SECTIONS 10175-10185 - California Statutes

BUSINESS AND PROFESSIONS CODE

SECTION 10175-10185

10175. Upon grounds provided in this article and the other articles
of this chapter, the license of any real estate licensee may be
revoked or suspended in accordance with the provisions of this part
relating to hearings.

10175.2. (a) If the Real Estate Commissioner determines that the
public interest and public welfare will be adequately served by
permitting a real estate licensee to pay a monetary penalty to the
department in lieu of an actual license suspension, the commissioner
may, on the petition of the licensee, stay the execution of all or
some part of the suspension on the condition that the licensee pay a
monetary penalty and the further condition that the licensee incur no
other cause for disciplinary action within a period of time
specified by the commissioner.
(b) The commissioner may exercise the discretion granted under
subdivision (a) either with respect to a suspension ordered by a
decision after a contested hearing on an accusation against the
licensee or by stipulation with the licensee after the filing of an
accusation, but prior to the rendering of a decision based upon the
accusation. In either case, the terms and conditions of the
disciplinary action against the licensee shall be made part of a
formal decision of the commissioner.
(c) If a licensee fails to pay the monetary penalty in accordance
with the terms and conditions of the decision of the commissioner,
the commissioner may, without a hearing, order the immediate
execution of all or any part of the stayed suspension in which event
the licensee shall not be entitled to any repayment nor credit,
prorated or otherwise, for money paid to the department under the
terms of the decision.
(d) The amount of the monetary penalty payable under this section
shall not exceed two hundred fifty dollars ($250) for each day of
suspension stayed nor a total of ten thousand dollars ($10,000) per
decision regardless of the number of days of suspension stayed under
the decision.
(e) Any monetary penalty received by the department pursuant to
this section shall be credited to the Recovery Account of the Real
Estate Fund.

10176. The commissioner may, upon his or her own motion, and shall,
upon the verified complaint in writing of any person, investigate
the actions of any person engaged in the business or acting in the
capacity of a real estate licensee within this state, and he or she
may temporarily suspend or permanently revoke a real estate license
at any time where the licensee, while a real estate licensee, in
performing or attempting to perform any of the acts within the scope
of this chapter has been guilty of any of the following:
(a) Making any substantial misrepresentation.
(b) Making any false promises of a character likely to influence,
persuade or induce.
(c) A continued and flagrant course of misrepresentation or making
of false promises through real estate agents or salespersons.
(d) Acting for more than one party in a transaction without the
knowledge or consent of all parties thereto.
(e) Commingling with his or her own money or property the money or
other property of others which is received and held by him or her.
(f) Claiming, demanding, or receiving a fee, compensation or
commission under any exclusive agreement authorizing or employing a
licensee to perform any acts set forth in Section 10131 for
compensation or commission where the agreement does not contain a
definite, specified date of final and complete termination.
(g) The claiming or taking by a licensee of any secret or
undisclosed amount of compensation, commission or profit or the
failure of a licensee to reveal to the employer of the licensee the
full amount of the licensee's compensation, commission or profit
under any agreement authorizing or employing the licensee to do any
acts for which a license is required under this chapter for
compensation or commission prior to or coincident with the signing of
an agreement evidencing the meeting of the minds of the contracting
parties, regardless of the form of the agreement, whether evidenced
by documents in an escrow or by any other or different procedure.
(h) The use by a licensee of any provision allowing the licensee
an option to purchase in an agreement authorizing or employing the
licensee to sell, buy, or exchange real estate or a business
opportunity for compensation or commission, except when the licensee
prior to or coincident with election to exercise the option to
purchase reveals in writing to the employer the full amount of
licensee's profit and obtains the written consent of the employer
approving the amount of the profit.
(i) Any other conduct, whether of the same or a different
character than specified in this section, which constitutes fraud or
dishonest dealing.
(j) Obtaining the signature of a prospective purchaser to an
agreement which provides that the prospective purchaser shall either
transact the purchasing, leasing, renting or exchanging of a business
opportunity property through the broker obtaining the signature, or
pay a compensation to the broker if the property is purchased,
leased, rented or exchanged without the broker first having obtained
the written authorization of the owner of the property concerned to
offer the property for sale, lease, exchange or rent.
(k) Failing to disburse funds in accordance with a commitment to
make a mortgage loan that is accepted by the applicant when the real
estate broker represents to the applicant that the broker is either
of the following:
(1) The lender.
(2) Authorized to issue the commitment on behalf of the lender or
lenders in the mortgage loan transaction.
(l) Intentionally delaying the closing of a mortgage loan for the
sole purpose of increasing interest, costs, fees, or charges payable
by the borrower.
(m) Generating an inaccurate opinion of the value of residential
real property, requested in connection with a debt forgiveness sale,
in order to do either or both of the following:
(1) Manipulate the lienholder to reject the proposed debt
forgiveness sale.
(2) Acquire a financial or business advantage, including a listing
agreement, that directly results from the inaccurate opinion of
value, with regard to the subject property.

