Section 305-4-008 - Contested Cases Involving Licensure of Individuals008.01 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; and3) 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.305 Neb. Admin. Code, ch. 4, § 008