|
|
|
NEBRASKA REAL ESTATE COMMISSION May 28, 2003 Staybridge Suites Staybridge Room Lincoln, NE Opening Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:06 a.m. on May 28, 2003, in the Staybridge Room of the Staybridge Suites, located at 2701 Fletcher Avenue in Lincoln, Nebraska. All of the members of the Real Estate Commission were 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 investigative matters. Rob Kinsey, Special Assistant Attorney General and Counsel to the Commission, was present for the hearing. 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. Chairperson Gale reported that all Commissioners had been notified of the meeting simultaneously, in writing, and that the proposed Tentative Agenda accompanied the notification. Chairperson Gale pointed out to those in attendance that a public copy of the materials being used during the meeting was available to the public on the counsel table in the meeting room, and that the procedures followed were in accordance with the Open Meetings Law. Chairperson Gale asked that guests sign the guest list. Director Tyrrell noted that no agenda items had been added since the Tentative Agenda was mailed to the Commissioners. After review of the Final Agenda, a motion was made by Wiebusch and seconded by Strand to adopt the Final Agenda as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Minutes of April 16, 2003 The minutes of the Commission meeting held on April 16, 2003, were considered. After review, a motion was made by Wiebusch and seconded by Johnson to approve the minutes as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Receipts and Expenditures Report for April Director Tyrrell presented the Receipts and Expenditures Report for April. A copy of said report is attached to and made a part of these minutes. Director Tyrrell noted that Receipts Category 8111, Investment Interest, reflected a two-month payment of interest on the Cash Fund Balance for February and March. Expenditures Category 4271, Repair & Maintenance of Office Equipment, was for repair of 7 of the 8 chairs in the conference room; Category 4711, Board & Lodging, reflected expenditures for the April ARELLO meeting; Category 4491, Other Operating Expense, showed no Records Management expense due to a problem interfacing within NIS, and the pending bill will be paid in May; and Category 4731, State-Owned Transportation, showed a two-month payment. The Cash Fund Balance as of April 30, 2003, was $753,204.69, which compared to a Cash Fund Balance of $642,735.85 on April 30, 2002. Amended Receipts and Expenditures Report for March Director Tyrrell presented the amended Receipts and Expenditures Report for March. A copy of said report is attached to and made a part of these minutes. Director Tyrrell reported that the new NIS accounting system had changed the closing date of accounts. Accounts used to close on the last day of the month, but now may not close until the 3rd of the following month. The March report showed the account standing as of March 31st, but had to be amended on page 2 regarding the net change to accounts payable, for items posted before closing. That changed the Cash Fund Balance to $794,000.80. After discussion, a motion was made by Moline and seconded by Strand to file the April and amended March Receipts and Expenditures Reports for audit. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Specialized Registrations There were no specialized registrations to report. Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other Jurisdictions Report Deputy Director Hoffman presented for ratification the Non-Resident Licenses and Resident Licenses Issued to Persons Holding Licenses in Other Jurisdictions Report, a copy of which is attached to and made a part of these minutes. 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, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. April Examination Report Deputy Director Hoffman presented for ratification the April Examination Report, a copy of which is attached to and made a part of these minutes. After review, a motion was made by Moline and seconded by Johnson to ratify the April Examination Report for the purpose of issuing licenses. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Real Estate Education Matters Pre-License Education Instructor Approval Deputy Director Hoffman presented for ratification the Pre-License Education Instructor Approval Report, a copy of which is attached to and made a part of these minutes. Continuing Education Activity Approval Deputy Director Hoffman presented for ratification the Continuing Education Activity Approval Report, a copy of which is attached to and made a part of these minutes. Continuing Education Instructor Approval Deputy Director Hoffman presented for ratification the Continuing Education Instructor Approval Report, a copy of which is attached to and made a part of these minutes. After discussion, a motion was made by Wiebusch and seconded by Strand to ratify the reports. