Current through March 20, 2024
008.01 Application of Rules
The rules in this section are applicable to filings and investigations of
Complaints and Orders to Show Cause, and hearings on Complaints, Orders to Show Cause, and any other
contested cases by or against licensees or any other individuals who are subject to the jurisdiction of the
State Real Estate Commission pursuant to the Real Estate License Act or any lawful rules, regulations, or
orders of the Commission thereunder.
008.02 Additional
Definitions
In addition to the definitions used in Section 001.02, the definitions
used in Nebraska Real Estate License Act are incorporated by this reference. The following definitions also
shall apply to terms used in this section:
008.02A Answer shall mean
a written statement filed by a Respondent in the form required by the Commission, answering the allegations
of a Complaint.
008.02B Complainant shall mean the State of
Nebraska, filing a Complaint on the relation of any person, including the Director, and the
Commission.
008.02C Complaint shall mean a written statement
filed by any person, by the Director, or by the Commission alleging that any individual subject to Commission
jurisdiction has violated one or more provisions of the Real Estate License Act, or the rules and regulations
or any lawful order of the Commission entered thereunder.
008.02D
Licensee shall mean a real estate broker or real estate salesperson licensed by the Commission pursuant to
the Real Estate License Act.
008.02E Party or parties shall
include only the Complainant, the Respondent, and any intervenor. A person filing a Complaint is not a party
to a complaint proceeding.
008.02F Respondent shall mean an
individual against whom a Complaint has been filed.
008.02G
Violation shall mean a violation of any portion of the Real Estate License Act, or any lawful rules,
regulations, or orders of the Commission thereunder.
008.03 Filing and Serving Complaints and Answers
008.03A Any person shall have the right to file a Complaint against a
licensee or any other person subject to the Real Estate License Act, alleging a violation of that Act. The
Complaint shall be sworn to by the person making it, and shall be filed in triplicate, by mail or in person,
at the normal business address of the Agency. The Director shall cause the Complaint to be
investigated.
008.03B The Director may file a Complaint on behalf
of the Commission in the following circumstances:
1) when an examiner's
report discloses facts which indicate that a licensee may have violated the Real Estate License Act;
2) when it appears in his or her opinion, after investigation,
that a Complaint filed under Section
008.03A does not adequately set forth the facts
or issues involved, the Director may amend the complaint or supersede it by filing a new complaint;
and
3) under such other circumstances as the Commission may
direct. The Complaint need not be sworn to.
008.03C The
Commission may file a Complaint on its own motion. The Complaint need not be sworn to.
008.03D Any Complaint shall be in writing, shall set forth in clear and
concise language the alleged violation, and shall include the section or sections of the Real Estate License
Act, rule, regulation or order violated.
008.03E Any complaint
shall be made on behalf of the State of Nebraska, ex rel. the name of the person filing the Complaint, the
Director, or the Commission, respectively. The individual against whom the Complaint is being filed shall be
designated as the Respondent in the Complaint. The form of the Complaint shall be as follows:
BEFORE THE STATE REAL ESTATE COMMISSION OF THE STATE OF
NEBRASKA
STATE OF NEBRASKA, ex rel.
)
Jane Doe,
)
Complainant,
) Case No.
)
VS.
) Complaint
)
Richard Rowe,
)
Respondent.
)
Approved forms and information concerning procedures for filing a
Complaint may be obtained from the Director at the normal business address of the Agency.
008.03F The Director shall serve a copy of the Complaint on the Respondent
unless, upon the request of the Director or upon its own motion, the Commission dismisses the Complaint
because in the Commission's opinion the Complaint does not involve a violation of the Real Estate License
Act.
008.03G Within twenty days following the service of the
Complaint, the Respondent may file an Answer. The Answer shall be captioned in the manner designated in
section
008.03E, except that it shall be denominated
"Answer"; shall contain a concise response to each and every material allegation of the Complaint; shall
contain a concise statement of all defenses upon which the Respondent intends to rely; and shall be sworn to
by the Respondent. The Answer shall be filed with the Agency at its normal business address.
008.03H If the Respondent fails to timely file an Answer conforming to the
requirements of section
008.03G, the Commission may accept the
allegations of the Complaint as true and may, after notice and hearing, enter an order consistent with the
allegations of the Complaint.
008.03I Substantive or dispositive
pleadings other than the Complaint and Answer shall not be allowed, other than amendments
thereto.
008.04 Notice of Hearing
008.04A The Commission shall set a Complaint for hearing when, in the
Commission's opinion, the pleadings and investigation reveal a sufficient probability that the alleged
conduct of the Respondent may be such as to justify disciplinary action against him or her. The Commission
may decide to set the Complaint for hearing either before or after an Answer is filed. If the Commission
decides not to set a Complaint for hearing, it may dismiss the Complaint or direct the Agency to conduct a
further investigation.
008.04B A contested case under Section 008
commences when the Commission sets the Complaint for hearing. The rules regarding ex parte communications
shall apply beginning at the time the Complaint is set for hearing.
008.04C In the event the Commission sets a Complaint for hearing, notice of
the hearing shall be sent to the Respondent by certified mail not later than twenty days prior to the date
set for hearing.
008.05 Consent Orders
The following shall apply to Consent Orders:
008.05A The parties may enter into a written stipulation setting forth the
terms and conditions of a Consent Order to be entered against the Respondent in a contested case. Such order
shall contain findings of fact, conclusions of law, and the decision of the Commission, including sanctions
to be imposed, if any, shall be signed by the Respondent, and shall be approved by the respective legal
counsel of the parties, if any, as to form.
008.05B A proposed
Consent Order shall not be binding unless or until it is signed by the Chairperson following approval by the
Commission in an open meeting. The Commission shall have full discretion to reject any Consent Order, or to
provide notice to the parties of other terms and conditions which it will approve, which terms and conditions
shall be consistent with the facts of the case and the applicable law. Neither representations nor offers of
settlement made by a party in the course of negotiations for a proposed Consent Order, nor the refusal of a
party to enter into a proposed Consent Order, shall be used against him or her at hearing or to increase
sanctions in the event a violation is found after hearing.
008.05C A Consent Order duly approved by the Commission and entered of
record shall be served upon the parties and shall be effective in the same manner as an order entered after
hearing.
008.06 Presentation of Evidence
Evidence in a Complaint proceeding will be presented in the following
order:
008.06A Evidence is presented by the Complainant.
008.06B Evidence is presented by the Respondent.
008.06C Rebuttal evidence is presented by the Complainant.
008.06D Surrebuttal evidence is presented by the
Respondent.
008.07 Orders to Show Cause
The following shall apply to Orders to Show Cause:
008.07A Upon application by the Director, supported by affidavit, the
Chairperson may, in his or her discretion, issue an order requiring a licensee or any other person subject to
the jurisdiction of the Commission under the Act to appear before the Commission and show cause why he or she
should not be subject to sanctions for failing or refusing to abide by any specified conditions in an order
of the Commission. Such person shall be given not less than five (5) days' notice by certified mail of the
date upon which he or she is to appear before the Commission to respond to the Show Cause Order. Willful
failure to accept service of the notice or to appear before the Commission and show cause on the date
specified shall be grounds for imposing sanctions against for violation of Section
81-885.24(26)
and (29) of the Act, as amended, as well as for violation of the conditions
set by the Commission in its original order.
008.07B After a
hearing on the Order to Show Cause, the Commission shall prepare and file a written decision to include
findings of fact, conclusions of law, and its ruling on the Order to Show Cause, and specify the sanctions,
if any, against the person charged with violation of specified conditions in a Commission order.