NEBRASKA REAL ESTATE COMMISSION

November 15, 2001

Cornhusker Hotel                         Yankee Hill Room                         Lincoln, NE

Opening

Acting Chairperson Nigro convened a Meeting of the Nebraska Real Estate Commission at 9:04 a.m. on November 15, 2001, in the Yankee Hill Room of the Cornhusker Hotel, located at 333 South 13th Street in Lincoln, Nebraska. All of the members of the Real Estate Commission were present with the exception of Chairperson Gale, who was absent and excused. Acting Chairperson Nigro noted that the Commission consisted of six members for this Meeting, because there was one vacancy to be filled, and a quorum was present. Also present were Director Les Tyrrell, Deputy Director for Education Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Heidi Burklund. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, was present for the rule and regulation, legislative, and policy items.

Notice of Meeting (Adopt Agenda)

Director Tyrrell presented a Public Notice and Proofs of Publication thereof relating to this Meeting, all of which are attached to and made a part of these Minutes. Acting Chairperson Nigro reported that all Commissioners had been notified of the Meeting simultaneously, in writing, and that a proposed Tentative Agenda accompanied the notification.

Director Tyrrell noted that no items had been added since the Tentative Agenda was mailed to the Commissioners. There were two emergency Informal Special Appearances for the Commission to consider adding to the Agenda.

A motion was made by Moline and seconded by Wiebusch to add the two emergency Informal Special Appearances to the Agenda. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

After review of the Final Agenda, a motion was made by Johnson and seconded by Wiebusch to adopt the Final Agenda as amended. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Director Tyrrell introduced Christy Arfman, the new Transfer and Licensing Secretary.

Minutes of September 26-27, 2001

The Minutes of the Commission Meeting held on September 26-27, 2001, were considered.

After review, a motion was made by Johnson and seconded by Wiebusch to approve the Minutes as presented. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Receipts and Expenditures Report for September and October

Director Tyrrell presented the Receipts and Expenditures Reports for September and October 2001. Copies of said Reports are attached to and made a part of these Minutes.

With regard to the September Report, Director Tyrrell noted the following: there was nothing unusual to report in Receipts. Actual current month and year-to-date receipts were over the budgeted amount.

Expenditure Category 4211, Postage Expense, was over the monthly budgeted amount for Commission Comment postage, but was still under budget for the year; Category 4212, Communication Expense, showed zero expenditure because the bill was not posted in time; Category 4215, Publication and Printing, was over the monthly budgeted amount for the Commission Comment, but was still under budget for the year; Category 4251, Rent-Office Equipment, should have been charged $21 for the credit card swipe machine in the office, and will be credited; Category 4414, Education Services, was over the monthly budgeted amount, but was still under budget for the year, because there were a lot of candidates during August; and Category 4451, Legal Services Expense, was over the monthly budgeted amount due to rule and regulation changes and several time share registrations.

The Cash Fund Balance as of September 30, 2001, was $376,922.97, which compared to a Cash Fund Balance of $325,410.96 on September 30, 2000.

With regard to the October Report, Director Tyrrell noted the following: Receipts Category 7532, Examination Fees, was not divisible by $115.00 because there were applications still on file which only included $111.00, and the total included the additional $4.00 paid by those candidates.

In Expenditure Category 4144, Employee Assistance Program, the Commission received a refund because we have only 11 employees, not 12 as budgeted; Category 4211, Postage Expense, was a little over the monthly budgeted amount due to mailing renewals.

The Cash Fund Balance as of October 31, 2001, was $426,443.13, which compared to a Cash Fund Balance of $379,961.14 on October 31, 2000.

After discussion, a motion was made by Moline and seconded by Wiebusch to file the September and October Receipts and Expenditures Reports for audit. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Renewal Report

Director Tyrrell reported that renewals were being received at about the same pace as last year, and that this report included money deposited as of 11-14-01, not all the money received as of that date. Everybody was busy in the office. Based on the way things were working with staff and the new computer system, but especially due to the very fine staff work, we have been keeping up with renewals. Director Tyrrell anticipated having a contract person start Monday and work through approximately Dec. 14, to ensure that staff did not get bogged down when the other half of renewals arrived on Nov. 30.