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Continuing Education Activity Rejection Deputy Director Hoffman presented the Continuing Education Activity Rejection Report, a copy of which is attached to and made a part of these minutes. No action was necessary on this report. Continuing Education Activity Significant Change Deputy Director Hoffman presented for ratification the Continuing Education Activity Significant Change Report, a copy of which is attached to and made a part of these minutes. After discussion, a motion was made by Moline and seconded by Wiebusch to ratify the report. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. 2003 Instructor Development Workshop Report Deputy Director Hoffman reported that Diane Simpson conducted the 2003 Instructor Development Workshop on April 30. Twenty-five instructors were in attendance, and thirteen who had registered did not attend. The topic was the top 10 mistakes of professional educators, and the feedback was very positive. No action was necessary on this report. Pending Sworn Complaints and Investigative Matters Director Tyrrell presented a summary report of the pending complaints, which included a list of licensees presently under disciplinary action or on appeal. A copy of said report is attached to and made a part of these minutes. No action was necessary on this report. The following sworn complaints and investigative matters were presented to the Commission: =s agent in the complaint, requesting that the agent clarify superceding contracts vs. amendments with their legal counsel, and implement a policy as recommended by their legal counsel. Item D Complaint #2003-001 - Lonnie D. Davis vs. Alvin A. Avery Prior to discussion of this matter, Commissioner Moline recused himself, thereby nullifying any potential conflict of interest. Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Poskochil and seconded by Johnson that the complaint be dismissed without prejudice. Motion carried with Johnson, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest. Item E Complaint #2003-003 - Lonnie D. Davis vs. Lisa L. Crumrine Prior to discussion of this matter, Commissioner Moline recused himself, thereby nullifying any potential conflict of interest. Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Wiebusch and seconded by Strand that the complaint be dismissed without prejudice. Motion carried with Johnson, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye, and with Moline not participating or voting, having recused himself, thereby nullifying any potential conflict of interest. Item F Complaint #2003-010 - Phyllis & Karl Kostbaan vs. Charolett Mae Janssen & Sharon Gloria Meyer Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Strand and seconded by Moline that the complaint be dismissed without prejudice, and that Director Tyrrell send a cautionary letter to all licensees involved regarding early possession and following the contract provisions. Motion carried with Moline, Shepard, Strand, and Gale voting aye, and with Wiebusch, Johnson, and Poskochil voting nay. Commissioner Johnson requested that an article warning of the potential ramifications of early possession be placed in the Commission Comment. Item G Complaint #2003-011 Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Poskochil and seconded by Moline that the complaint be set for hearing on both alleged violations noted on page 4 of the investigative report. After further discussion of potential amendments, the motion was withdrawn by the mover and the seconder. A motion was made by Poskochil and seconded by Moline that the complaint be held in abeyance, and that the Commission file a complaint on its own motion on the alleged violations of Neb. Rev. Stat. Sections 76-2418(1)(b) & (c), 76-2421(1), and 81-885.24(29). Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Item H Complaint #2003-012 - Brian Eugene Timmons vs. Michael Joe McDowell Deputy Director Mayrose presented the alleged violations and investigative report to the Commission and, when necessary, answered questions on this matter. After being advised of the results of the investigation and discussion, a motion was made by Moline and seconded by Wiebusch that the complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Item I Complaint #2003-013
Presentation of Stipulation and Consent Orders Complaint #2003-023, Commission vs. Michael Dean Slatten Deputy Director Mayrose presented a stipulation and consent order in the matter of Complaint #2003-023, Commission vs. Michael Dean Slatten. A copy of said order is attached to and made a part of these minutes. Mr. Slatten was not present. Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the order, which had been signed by Mr. Slatten. The order specified a two-year suspension of his broker license, all served on probation, plus twelve hours of additional continuing education, consisting of 3 hours in contracts, 3 in trust accounts, 3 in license law, and 3 in agency, to be completed within six months. After discussion, a motion was made by Moline and seconded by Poskochil to enter into the order as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. A motion was made by Moline and seconded by Wiebusch to dismiss Complaint #2003-005, which was held in abeyance pending the outcome of the Commission =s complaint. