Section 305-4-009 - Contested Cases Involving Registration009.01 Application The rules in this section are applicable to contested cases involving filings, applications, registrations, certifications, public offering statements and related matters under the jurisdiction of the Commission with regard to the Retirement Communities and Subdivisions Act, the Time-Share Act, the Membership Campground Act, or the Subdivision Certification Law, or section 81-885.18 of the Real Estate License Act.
009.02 Definitions The following definitions shall apply to this section, in addition to the statutory definitions of applicable laws and the definitions contained in section 001.02.
009.02A Decision of the Director shall mean any written decision by the Director pursuant to law or authorization by the Commission affecting the legal rights, duties or privileges of specific persons, including registration of an individual as a salesperson pursuant to Section 76-2115 of the Membership Campground Act, as amended, or rejection of a license application pursuant to Section 81-885.18 of the Real Estate License Act. Such written decisions shall include but are not necessarily limited to decisions which 1) reject, deny, suspend, or order modification of a public offering statement, certification, application or registration, or any amendment or renewal, 2) determine that a person is operating in violation of any registration law under the Commission's jurisdiction, or 3) order a person to cease and desist from a particular act.009.02B Applicant shall mean a person who files an application for registration or certification pursuant to the Retirement Communities and Subdivisions Act, the Time-Share Act, the Membership Campground Act, or the Subdivision Certification Law, or licensure pursuant to the Real Estate License Act.009.02C Petitioner shall mean a person who files a Petition for Review of a decision of the Director, unless the Petition is filed by the Director as provided in this section.009.02D Respondent shall mean a person against whom the Director files a Petition for Review as provided in this section.009.03 Petition for Review Any person whose legal rights, duties or privileges are specifically affected by a decision of the Director may obtain a public hearing before the Commission by filing a Petition for Review as provided in this subsection. In those circumstances where a person is entitled to a hearing before a decision of the Director may be enforced, the Director may file a Petition for Review.
009.03AFiled by Petitioner.009.03A1 The Petition for Review filed by a petitioner shall be captioned as follows: BEFORE THE STATE REAL ESTATE COMMISSION OF THE STATE OF NEBRASKA
In the Matter of)
Case No. ___________
[Name of Petitioner])
Petition for Review
Approved forms and information concerning procedures for filing a Petition for Review may be obtained from the Director at the normal business address of the Agency.
009.03A2 A Petition filed by a petitioner shall state the name and address of the Petitioner, identify the decision of the Director for which review is sought and attach a copy of the decision, state with particularity the alleged errors of fact and/or law contained in the decision, set forth the Petitioner's contentions with regard to the facts, identify the applicable statutes and regulations, state the relief sought, and shall be sworn to by the Petitioner. Filing the Petition for Review with the Agency shall constitute service on the Director.009.03A3 A Petition for Review under the Retirement Communities and Subdivisions Act, the Time-Share Act, or the Subdivision Certification Law, shall be filed within thirty (30) days after the decision of the Director was mailed.009.03A4 A Petition for Review under the Membership Campground Act shall be filed within thirty (30) days after the decision of the Director was mailed, unless the decision of the Director is a summary suspension provided for in Section 76-2108, in which case the Petition for Review shall be filed within fifteen (15) days of the service of the decision of the Director.009.03A5 Within twenty (20) days of the filing of the Petition for Review, the Director may file an Answer, setting forth any responses to the allegations contained in the Petition for Review. The Answer shall be served on counsel of record for the petitioner or on an unrepresented petitioner. Should the Director not file an Answer, the issues will be determined based upon the decision of the Director and the Petition for Review.009.03A6 A petition for review under Section 81-885.18 must be filed within thirty days of the applicant's receipt of notice of the Commission' refusal to accept the application. Notice of the Commission's refusal to accept the application shall be given by certified mail to the applicant by the Director within twenty days after the decision by Commission.009.03A7 A contested case against a person under section 009.03A will commence when the Petition for Review is filed. The rules regarding ex parte communications will apply when the Petition for Review is filed.009.03BFiled by Director.009.03B1 A Petition for Review filed by the Director shall be captioned as follows: BEFORE THE STATE REAL ESTATE COMMISSION OF THE STATE OF NEBRASKA
In the Matter of the) Case No. __________
Decision of the Director)
of the State Real Estate) Petition for Review
Commission Regarding)
[Name of Respondent])
009.03B2 A Petition filed by the Director shall state the name and address of each Respondent, identify the decision of the Director for which review is sought and attach a copy of the decision, state with particularity the facts and/or law on which the decision is based, and state the relief sought.009.03B3 The Director shall serve a copy of the Petition on each Respondent by certified mail.009.03B4 Within twenty (20) days following service of the Petition, the Respondent may file an Answer. The Answer shall be captioned in the manner designated in section 009.03B 1, except that it shall be denominated "Answer"; shall contain a concise response to each and every material allegation of the Petition; 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.009.03B5 If the Respondent fails to timely file an Answer conforming to the requirements of section 009.03B 4, the Commission may accept the allegations of the Petition for Review as true and may, after notice and hearing, enter an order consistent with the allegations of the Petition for Review.009.03B6 A contested case against a person under subsection 009.03B will commence when the Petition for Review is filed. The rules regarding ex parte communication will apply when the Petition for Review is filed.009.04 Other Pleadings Substantive or dispositive pleadings other than the Petition for Review and Answer shall not be allowed, other than amendments thereto.
009.05 Notice of Hearing The following shall apply to setting hearings and noticing Petitions for Review for hearing:
009.05A Notice of a hearing shall be sent to the Petitioner or Respondent not later than twenty (20) days prior to the date set for hearing.009.05B A hearing on a Petition for Review filed pursuant to Section 76-1736(2) of the Time-Share Act shall be held not more than forty-five (45) days after receipt of the Petition, unless the Petitioner consents to a later date.009.05C A hearing on a petition for review filed pursuant to Section 81-885.18 of the Real Estate License Act shall be set down to be conducted within sixty days of receipt of the petitioner's petition for review.009.06 Evidence in a Petition for Review proceeding will be presented in the following order: 009.06A Evidence is presented by the Director.009.06B Evidence is presented by the opposing party, whether a petitioner or respondent.009.06C Rebuttal evidence is presented by the Director.009.06D Surrebuttal evidence is presented by the opposing party.009.07 Consent Orders The following shall apply to Consent Orders:
009.07A The parties may enter into a written stipulation setting forth the terms and conditions of a Consent Order to be entered regarding the applicant or other person subject to the registration or certification laws under the jurisdiction of the Commission. Such order shall contain findings of fact, conclusions of law, and the decision of the Commission, including any acceptance, rejection, or modification of an application for registration or certification. It shall be signed by the person to be bound and shall be approved as to form by the respective legal counsel of the parties, if any.009.07B 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 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, her, or it at any hearing on the Petition for Review.009.07C 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.305 Neb. Admin. Code, ch. 4, § 009