Commissioner Wiebusch asked if quite a few renewals were done on the website. Director Tyrrell said that during September, 3 salespeople renewed on the website; during October, 2 brokers and 3 salespeople renewed on the website; and professional corporations seemed most inclined to use the website. Credit cards made up approximately 13-14% of receipts.

Commissioner Moline asked if it was possible to do something nice for staff under the state system, like take them out for a nice lunch or something, considering their extra efforts. Director Tyrrell said he could not take the money out of state funds.

No action was necessary on this Report.

Specialized Registrations

There were no Specialized Registrations to report.

Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other States

This Report, a copy of which is attached to and made a part of these Minutes, was presented by Deputy Director Hoffman and reported to be in order. Deputy Director Hoffman noted that there were no out-of-state people moving to Nebraska on this Report.

After review, a motion was made by Moline and seconded by Wiebusch to ratify issuance of the licenses as set forth in the Report. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Examination Reports for September and October

Deputy Director Hoffman presented Reports relating to the real estate examinations administered during September and October 2001. Copies of said Reports are attached to and made a part of these Minutes.

After review, a motion was made by Moline and seconded by Shepard to ratify the September and October Reports for the purpose of issuing licenses. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Commissioner Moline noted that good evaluations were received by the Scottsbluff site, and asked if their backups were trained. Deputy Director Hoffman noted that the Scottsbluff site was in a library on campus, and that each site had a main supervisor and a backup supervisor. Lori Tinkler and another AMP person recently toured all Nebraska facilities.

Acting Chairperson Nigro said she was glad to hear the applicant would receive a free retake. Deputy Director Hoffman agreed, because it was not a fair administration of the examination, and was not handled professionally. Deputy Director Hoffman said she felt the situation had been remedied.

AMP Advisory Committee Meeting Report

Deputy Director Hoffman reported on the AMP Advisory Committee Meeting, which was held in Kansas City, KS, on October 23, 2001.

Real Estate Education Matters

Prelicense Education Instructor Approval

Deputy Director Hoffman presented for ratification the Prelicense Education Instructor Approval Report, which listed approvals for four continuing education instructors. A copy of said Report is attached to and made a part of these Minutes.

After discussion, a motion was made by Wiebusch and seconded by Johnson to ratify the Report. Motion carried with Johnson, Shepard, Wiebusch, and Nigro voting aye, with Moline abstaining, and with Gale not participating or voting, being absent and excused.

Continuing Education Activity Approval

Deputy Director Hoffman presented for ratification the Continuing Education Activity Approval Report, which listed approvals for eight continuing education activities. A copy of said Report is attached to and made a part of these Minutes.

Commissioner Wiebusch asked if the Commission could put a deadline on permission to supervise. Director Tyrrell noted that the date of March 31, 2002, was mentioned in discussions. Acting Chairperson Nigro asked if 180 days seemed feasible. Deputy Director Hoffman said that was quite possible.

Commissioner Moline asked if Mr. Reynolds held other real estate licenses. Mr. Reynolds said he was licensed in Nebraska, Kansas, and Iowa. Commissioner Moline asked if he had other listings in the other states. Mr. Reynolds said the listings were not for real estate. Commissioner Moline asked if the part-time people were warehousing their licenses. Mr. Reynolds said that, due to their other jobs, they could spend very little time in the real estate business, but both were planning to keep their licenses with Mr. Glenn.

Commissioner Johnson said that Mr. Glenn was cutting it pretty close, trying to complete his education and pass the examination by March 31. Director Tyrrell noted that the Commission could give permission until the end of April, or whenever they chose.

Commissioner Moline noted that the Commission had done this before, but that the other person had a couple of years of experience, and he was concerned that Mr. Glenn had just been licensed since April 2001. Commissioner Moline asked if the other salesperson in the office had more experience. Mr. Glenn said yes, 17 years of experience. Mr. Glenn noted that he was new to real estate, but was accustomed to dealing with small businesses. Mr. Glenn said he understood the importance of following the rules, and hoped his business experience outside of real estate had bearing. Mr. Reynolds noted that, in business sales, Mr. Glenn would be working with small businesses.