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.Hearings Complaint #2003-006, Marilyn Christensen vs. Robert L. Pelshaw A hearing was held on May 28, at 9:30 a.m., in the matter of Complaint #2003-006, Marilyn Christensen vs. Robert L. Pelshaw. Rob Kinsey, Special Assistant Attorney General and Counsel to the Commission, appeared for the Complainant. Respondent Robert L. Pelshaw was present and represented by Counsel Gerald Friedrichsen of Omaha. After opening statements, Counsel Kinsey presented 18 exhibits, all of which were offered and received by Chairperson Gale, and called Mr. Pelshaw as a witness. Counsel Friedrichsen presented no exhibits, and did not call additional witnesses. At 11:02 a.m. on May 28, Chairperson Gale declared a brief recess, and reconvened the meeting and hearing at 11:17 a.m. After closing arguments had been presented, Chairperson Gale declared the hearing concluded. Chairperson Gale summarized the case for the Commissioners. Discussion centered on the fact that the purchase agreement clearly stated that the earnest money was to be deposited in the Murante trust account, then would go wherever the parties agreed. There was no letter of instruction to deposit the earnest money directly to the title company. If a change was made to a contract, it needed to be in writing. Licensees were required to follow the statute and the terms of the contract, and could not deviate from what was in writing. The tracking mechanism was in place to protect both parties, so there could be no question as to where the earnest money was at all times, as agreed by both parties. After discussion, a motion was made by Moline and seconded by Wiebusch that Mr. Pelshaw be found in violation of Neb. Rev. Stat. Section 81-885.24(24). Commissioner Moline clarified that he felt it was a violation because the earnest money was not deposited in the broker =s trust account, per the terms of the contract.A vote was taken on the pending motion. Motion carried with Moline, Poskochil, Shepard, and Wiebusch voting aye, and with Johnson, Strand, and Gale voting nay. Chairperson Gale then opened the disciplinary envelope, and noted that Mr. Pelshaw had previously been disciplined for violations of several sections of Neb. Rev. Stat. Section 81-885.24. The Commission had entered into a stipulation and consent order with Mr. Pelshaw which specified a suspension of his license for 2 years, served on probation. A motion was made by Moline and seconded by Wiebusch to censure Mr. Pelshaw =s license, and require that three hours of additional continuing education in trust accounts be completed within six months. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.Chairperson Gale notified the Respondent that the costs incurred for the court reporter and any witness fees would be billed to the Respondent, as provided for in 305 NAC Chapter 4, and that the Respondent would have thirty days from the date of the order to reimburse the Commission for said costs. Chairperson Gale noted that he would work with staff to prepare the order. Chairperson Gale announced that all exhibits related to this hearing would be retained in the Commission office. The hearing was adjourned at 12:35 p.m. Informal Special Appearances May 28, 1:15 p.m. - Terry Smith, Potential Salesperson Applicant Director Tyrrell presented an exhibit which included correspondence regarding Mr. Smith =s special appearance, and information regarding Mr. Smith=s criminal history. A copy of said exhibit is attached to and made a part of these minutes. Mr. Smith was present.Chairperson Gale reviewed the procedure for informal special appearances. Mr. Smith said that most people in general are fit and qualified to try anything they want to do, and to have the opportunity to do it the way it must be done. He had done nothing to be prohibited from going into real estate. Mr. Smith said he was 34, and was an entrepreneur, so he had no job per se. He started businesses with partners, then was bought out or manipulated out of them. He had committed a federal crime when he was fairly young, and people did not sit too well with that. He was not able to sustain himself with that on his record. When he was 18 or 19, he was charged in a fairly large indictment, but he was one of the smaller guys in the indictment. It was a standing joke with the prosecutors that he was their Christmas gift, because they were not after him, but got him in the process of getting other people. He never got caught, because he quit. He did not testify on behalf of the prosecutor against anybody, because it was not his job to get killed for a prosecutor who could not put his case together. It was not his place to tell on someone. Mr. Smith said he took responsibility for himself and his actions. Chairperson Gale noted that testifying sometimes works in a person =s favor. Mr. Smith said that, if he had, he would not be having this conversation.Mr. Smith said he served a 28-month sentence in Yankton, South Dakota, then served 5 years on probation, which he finished. There were a lot of loose ends when he was sent to South Dakota, which were mostly traffic things, because he was not a burglar or anything. He dealt with them as they came up, as much as the federal government would allow him to. He was in a federal halfway house in Council Bluffs, Iowa, after 