10176.1. (a) (1) Whenever the commissioner takes any enforcement or
disciplinary action against a licensee, and the enforcement or
disciplinary action is related to escrow services provided pursuant
to paragraph (4) of subdivision (a) of Section 17006 of the Financial
Code, upon the action becoming final the commissioner shall notify
the Insurance Commissioner and the Commissioner of Corporations of
the action or actions taken. The purpose of this notification is to
alert the departments that enforcement or disciplinary action has
been taken, if the licensee seeks or obtains employment with entities
regulated by the departments.
(2) The commissioner shall provide the Insurance Commissioner and
the Commissioner of Corporations, in addition to the notification of
the action taken, with a copy of the written accusation, statement of
issues, or order issued or filed in the matter and, at the request
of the Insurance Commissioner or the Commissioner of Corporations,
with any underlying factual material relevant to the enforcement or
disciplinary action. Any confidential information provided by the
commissioner to the Insurance Commissioner or the Commissioner of
Corporations shall not be made public pursuant to this section.
Notwithstanding any other provision of law, the disclosure of any
underlying factual material to the Insurance Commissioner or the
Commissioner of Corporations shall not operate as a waiver of
confidentiality or any privilege that the commissioner may assert.
(b) The commissioner shall establish and maintain, on the Web site
maintained by the Department of Real Estate, a database of its
licensees, including those who have been subject to any enforcement
or disciplinary action that triggers the notification requirements of
this section. The database shall also contain a direct link to the
databases, described in Section 17423.1 of the Financial Code and
Section 12414.31 of the Insurance Code and required to be maintained
on the Web sites of the Department of Corporations and the Department
of Insurance, respectively, of persons who have been subject to
enforcement or disciplinary action for malfeasance or misconduct
related to the escrow industry by the Insurance Commissioner and the
Commissioner of Corporations.
(c) There shall be no liability on the part of, and no cause of
action of any nature shall arise against, the State of California,
the Department of Real Estate, the Real Estate Commissioner, any
other state agency, or any officer, agent, employee, consultant, or
contractor of the state, for the release of any false or unauthorized
information pursuant to this section, unless the release of that
information was done with knowledge and malice, or for the failure to
release any information pursuant to this section.

10176.5. (a) The commissioner may, upon his or her own motion, and
shall upon receiving a verified complaint in writing from any person,
investigate an alleged violation of Article 1.5 (commencing with
Section 1102) of Chapter 2 of Title 4 of Part 4 of Division 2 of the
Civil Code by any real estate licensee within this state. The
commissioner may suspend or revoke a licensee's license if the
licensee acting under the license has willfully or repeatedly
violated any of the provisions of Article 1.5 (commencing with
Section 1102) of Chapter 2 of Title 4 of Part 4 of Division 2 of the
Civil Code.
(b) Notwithstanding any other provision of Article 1.5 (commencing
with Section 1102) of Chapter 2 of Title 4 of Part 4 of Division 2
of the Civil Code, and in lieu of any other civil remedy, subdivision
(a) of this section is the only remedy available for violations of
Section 1102.6b of the Civil Code by any real estate licensee within
this state.