After discussion, a motion was made by Johnson and seconded by Wiebusch to allow Mr. Reynolds to continue as the employing broker for Business Brokers Corporation of Lincoln on a temporary basis, until the end of April 2002. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

November 15, 9:15 a.m. - Richard E. Kavan,
Potential Salesperson Applicant

Director Tyrrell presented an Exhibit which included a salesperson application for Richard E. Kavan. A copy of said Exhibit is attached to and made a part of these Minutes. Mr. Kavan was present.

Director Tyrrell reviewed the application, and noted that it was being presented to the Commission due to the number of judgments against Mr. Kavan.

Mr. Kavan said he was in the homebuilding business for 30 years, and that the economic conditions in the last year caused the business to close. He had a few unsold properties, and the lag time in selling them caused judgments against him for the materials used in constructing homes. He was unable to pay the bills until the homes were sold. He was interested in moving forward with his life, and had talked to an Omaha broker regarding employment. He was ready to take the examination next week if the Commission approved his application.

Commissioner Moline asked if any of the judgments were for bad personal debts. Mr. Kavan said no, that he was in business for 30 years, and it was not his intention to ever go out of business. Mr. Kavan said he had most of his personal assets in the business.

Acting Chairperson Nigro asked if there were liens against the property. Mr. Kavan said he was trying to combine the debts and get the properties cleaned up and sold. Mr. Kavan said he did not imagine he could pay all the bills, but said he could satisfy a lot of the debt when the properties sold. Commissioner Wiebusch asked how many homes were involved. Mr. Kavan said three. Commissioner Moline asked if the homes already sold to the public had free and clear title. Mr. Kavan said yes.

Commissioner Shepard asked if the bankruptcy was personal or for the company. Mr. Kavan said it was personal. If he had done a business bankruptcy, the court would probably have just closed the doors. Mr. Kavan was trying to avoid that by moving the properties. Commissioner Wiebusch asked if the homes were currently on the market for sale. Mr. Kavan said yes.

Review Revisions to Title 299, Chapters 1, 2, 3, 5, & 7

Chapter 1

Counsel Widger noted that there were no new revisions to Chapter 1, and the revisions in the Exhibit were shown as approved by the Commission at its last meeting.

Chapter 2

Counsel Widger noted that Chapter 2, Section 003, was addressed by the Gale/Moline/Tyrrell subcommittee. After extensive discussion, the subcommittee recommended not changing the current language.

Commissioner Moline asked if the Commission needed to approve each change individually. Director Tyrrell said no, the Commission could approve the entire Exhibit for publication after discussion.

Chapter 3

Counsel Widger noted that staff reworded the new section, 006.02, based on concerns raised during Commission discussion at the previous Meeting.

Chapter 5

Director Tyrrell commented that he recently spoke to a group of licensees, and gave them a brief overview of the proposed rule changes. Two people in the group indicated that they did not like this provision, did not see any reason why they could not do that, and had just done it with their own houses they recently sold. Director Tyrrell had told them he would relay their comments to the Commission. Commissioner Moline asked if they were licensees in Nebraska. Director Tyrrell said yes, and noted that he just relayed their opposition.

Mr. Hoppe said the problem came up when people were agents for themselves. When he initially looked at the language, it did not click with him, but then he got that it was to prevent licensees from representing themselves and the other side.

Director Tyrrell noted that, if all changes were approved today, the earliest possible rule hearing would be at the January Meeting. If additional changes were made in December, the earliest rule hearing would be in February. Director Tyrrell noted that a legal notice had to be published, and the proposed changes had to be filed with the appropriate agencies. It made no difference to Director Tyrrell when the Commission decided to hold the rule hearing. Commissioner Moline said the Commission could make changes as needed, and could make more changes later if there were problems. Director Tyrrell agreed, and said the Commission could come back and do additional changes in March, if desired.

Susan Geschwender, from Randall School, asked how the proposed 003.27 regulation would work in real life if licensees wished to purchase their own listings. Ms. Geschwender asked if a licensee would have to bring in another licensee to present the offer. Director Tyrrell said they might have to, under this rule.

Ms. Geschwender said she was trying to understand how to tell people to do it right. Mr. Hoppe said the licensee would probably have to sever the relationship. Mr. Hoppe noted that it would be a bigger problem for a sole proprietor than a company, which could just bring in another affiliated licensee for the transaction. The problem was that the person would clearly be representing himself and purporting to represent the seller, and the two positions were vastly inconsistent. Ms. Geschwender noted that was why disclosure was required, but that this rule raised the bar.