22 months in South Dakota. All his probation was served in Omaha. Mr. Smith came here to be re-entered into society. Chairperson Gale asked Mr. Smith if the cocaine conviction was his most serious criminal offense, in his opinion. Mr. Smith said yes. He still had problems with the Omaha Police Department (OPD), because it was a federal case. Mr. Smith said he still lived a pretty comfortable life, just not illegally. OPD officers were still trying to catch him doing something illegal. He was stopped numerous times, and because officers have to give a charge for stopping someone, there were lots of charges put into his record and then dismissed. Mr. Smith said a lot were put in capias, which he did not know until now. There was a lot of repeated information on the sheet, which included entries for a sentence, which he would then appeal, then another entry for the sentence on the appeal. Those were mainly regarding his DUI in 1997. Mr. Smith maintained that the police were not stopping him because he was drunk, but because he was driving a new car into a $350,000 house =s garage. When the police realized he was not breaking in, they should not have been on his property, but they got a breathalyzer to justify it. That was on Mr. Smith=s record 3-4 times because of appeals. He finally asked the judge to recuse herself, because she just would not let it go.Mr. Smith said there was one other charge of significance, which occurred when he bought rims and tires, and the seller put the wrong ones on his car and would not take them back. There was an altercation, but he eventually paid the man. Chairperson Gale asked if Mr. Smith got his GED. Mr. Smith said yes, while incarcerated in South Dakota. He had dropped out of school several times, from trying to do too many things. He had lived with his grandmother, was driving at 14, and got a brand-new car at 16. Then his grandmother died, so Mr. Smith had to do something to keep up the car payments. Mr. Smith said he should have given up the car, but he did everything else first, because it seemed more important at the time to keep driving. Mr. Smith got his GED and took some college courses in South Dakota. Mr. Smith said he could not get licensed to be in anybody =s bank. He was told he could get a pardon after a certain time, but it was a federal crime, so he would need a pardon from the President.Chairperson Gale asked when Mr. Smith became interested in real estate. Mr. Smith said he had always been interested, prior to South Dakota. At South Dakota, while taking classes, he realized that real estate was about the closest he would ever be to having a job and being self-employed. Mr. Smith said he would make as much money as he wanted, depending on sales, and could set his own income, whether he wanted $50,000 or $100,000. Chairperson Gale asked if he had talked to brokers about employment. Mr. Smith said he had talked to some people, including mortgage brokers, and had helped a lot of people buy properties. Mr. Smith said he had bought a nice-sized house himself. He liked being in the middle of the deal, negotiating and getting the payout. Chairperson Gale noted that, under the Commission =s guidelines, applicants have to appear before the Commission for a felony conviction, and would be denied licensure unless extraordinary circumstances were present in cases of felony violent crimes or financial crimes. The Commission could look at the circumstances, which included whether a pardon was received. Mr. Smith clarified that the federal charge resulted in a 1990 sentence, and the investigation was conducted in 1987-88. Mr. Smith said he had no other felonies. Chairperson Gale noted that Mr. Smith also had a long list of charges, some of which were dismissed, beginning in 1994. Mr. Smith said he tried to get further information regarding the charges, but the report would take 3-4 weeks. A lot of it was prior to South Dakota, for driving offenses that were not taken care of while he was gone. He was working with a different attorney on those, because the public defender for the cocaine charge said there was no more he could do after that case was over.Chairperson Gale noted a charge in 1999, for negligent driving, that was dismissed. Also in 1999, at the same time, was a DUI, fine, and jail time. Then there was another DUI. Mr. Smith said that was the same charge. Any other judge would have thrown it out. He was told he could have no work release, etc. Chairperson Gale noted that it was based on a breathalyzer test. Mr. Smith said he was at a bar for a couple of hours, which was around the corner from his house. The police were outside observing. They saw two black guys get into an in-transit car, and followed them. The police had 5-6 police cars at his house, and ran up with their guns drawn. Mr. Smith had to get the deed to his house and title to his car to show the police officer, to prove it was his house. Chairperson Gale asked if the only charge was the DUI. Mr. Smith said it was the only charge the police officer could give him, because the other stuff was thrown out. Mr. Smith said it only took 2 beers to be drunk in Nebraska. That happened in early 1999. Chairperson Gale asked to how many