10177. The commissioner may suspend or revoke the license of a real
estate licensee, or may deny the issuance of a license to an
applicant, who has done any of the following, or may suspend or
revoke the license of a corporation, or deny the issuance of a
license to a corporation, if an officer, director, or person owning
or controlling 10 percent or more of the corporation's stock has done
any of the following:
(a) Procured, or attempted to procure, a real estate license or
license renewal, for himself or herself or a salesperson, by fraud,
misrepresentation, or deceit, or by making a material misstatement of
fact in an application for a real estate license, license renewal,
or reinstatement.
(b) Entered a plea of guilty or nolo contendere to, or been found
guilty of, or been convicted of, a felony, or a crime substantially
related to the qualifications, functions, or duties of a real estate
licensee, and the time for appeal has elapsed or the judgment of
conviction has been affirmed on appeal, irrespective of an order
granting probation following that conviction, suspending the
imposition of sentence, or of a subsequent order under Section 1203.4
of the Penal Code allowing that licensee to withdraw his or her plea
of guilty and to enter a plea of not guilty, or dismissing the
accusation or information.
(c) Knowingly authorized, directed, connived at, or aided in the
publication, advertisement, distribution, or circulation of a
material false statement or representation concerning his or her
designation or certification of special education, credential, trade
organization membership, or business, or concerning a business
opportunity or a land or subdivision, as defined in Chapter 1
(commencing with Section 11000) of Part 2, offered for sale.
(d) Willfully disregarded or violated the Real Estate Law (Part 1
(commencing with Section 10000)) or Chapter 1 (commencing with
Section 11000) of Part 2 or the rules and regulations of the
commissioner for the administration and enforcement of the Real
Estate Law and Chapter 1 (commencing with Section 11000) of Part 2.
(e) Willfully used the term "realtor" or a trade name or insignia
of membership in a real estate organization of which the licensee is
not a member.
(f) Acted or conducted himself or herself in a manner that would
have warranted the denial of his or her application for a real estate
license, or has either had a license denied or had a license issued
by another agency of this state, another state, or the federal
government revoked or suspended for acts that, if done by a real
estate licensee, would be grounds for the suspension or revocation of
a California real estate license, if the action of denial,
revocation, or suspension by the other agency or entity was taken
only after giving the licensee or applicant fair notice of the
charges, an opportunity for a hearing, and other due process
protections comparable to the Administrative Procedure Act (Chapter
3.5 (commencing with Section 11340), Chapter 4 (commencing with
Section 11370), and Chapter 5 (commencing with Section 11500) of Part
1 of Division 3 of Title 2 of the Government Code), and only upon an
express finding of a violation of law by the agency or entity.
(g) Demonstrated negligence or incompetence in performing an act
for which he or she is required to hold a license.
(h) As a broker licensee, failed to exercise reasonable
supervision over the activities of his or her salespersons, or, as
the officer designated by a corporate broker licensee, failed to
exercise reasonable supervision and control of the activities of the
corporation for which a real estate license is required.
(i) Has used his or her employment by a governmental agency in a
capacity giving access to records, other than public records, in a
manner that violates the confidential nature of the records.
(j) Engaged in any other conduct, whether of the same or a
different character than specified in this section, which constitutes
fraud or dishonest dealing.
(k) Violated any of the terms, conditions, restrictions, and
limitations contained in an order granting a restricted license.
(l) (1) Solicited or induced the sale, lease, or listing for sale
or lease of residential property on the ground, wholly or in part, of
loss of value, increase in crime, or decline of the quality of the
schools due to the present or prospective entry into the neighborhood
of a person or persons having a characteristic listed in subdivision
(a) or (d) of Section 12955 of the Government Code, as those
characteristics are defined in Sections 12926 and 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code.
(2) Notwithstanding paragraph (1), with respect to familial
status, paragraph (1) shall not be construed to apply to housing for
older persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in paragraph (1) shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and
799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government
Code shall apply to paragraph (1).
(m) Violated the Franchise Investment Law (Division 5 (commencing
with Section 31000) of Title 4 of the Corporations Code) or
regulations of the Commissioner of Corporations pertaining thereto.
(n) Violated the Corporate Securities Law of 1968 (Division 1
(commencing with Section 25000) of Title 4 of the Corporations Code)
or the regulations of the Commissioner of Corporations pertaining
thereto.
(o) Failed to disclose to the buyer of real property, in a
transaction in which the licensee is an agent for the buyer, the
nature and extent of a licensee's direct or indirect ownership
interest in that real property. The direct or indirect ownership
interest in the property by a person related to the licensee by blood
or marriage, by an entity in which the licensee has an ownership
interest, or by any other person with whom the licensee has a special
relationship shall be disclosed to the buyer.
(p) Violated Article 6 (commencing with Section 10237).
(q) Violated or failed to comply with Chapter 2 (commencing with
Section 2920) of Title 14 of Part 4 of Division 3 of the Civil Code,
related to mortgages.
If a real estate broker that is a corporation has not done any of
the foregoing acts, either directly or through its employees, agents,
officers, directors, or persons owning or controlling 10 percent or
more of the corporation's stock, the commissioner may not deny the
issuance of a real estate license to, or suspend or revoke the real
estate license of, the corporation, provided that any offending
officer, director, or stockholder, who has done any of the foregoing
acts individually and not on behalf of the corporation, has been
completely disassociated from any affiliation or ownership in the
corporation.