Director Tyrrell asked if licensees could comply with agency disclosure when an actual transaction occurred, and noted that the proposed rule had ramifications. Commissioner Moline said the rule impeded practice, and noted that a licensee could not legally follow dual agency when the licensee knew both sides. Counsel Widger and Mr. Hoppe agreed. Counsel Widger noted the intent was to put licensees on notice they were violating the law. Commissioner Moline said somebody would have a lawsuit on it.

Commissioner Wiebusch noted that a licensee would still have knowledge of both sides, even if the agency relationship was severed. Mr. Hoppe said that, if the agency relationship was severed, the only duty that would carry on was confidentiality, plus to turn over documents.

Commissioner Moline said the Commission needed solutions. Commissioner Wiebusch asked why the Commission should not do it this way. Director Tyrrell said that, during discussion, he was seeing more problems with acting as a dual agent, whether there was a signed dual agency agreement or not. Director Tyrrell was seeing more ramifications, and thought the Commission might be better off addressing the issue under agency law if a complaint arose, if the attorneys agreed.

Commissioner Moline asked how it would be dealt with under agency law. Director Tyrrell said that if harm took place and a complaint was filed, the Commission could address it under agency law. Mr. Hoppe noted there was also a requirement that licensees practice reasonable skill. Counsel Widger said licensees were required to act in good faith, and if there was no agency agreement, it would be a breach of confidentiality.

Commissioner Moline confirmed that the Commission could address the issue without the new rule. Counsel Widger said yes. Commissioner Moline said the rule would just be a red flag to tell licensees not to do it. Commissioner Moline suggested that the Commission take out the new section and address it some other way, so that agents understood they could not do that. Commissioner Moline said that, any way it was done, it was a problem under agency law.

A motion was made by Moline and seconded by Johnson to renumber section 003.28 to 003.27, and approve the provisions as presented. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Counsel Widger noted the last paragraph, which was developed to prohibit a licensee from altering documents without the written approval of the client. The Gale/Moline/Tyrrell subcommittee decided against recommending the language. Commissioner Moline noted that the provision would bind the hands of licensees regarding clients who were traveling or out of state. If a complaint was filed, it could be addressed under other areas of the License Law. It was the consensus of the Commission to leave out the provision.

Chapter 7

A motion was made by Moline and seconded by Wiebusch to approve the language as presented. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Acting Chairperson Nigro clarified that was how it was currently done. Deputy Director Hoffman said yes.

A motion was made by Moline and seconded by Johnson to approve the language as presented. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Counsel Widger noted that section 006 contained new revisions from staff to clarify the language.

A motion was made by Wiebusch and seconded by Shepard to approve the language as presented. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Acting Chairperson Nigro noted that the Exhibits included a fax from Craig Larabee at Larabee School of Real Estate, and opened the floor for discussion.

Commissioner Wiebusch noted that the Commission had just gotten the fax at the Meeting. Mr. Larabee brought out some concerns regarding the handling of real estate issues. Commissioner Wiebusch was not sure if Mr. Larabee was having a problem with the Association, but thought he had a point that it might be appropriate to have providers on the committee addressing education issues. Commissioner Wiebusch was not sure if that had already been done.

Commissioner Wiebusch asked if Mr. Collis agreed. Mr. Collis said that he saw the proposed changes as they came through the Association, and noted that the discussion had been going on at Commission Meetings since May. Mr. Collis noted that he and Ms. Geschwender had adjusted their schedules to be in attendance.

Ms. Geschwender said she watched the Minutes closely, but had not seen what all was going on and what changes were proposed. Deputy Director Hoffman said she had encouraged providers to watch the Minutes and come to Meetings. Deputy Director Hoffman also noted that the Minutes available on the website and sent to subscribers were usually at least a month behind, because they were not published until they were approved by the Commission at the following Meeting. She felt that delay could contribute to the perception.

Director Tyrrell noted that if an item was on the Agenda, which was also posted on the website, staff had the Exhibits available to the public in some form and would provide them to anyone who asked. Director Tyrrell said that staff could send drafts of future education matters to local providers, if the Commission so desired. Anyone who wanted to speak on the changes still had the opportunity to come to the Public Hearing.