convictions Mr. Smith had pled guilty since 1990, other than traffic violations. Mr. Smith said none. Chairperson Gale noted a bad check conviction in 1998. Mr. Smith said they fought about that in court. He had written a check for $3200 for tires and rims, then found out he had paid for the wrong product, and the seller would not take it back. He said it showed as more serious, because he defaulted on the whole check, not just the disputed amount. Regardless, the judge and prosecutor understood he did not get the product he wanted, but they said he still wrote the check. Mr. Smith said he did not deny writing the check, but when he got his car back from the person who picked it up for him, he realized the seller had put on the wrong product. The seller did not make it right and would not take back the product, because it was now a used product, because it had been driven. Mr. Smith tried to take the product back to him, and they went back and forth. So that it did not look as serious, Mr. Smith paid it to make it a misdemeanor charge, instead of a felony of over $499. When Mr. Smith paid him, the seller gave him part of his money back. Mr. Smith paid $3200, and got $1000 back from the seller, because it was not the product he ordered. Chairperson Gale noted that driving safety was important, because licensees spent a lot of time in the car, and could be dangerous to others and their passengers. The Commission had a high duty to the public to protect them. Chairperson Gale said that Mr. Smith had a lot of troublesome charges. Mr. Smith said that he now drives a 1990 Cadillac Brougham, because that =s what they expect a young black man to be driving. Mr. Smith said he did not even live in his house anymore, because he was tired of being pulled over in his neighborhood. Mr. Smith used to drive a Viper, but got pulled over too many times.Chairperson Gale asked if Mr. Smith served jail time for the reckless driving charge on page 16. Mr. Smith asked what page Chairperson Gale was on. Mr. Smith clarified that he did not get sentenced to jail for reckless driving, but was arrested on the spot. The police tried to impound his car, and they had an altercation because Mr. Smith had called a friend to pick up his car. Chairperson Gale asked where the record showed that charge was dismissed. Mr. Smith said the next line showed that the person entering the information had made a mistake. Chairperson Gale noted the other charges on the same day. Mr. Smith said he was not sentenced on that day, just cited. Those were the reasons the officer used to pick him up. A lot of the stuff was from same charge, and was dismissed. Mr. Smith said there was no emergency vehicle, and there was only one officer in the car. Mr. Smith told the judge to look at how many times that officer had pulled him over, in every single car he ever had. It started to border on harassment. Other than that, Mr. Smith had not had a lot of problems, except the last one in October. During an ice storm in Omaha, his SUV and another car were out of control on a curve. That was still in court because the insurance companies would not pay. Mr. Smith said the other driver got the same tickets he got, which was for driving too fast for conditions, not for reckless driving. They were both doing about 25 mph. Commissioner Moline asked if Mr. Smith had a family or was married. Mr. Smith said he was not married, but had been with the same woman since 1994. He had seven kids, and took care of all of them. Commissioner Poskochil asked about the July 2000 charge, noted as Aobstruct administration of law.@ Mr. Smith said that happened in north Omaha. He had co-signed on a car for a friend. She let her boyfriend drive it, and he was gone for 3 weeks, so she reported it stolen. Mr. Smith saw the car on Hamilton Street at a red light, so he stopped an officer and told him that the car was reported stolen. The officer stopped the guy, and found out it was stolen. Mr. Smith called his friend, and she came over. Mr. Smith jumped on the hood of the car so the guy would not drive off. The guy gave the car back then and there. Mr. Smith and his friend had co-signed for the car, but everything the officer said was being addressed to her, a young white girl. When Mr. Smith asked why he was not included, he was told to shut up and sit down. Mr. Smith said it was his car, and that the officer needed to call another officer to handle the situation, because there were other people in the stolen car. The other officer who was called to the scene understood Mr. Smith=s position, but the first officer wrote him a ticket. The judge told Mr. Smith that, no matter what the situation, he had to handle it in another way. Mr. Smith said it got old, being a federal felon with no rights, and he could not vote or file complaints. Mr. Smith said there was nothing that could be done. Chairperson Gale said he did not know if it was that extreme. Mr. Smith said it was that extreme. He moved out of his neighborhood, because he was a known drug dealer.Commissioner Poskochil asked about the failures to appear, which Mr. Smith had not addressed. Mr. Smith said that, if a person was stopped, he could get 3 tickets from that one stop. If he did not