10177.1. The commissioner may, without a hearing, suspend the
license of any person who procured the issuance of the license to
himself by fraud, misrepresentation, deceit, or by the making of any
material misstatement of fact in his application for such license.
The power of the commissioner under this section to order a
suspension of a license shall expire 90 days after the date of
issuance of said license and the suspension itself shall remain in
effect only until the effective date of a decision of the
commissioner after a hearing conducted pursuant to Section 10100 and
the provisions of this section.
A statement of issues as defined in Section 11504 of the
Government Code shall be filed and served upon the respondent with
the order of suspension. Service by certified or registered mail
directed to the respondent's current address of record on file with
the commissioner shall be effective service.
The respondent shall have 30 days after service of the order of
suspension and statement of issues in which to file with the
commissioner a written request for hearing on the statement of issues
filed against him. The commissioner shall hold a hearing within 30
days after receipt of the request therefor unless the respondent
shall request or agree to a continuance thereof. If a hearing is not
commenced within 30 days after receipt of the request for hearing or
on the date to which continued with the agreement of respondent, or
if the decision of the commissioner is not rendered within 30 days
after completion of the hearing, the order of suspension shall be
vacated and set aside.
A hearing conducted under this section shall in all respects,
except as otherwise expressly provided herein, conform to the
substantive and procedural provisions of Chapter 5 (commencing with
Section 11500) of Part 1 of Division 3 of Title 2 of the Government
Code applicable to a hearing on a statement of issues.

10177.2. The commissioner may, upon his or her own motion, and
shall, upon the verified complaint in writing of any person,
investigate the actions of any licensee, and he or she may suspend or
revoke a real estate license at any time where the licensee in
performing or attempting to perform any of the acts within the scope
of Section 10131.6 has been guilty of any of the following acts:
(a) Has used a false or fictitious name, knowingly made any false
statement, or knowingly concealed any material fact, in any
application for the registration of a mobilehome, or otherwise
committed a fraud in that application.
(b) Failed to provide for the delivery of a properly endorsed
certificate of ownership or certificate of title of a mobilehome from
the seller to the buyer thereof.
(c) Has knowingly participated in the purchase, sale, or other
acquisition or disposal of a stolen mobilehome.
(d) Has submitted a check, draft, or money order to the Department
of Housing and Community Development for any obligation or fee due
the state and it is thereafter dishonored or refused payment upon
presentation.