Acting Chairperson Nigro noted there was nothing to prohibit providers from making proposals in the future.

Commissioner Moline asked about other interested groups. Director Tyrrell said that, in the past, staff had found populations interested in certain items. Commissioner Moline asked that staff write to Mr. Larabee and let him know about the Public Hearing.

A motion was made by Moline and seconded by Wiebusch that the Exhibit be considered as a draft for publication purposes as amended at the Meeting, and be set for Public Hearing.

Commissioner Johnson asked the Commission to revisit Chapter 3, section 006. Commissioner Johnson said he was asked to bring up possibly changing the 48-hour requirement for depositing earnest money. Commissioner Johnson noted that he did not know the history of the requirement or how critical it was.

Counsel Widger said the law required timely deposit of earnest money after the offer was accepted, not when it came in. The 48-hour requirement was intended to allow for weekends, and was a Commission policy issue. Counsel Widger did not know if there had ever been a complaint filed if that was the only violation, because it was usually discovered and handled during the trust account examination.

Acting Chairperson Nigro asked Deputy Director Mayrose if it was an issue. Deputy Director Mayrose said he did not think so. Commissioner Moline said he knew of instances where someone forgot to get an earnest money check out of their purse or whatever, and it was handled during the examination exit interview.

Commissioner Moline said he would second a motion to change the requirement to 72 hours. Commissioner Johnson said licensees may have the same problems with 72 hours, and did not know if it needed to be changed.

Director Tyrrell said he had a call recently on a mailed check from another state which took 2-3 days to get to the broker. He told them to date stamp it in when it was received, and save the envelope for the postmark. Director Tyrrell noted that licensees could not deposit the money until they knew the offer was accepted. Director Tyrrell also noted that the Commission would have to change the 48-hour requirement in another section as well.

Commissioner Johnson offered an amendment to the pending motion to change the requirement in Chapters 3 and 5 to 72 hours. Commissioner Moline and Commissioner Wiebusch accepted it as a friendly amendment.

Commissioner Moline said he encouraged the Commission to make the change. Commissioner Moline said that licensees do not miss the deadline very often, and then not by much. The change would not eliminate the problem, and the Commission still needed it in rule, but this change would take care of the almost-got-there situations.

Mr. Hoppe asserted that the provision would not apply to mail-ins. Director Tyrrell noted that was exactly the example he gave. When a Florida broker got earnest money and accepted the offer, the money would not get to the Nebraska broker until several days later.

Commissioner Shepard asked Deputy Director Mayrose to comment. Deputy Director Mayrose said that, in his opinion, licensees would have the same problems either way. The same deficiency report would be written.

Acting Chairperson Nigro said that 72 hours was still timely, and reminded the Commission that the requirement would apply to all acceptances and drafts.

A vote was taken on the pending motion as amended. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Consider Guidelines for Continuing Education Activities

Commissioner Wiebusch asked how it would be handled if a new course was not on the list. Counsel Widger said it would be handled the same way it was now. Deputy Director Hoffman would review and approve the activity, contingent upon Commission approval. The process had not changed at all with the list, it was just a guideline for approvable subject matter. Deputy Director Hoffman said it was her impression that there could be a change in timeliness. If an activity clearly fell into one of the subject matter categories on the list, Deputy Director Hoffman could approve the course with no problem, and the provider could offer it. If it did not, Deputy Director Hoffman would not be able to approve the course or allow it to be offered until after the next Commission Meeting, after the Commission approved adding the subject matter to the list. Deputy Director Hoffman said there could potentially be a delay if the subject matter was not on the list. Director Tyrrell countered that this was the same process as before. Only questions about approvable subject matter would be brought to the Commission. Deputy Director Hoffman clarified her statements by using an example of the first computer course.

Commissioner Moline asked if staff was now OK with the list. Deputy Director Hoffman said her original fear had been that all subject matter currently approved would not be included on the list, but that the list now incorporated all activities currently being offered, and was all-inclusive at this point.

A motion was made by Wiebusch and seconded by Moline that Exhibit 14a be adopted as Commission policy as presented. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Acting Chairperson Nigro said she did not work with tenants and landlords, and questioned the need for the change. Counsel Widger said she did not know if there was a need to break it into two brochures.