show up or tried to change the date for a court appearance, he would get three failures to appear, one for each charge. Commissioner Poskochil asked how many times Mr. Smith did not go to court. Mr. Smith said he would not go without his attorney, and even if he showed up an hour late, it was still failure to appear. Commissioner Poskochil asked why Mr. Smith missed so many court dates. Mr. Smith said that, with all this stuff, there was no way to have that many failures to appear, because they would pick him up. He might have one failure to appear, but it was listed as many. If Patrick Dunn, Mr. Smith =s attorney, changed the court date, nothing was held against him. Mr. Smith said he was never detained or sentenced for failure to appear.Chairperson Gale said the Commission had run out of time, and had another person waiting. Obviously, Mr. Smith had lived in a world very different than the Commission =s world. Chairperson Gale said Mr. Smith had been involved in a lot of problems with the police department. Some may have been justified, some may not have been. Mr. Smith needed to work his way out of the spiral with the police department, and stop drawing their attention, which created stress and conflict. Mr. Smith had done his time, and it was not a violent crime, so that worked in his favor. However, Mr. Smith=s deep involvement in conflict with law enforcement would not allow public confidence in him or his profession. He would be handling the most major transaction in his client=s life. Chairperson Gale said the Commission had no duty to allow him to sit for the examination.Chairperson Gale said that if Mr. Smith came back in 6 months with a good record, the Commission would give him a chance. Chairperson Gale said Mr. Smith was too wrapped up in his involvement with the law. In six months, the Commission would want to see no more offenses. Chairperson Gale reiterated that the Commission did not owe him a chance to take the examination. The Commission would want a clean driving record and a higher level of confidence in him before they would be willing to let him sit. Commissioner Strand also noted that the Commission was out of time on Mr. Smith =s special appearance, and noted that the Commission had been discussing Mr. Smith=s legal history for 45 minutes. Based on that, Commissioner Strand did not have confidence in him. Mr. Smith did not have a clean record. Mr. Smith said he was in day care, nightclub, and restaurant businesses, which were all taken away from him due to liquor licenses, etc. Mr. Smith said he could work at McDonald=s, but that would not support 7 kids. He could go partners with someone, open a business, put equal money in it, and the partner would say he was just a headache to him when they tried to get a liquor license. Mr. Smith could show the Commission every business with which it happened.Commissioner Johnson said that Mr. Smith did not look like a convicted felon sitting there, he looked like an executive with the phone company. Commissioner Johnson concurred with the rest of the Commissioners, that Mr. Smith needed to clean up his act and come back. Commissioner Johnson said that the average real estate agent made $27,000 per year, and the perception that licensees could make tons of money really fast was wrong. Mr. Smith said he knew he was selling himself, and making it happen. Commissioner Moline said Mr. Smith needed to sell himself on paper to the Commission. Mr. Smith needed to bring in proof of all the charges and dismissals, to have an accurate record. Chairperson Gale said Mr. Smith could have his attorney analyze the record for the Commission and explain it. Commissioner Poskochil said Mr. Smith needed to tell the Commission who he was and what he was doing now. Commissioner Poskochil wanted him to give the Commission more history on him. Chairperson Gale said the Commission needed to finish this agenda item. It was the consensus of the Commission that Mr. Smith could come back in 6 months if he was still interested. May 28, 1:45 p.m. - Mark Gordon Zeller, Salesperson Applicant Director Tyrrell presented an exhibit which included correspondence regarding Mr. Zeller =s special appearance, Mr. Zeller=s salesperson application, and information regarding Mr. Zeller=s lawsuit and licensure history. A copy of said exhibit is attached to and made a part of these minutes. Mr. Zeller was present.Chairperson Gale reviewed the procedure for informal special appearances. Mr. Zeller said he was born and raised on a farm. His mom was a REALTOR 7, and his dad was a developer. He had been in construction, but now had a worn-out body which required several surgeries, so he was looking to do something less physical. He did not know if he would be selling real estate for others, but he wanted to buy and sell his own property, and wanted to be able to sell for others, if needed. He had an aspiration for doing appraisals, too. He had done construction all of his life, and had his own business. He used to do custom homes, and now just did small remodels. Mr. Zeller was trying to further his education.Commissioner Moline noted that Mr. Zeller was appearing before the Commission because of disciplinary action in Nevada, where