10177.4. (a) Notwithstanding any other provision of law, the
commissioner may, after hearing in accordance with this part relating
to hearings, suspend or revoke the license of a real estate licensee
who claims, demands, or receives a commission, fee, or other
consideration, as compensation or inducement, for referral of
customers to any escrow agent, structural pest control firm, home
protection company, title insurer, controlled escrow company, or
underwritten title company. A licensee may not be disciplined under
any provision of this part for reporting to the commissioner
violations of this section by another licensee, unless the licensee
making the report had guilty knowledge of, or committed or
participated in, the violation of this section.
(b) The term "other consideration" as used in this section does
not include any of the following:
(1) Bona fide payments for goods or facilities actually furnished
by a licensee or for services actually performed by a licensee,
provided these payments are reasonably related to the value of the
goods, facilities, or services furnished.
(2) Furnishing of documents, services, information, advertising,
educational materials, or items of a like nature that are customary
in the real estate business and that relate to the product or
services of the furnisher and that are available on a similar and
essentially equal basis to all customers or the agents of the
customers of the furnisher.
(3) Moderate expenses for food, meals, beverages, and similar
items furnished to individual licensees or groups or associations of
licensees within a context of customary business, educational, or
promotional practices pertaining to the business of the furnisher.
(4) Items of a character and magnitude similar to those in
paragraphs (2) and (3) that are promotional of the furnisher's
business customary in the real estate business, and available on a
similar and essentially equal basis to all customers, or the agents
of the customers, of the furnisher.
(c) Nothing in this section shall relieve any licensee of the
obligation of disclosure otherwise required by this part.

10177.5. When a final judgment is obtained in a civil action
against any real estate licensee upon grounds of fraud,
misrepresentation, or deceit with reference to any transaction for
which a license is required under this division, the commissioner
may, after hearing in accordance with the provisions of this part
relating to hearings, suspend or revoke the license of such real
estate licensee.

10177.6. When an agent undertakes to arrange financing in
connection with a sale, lease, or exchange of real property, or when
a person or entity arranging financing in connection with the sale,
lease, or exchange of real property undertakes to act as an agent
with respect to that property, that agent, person, or entity shall,
within 24 hours, make a written disclosure of those roles to all
parties to the sale, lease, or exchange, and any related loan
transaction. For purposes of this section, "agent" has the same
meaning as defined in subdivision (a) of Section 2079.13 of the Civil
Code.

10178. When any real estate salesman is discharged by his employer
for a violation of any of the provisions of this article prescribing
a ground for disciplinary action, a certified written statement of
the facts with reference thereto shall be filed forthwith with the
commissioner by the employer and if the employer fails to notify the
commissioner as required by this section, the commissioner may
temporarily suspend or permanently revoke the real estate license of
the employer, in accordance with the provisions of this part relating
to hearings.

10179. No violation of any of the provisions of this part relating
to real estate or of Chapter 1 of Part 2 by any real estate salesman
or employee of any licensed real estate broker shall cause the
revocation or suspension of the license of the employer of the
salesman or employee unless it appears upon a hearing by the
commissioner that the employer had guilty knowledge of such
violation.

10180. The commissioner may deny, suspend or revoke the real estate
license of a corporation as to any officer or agent acting under its
license without revoking the license of the corporation.

10182. As a condition to the reinstatement of a revoked or
suspended license, the commissioner may require the applicant to take
and pass a qualifying examination.

10185. Any person, including officers, directors, agents or
employees of corporations, who willfully violates or knowingly
participates in the violation of this division shall be guilty of a
misdemeanor punishable by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment in the county jail not exceeding six
months, or by a fine and imprisonment.