Commissioner Wiebusch noted that her office did both, and used the same form. Their office had underlined landlord/tenant and printed those in a different color. Commissioner Wiebusch did not see the need for this change, because they had absolutely no problem with it.

Commissioner Moline said that Woods Brothers had also done that on their own, and did not see a need for the change.

Acting Chairperson Nigro said there would be a cost factor to the Commission, for translations and printing. Commissioner Moline noted that, if the Commission changed anything on the brochure, they would have that expense anyway, and felt it was not lot of cost. Commissioner Wiebusch noted that it would be the cost of two separate brochures.

Commissioner Moline asked how the Commission had picked Spanish and Vietnamese for translation. Director Tyrrell said that, when the agency law was passed, the Commission decided on them. At the time, Spanish was used throughout the state, and Vietnamese was used in certain regions.

Commissioner Johnson said he did not have a strong preference either way, but felt it was less confusing to the majority of people to split it into two brochures. He agreed with Commissioner Moline that it would not be a great expense.

Commissioner Moline said that if it was easier for the public, he was more in favor of the change. Commissioner Wiebusch noted that they had underlined specific paragraphs, not individual words, in their brochures. Acting Chairperson Nigro clarified that it would create a separate brochure for buyers and sellers.

Commissioner Shepard said people he worked with had not had a problem with confusion, but it could be possible. It made no difference to him whether the brochure was split.

Commissioner Moline asked if changes had to go to the Legislature. Counsel Widger noted that the Commission was requested to approve a form, so it would not have to go back to the Legislature. Mr. Hoppe asked if the Commission could approve three versions. Counsel Widger said it could, and the Commission could just have the interpreter translate all three.

Counsel Widger noted that staff concerns regarding the language changes were noted on a separate page, and reviewed them.

Mr. Hoppe asked if adding representation checkmarks for the licensee to complete would solve the problem. Counsel Widger said no, because the proposed language did not include all of the statutory requirements.

Director Tyrrell noted that staff did not think a second brochure was required at the time dual agency occurred, even if dual agency was not checked on the initial agency acknowledgment. When dual agency occurred, licensees had to get a written consent to dual agency. Director Tyrrell noted that some brokers required their licensees to obtain a new brochure, but that was not a Commission requirement.

Commissioner Shepard asked for confirmation that licensees could check two boxes. Commissioner Moline said yes, it was done in Lincoln. Mr. Hoppe said it would happen if the licensee was offering to act as an agent.

Commissioner Moline suggested that the Commission go through the rest of the staff changes, and have staff bring back the final forms. Counsel Widger reviewed the additional suggested changes on the Exhibit.

Mr. Hoppe said his only problem with the staff changes was leaving in the customer language. He believed the customer was the one not represented by a licensee in the transaction. If one agent represented the seller and another represented the buyer, Mr. Hoppe maintained there was no customer. Mr. Hoppe asserted a principal was only a customer if not represented by a licensee. Counsel Widger said staff would work on the language.

Commissioner Moline asked if everyone was OK with the other changes. It was the consensus of the Commission that the other staff changes were acceptable.

Consider Revisions to Title 302

Director Tyrrell noted that items 5 and 11 on page 2 could create situations where unlicensed persons answered questions on property. Acting Chairperson Nigro asked about item 8. Director Tyrrell said he did not know what the MLS regulations were. Commissioner Moline said that the Lincoln Board allowed unlicensed people to have a key and code for picking up lockboxes and letting in authorized people like plumbers and inspectors. Director Tyrrell said it did not look like an MLS enforcement problem. Marilyn Johnson of CBSHOME Real Estate said it should not be a problem.

Commissioner Moline asked if staff was looking to incorporate the entire list, except a couple of items. Director Tyrrell said no, that staff had only provided a list of things allowed in other jurisdictions, as the Commission had requested. Director Tyrrell had researched the subject with the 25 jurisdictions who responded to his information request. Director Tyrrell said he did not necessarily recommend adding the items, the information was merely provided to the Commission for their decision. Director Tyrrell did not want the Commission to cause problems for other entities, like the MLS. The Commission needed to decide which items to include, if any.

Commissioner Moline suggested changing item 16 to allow measurements if verified by the licensee.

Commissioner Johnson asked for confirmation that the items were actually allowed in other jurisdictions. Director Tyrrell said yes, and noted that it may just be one other jurisdiction.