his contractor =s license was revoked.Mr. Zeller said it was a pretty long story, and it all happened in Las Vegas. In Nevada, contractors have a bid limit, but can team up with a developer for a one-time raise of the bid limit. A developer represented himself as a big company. Mr. Zeller was going to be a qualified employee, not the primary person on the job. Mr. Zeller filled out the required paperwork, then was put off by the developer and piecemealed the job. Mr. Zeller first did a concrete slab, which was within his bid limit, and kept doing as the developer asked. Suddenly Mr. Zeller found himself in the middle of the job. Chairperson Gale asked Mr. Zeller if he felt he had committed any gross negligence regarding the job. Mr. Zeller said he knew it looked bad, but he was just guilty of making a bad business decision. The developer knew his financial position, and promised other jobs, which was a pretty big carrot. Mr. Zeller was too trusting. He started off within his bid limits, then was sucked into higher responsibility. The developer had even employed Mr. Zeller =s father as the job superintendent. The developer was running the job, and Mr. Zeller had no supervision. Mr. Zeller=s father had a heart attack, and Mr. Zeller stepped in for him, and found the situation was a mess. Mr. Zeller was constantly battling the developer, but Mr. Zeller was being blamed for delays, nonpayments, etc.Chairperson Gale asked if Mr. Zeller had formed a corporation. Mr. Zeller said no, he was a sole proprietor. Chairperson Gale asked if Mr. Zeller had gone through bankruptcy. Mr. Zeller said he set it up with an attorney, but did not go through with bankruptcy. Nobody pursued him because they knew it was not his job. Chairperson Gale asked about Mr. Zeller =s home inspection business. Mr. Zeller said he got certified in Las Vegas, but never quite got the business started, because he decided to move home. Mr. Zeller was thinking of starting it in Nebraska. Mr. Zeller never applied for a home inspection license, so it was not denied. Mr. Zeller could not find his training certificate from 4 years ago. Mr. Zeller said he was really knowledgeable on residential property, so he would like to get a real estate license, but he might end up doing home inspections. If he kept on as a contractor, it would be one-stop shopping - he could buy his own properties, fix them up, then rent or sell them. Mr. Zeller said he enjoyed construction, and it killed him to think of giving it up. He was only 42, and was having physical problems. Real estate was natural to him, and was easy for him in school. Mr. Zeller got more excited about the career change as he took the pre-license classes. He thought property management or appraisal was possible, and he was debating between them. He had the appraiser application, but he wanted to wait to see what happened with the Commission, because that would be a similar process. He planned to use the outcome of his special appearance in the appraiser application. Chairperson Gale asked for clarification that Mr. Zeller was still working full-time at construction right now. Mr. Zeller said yes.Commissioner Poskochil asked about the remaining money owed in Nevada. Mr. Zeller said there were about five companies on the list, all related to that job. Commissioner Poskochil asked if the contractors board found him responsible for the debts. Mr. Zeller said he did not go to the hearing, because he moved back to Nebraska. Mr. Zeller turned state =s evidence against the developer, and became good friends with the investigator, who did not say Mr. Zeller should really be there for the hearing. Mr. Zeller had just wanted to get away from there. Mr. Zeller said he was sure they wanted to get paid, but most of them understood he did not get paid for the job. Commissioner Poskochil noted there was about $44,000 owed to other businesses and the contractors board. Mr. Zeller said he had a lien on the job that was almost released, but there was nothing he could do, because he had sunk every dime into the job. Mr. Zeller said he got too personally involved, and even gave tours to teachers and kids from the school. He tried to do everything to get it done. The debt was in his name because his name was on the job.Commissioner Poskochil said that, from reading the reference notes, others felt Mr. Zeller had to have known what was going on, that he was very gullible, and that he did not pay attention to detail. Commissioner Poskochil was concerned, because real estate is a detailed profession, and Mr. Zeller would be acting for another person. Mr. Zeller said he could see where she (a reference) got that in a way, but he said he was almost Aanal@ about his work, keeping notes and calendars about the job. He was a perfectionist, but never used to like paperwork.After discussion, a motion was made by Moline and seconded by Wiebusch to allow Mr. Zeller to sit for the salesperson examination, and to have a license issued upon passing. Commissioner Poskochil asked if approval could be effective after receiving a clean criminal history background check, because he was not sure what was outstanding in Nevada. Director Tyrrell said he did not know what we could