, or corporation in disregarding
12    any provision of this Act or the published rules
13    promulgated by the Department to enforce this Act.
14        (41) Failing to provide the minimum services required
15    by Section 15-75 of this Act when acting under an exclusive
16    brokerage agreement.
17        (42) Habitual or excessive use or addiction to alcohol,
18    narcotics, stimulants, or any other chemical agent or drug
19    that results in a managing broker, broker, salesperson, or
20    leasing agent's inability to practice with reasonable
21    skill or safety.
22        (43) Enabling, aiding, or abetting an auctioneer, as
23    defined in the Auction License Act, to conduct a real
24    estate auction in a manner that is in violation of this
25    Act.
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. 96-856, eff. 12-31-09; 97-813, eff. 7-13-12;
2697-1002, eff. 8-17-12.)
 

 

 

09800SB0092ham001- 33 -LRB098 06113 MGM 46341 a

1    (225 ILCS 454/20-23 new)
2    Sec. 20-23. 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, applicant, or any person who
6holds himself or herself out as a licensee or applicant that is
7filed with the Department and information collected to
8investigate any such complaint, shall be maintained for the
9confidential use of the Department and shall not be disclosed.
10The Department may not disclose the information to anyone other
11than law enforcement officials, regulatory agencies that have
12an appropriate regulatory interest as determined by the
13Secretary, or a party presenting a lawful subpoena to the
14Department. Information and documents disclosed to a federal,
15State, county, or local law enforcement agency shall not be
16disclosed by the agency for any purpose to any other agency or
17person. A formal complaint filed against a licensee by the
18Department or any order issued by the Department against a
19licensee or applicant shall be a public record, except as
20otherwise prohibited by law.
 
21    Section 99. Effective date. This Act takes effect January
221, 2014.".