Director Tyrrell noted that item 7, which allowed unlicensed people to take pictures of properties, might not be needed on the list of allowed activities. Director Tyrrell noted that an activity was not automatically prohibited just because it was not on the list of allowed activities. Director Tyrrell noted that taking pictures was not a licensed activity. Director Tyrrell said he was not familiar with MLS rules. Commissioner Moline agreed that some items went without saying, and noted that licensees sent unlicensed people to move signs all the time. Director Tyrrell said that providing a more lengthy list of allowed activities might lead to the perception that if an activity was not listed as allowed, then it was not allowed. Director Tyrrell preferred to only address prohibitions in the law.

Commissioner Wiebusch asked what item 2, regarding handouts, included. Director Tyrrell said it would include a receptionist handing out a listing sheet in the office.

Counsel Widger noted that staff recommended that item 6 on page 3 be added if item 11 on page 2 was not added.

A motion was made by Moline and seconded by Wiebusch regarding the list of allowable activity: to substitute item 14 on page 2 for item 16 on page 1; to add item 13 on page 2 to the list on page 1, and add the proviso that it was other than as prohibited by item 1 on page 3; and to include item 1 on page 2 with item 12 on page 1.

Commissioner Moline said he wanted it noted in the Minutes that the list of allowable activity did not preclude unlicensed individuals from doing common-sense things. The items on the list specifically addressed licensed activity, not all permissible activity.

Commissioner Johnson asked if item 3 on page 2, regarding scheduling inspections and appraisals, was already included on page 1. Commissioner Moline suggested it was covered by item 13. Commissioner Wiebusch said it could be added to item 15. Commissioner Johnson said it could be added to either 13 or 15. Director Tyrrell noted that the Commission might not need to add it, since the unlicensed person would not be dealing with the public.

Commissioner Moline asked how staff handled it when the public called and wanted a list of licensees, and said he had received a complaint that the information was not available on disk. Commissioner Moline thought it would be much easier to provide on disk, not on paper. Ms. Burklund said that option may be available eventually through the licensure software. Ms. Burklund noted that rosters were out of date the day after they were printed, whether on disk or on paper, due to transfers and new licensees. Ms. Burklund encouraged people to buy mailing labels instead, as close to the date of the mailing as possible, so that the most up-to-date information was used to avoid returned mail.

Commissioner Moline said that staff had done a great job so far, and would be very busy next year to get all the changes made. Director Tyrrell agreed, and said he would add the insurance and licensure software items per discussion.

After discussion, a motion was made by Johnson and seconded by Shepard that the objectives be adopted as amended. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Approval of Travel Expenditures to ARELLO Special Meeting - Scottsdale, AZ, on January 10-14, 2002

Director Tyrrell presented an Exhibit which specified per-attendee expenses for the ARELLO Special Meeting. A copy of said Exhibit is attached to and made a part of these Minutes.

After discussion, a motion was made by Moline and seconded by Wiebusch to approve the expenditures as presented for Commission and staff attendees. Motion carried with Johnson, Moline, Shepard, Wiebusch, and Nigro voting aye, and with Gale not participating or voting, being absent and excused.

Legislative Matters

Proposed Legislative Bill - Removal of Errors and Omissions

Insurance Premium Limit and Amendment to Exception

in Seller Property Condition Disclosure Law

Director Tyrrell presented an Exhibit which consisted of a proposed legislative bill. A copy of said Exhibit is attached to and made a part of these Minutes.

Other Proposals

Information Matters

Service Satisfaction Survey - September Results

Director Tyrrell presented an Exhibit regarding the September Service Satisfaction Survey. A copy of said Exhibit is attached to and made a part of these Minutes.

Surveys were included in approximately every fourth piece of mail during September, excluding renewals. 80 were mailed, and 11 were returned. All comments received were very positive.

Acting Chairperson Nigro asked about the intent of the final comments. Director Tyrrell said his interpretation was that Commission staff were not as bureaucratic as the staff at some regulatory agencies. Acting Chairperson Nigro agreed. Director Tyrrell said that he got a lot of comments like that over the phone, comparing our staff favorably with other state agencies and other Real Estate Commissions.

No action was necessary on this Report.

ARELLO Annual Meeting - Report of Attendees