get from Nevada, but it would probably be even less than Nebraska would provide. Commissioner Poskochil noted that Mr. Zeller had $40,000 in debt, and had failed to show financial responsibility with other people =s money. There were a lot of things Commissioner Poskochil was not comfortable with, starting with the $40,000 owed to businesses plus $5000 owed to the contractors board; Mr. Zeller had made no restitution, and no attempt at restitution; he did not show up at his disciplinary hearing or have a representative there; he had shown pure negligence on behalf of other people; and he had made no attempt to try to clear it up.Chairperson Gale asked if Commissioner Poskochil wanted a criminal history background check and an investigation of the total amount owed, because a criminal history would not show civil judgements. Director Tyrrell noted that, under Nebraska law, the Commission could not require a criminal history background check of Mr. Zeller until April 21, 2004, because applications were good for one year. Filing an original application was the triggering mechanism for the new law. At this time, the Commission could not require a criminal history background check. Chairperson Gale said that if the Commission refused Mr. Zeller =s application, he would have to file a new one later, which would be subject to a criminal history background check if it was filed after the effective date of the new law.Commissioner Poskochil noted that licensees have financial responsibility for other people =s livelihood. All the findings were against Mr. Zeller. Commissioner Poskochil felt a responsibility to the community, and if the Commission allowed him to sit for a license and Mr. Zeller=s conduct continued, he must be responsible for other people=s money and for his actions.Mr. Zeller said he had sent all the information to Greg Welch, and asked him to reopen the case to clear his name. Commissioner Poskochil noted the revocation happened two years ago. Commissioner Moline was glad staff had talked to Mr. Zeller =s references. Even if all the things said today were true, it would have been cleared up if he had filed bankruptcy 3-4 years ago.Chairperson Gale said he was struggling with whether what happened was clear evidence of fraudulent behavior and misuse of money. If Mr. Zeller had a bond of performance and was unable to perform, or negligent, for reasons outside of his control, it was not the same issue, because the bonds had to pay off. In this case, the bonds had to cover the losses, and no one had brought judgments against him. Commissioner Poskochil said not that we know of. Chairperson Gale asked if the Commission wanted a record from Mr. Zeller =s home county regarding civil judgments, and his criminal records. Chairperson Gale said Deputy Director Mayrose needed to do additional checking of public information regarding civil judgments, and the Commission could sit in abeyance until that was done. Mr. Zeller said he did not know what was on his record. He had a lawyer, for the personal injury case on record, and the attorney handled everything for him.Commissioner Johnson said that Commissioner Poskochil brought up good points, but it was all from one construction project that went bad. If that was true, that was not as significant as a pattern of liens and problems from other jobs. This was a one-time big deal that went wrong. Mr. Zeller said the contractors board could give a record of complaints against him. There were maybe 3 complaints in 10 years, all from that job. Mr. Zeller said he was probably the only contractor with just 3 complaints, because there was always somebody unhappy. It was tough to be a contractor. Chairperson Gale asked Mr. Zeller if he would consent to a criminal history background check. Mr. Zeller said yes, and he was not in a big hurry, so he could wait for the outcome. Commissioner Poskochil thought that allowing Mr. Zeller to be licensed without further investigation would feel lax on the Commission =s part. If Mr. Zeller was willing to work with the Commission, they should take the time to check it out.Director Tyrrell asked for clarification regarding the investigation the Commission wanted staff to make, and asked if the Commission wanted an FBI a criminal history background check using fingerprints, plus a certified log of civil cases. Director Tyrrell said that only 2 or 3 of Nebraska counties would provide that, and it would probably be worse across state lines. Chairperson Gale thought the information could be obtained if Mr. Zeller =s attorney would work with staff. Director Tyrrell asked if the Commission would accept records acquired by Mr. Zeller=s attorney. Chairperson Gale said he trusted Deputy Director Mayrose to get information from Las Vegas authorities that would satisfy the Commission=s curiosity.Counsel Widger asked if the Commission wanted an NCIC check, or one from the Nevada state patrol. Chairperson Gale said the Commission would use whatever reliable record was available, and staff could decide how to get the best information available. The Commission wanted a criminal history background check. Director Tyrrell asked if one from York County would also be needed. Chairperson Gale said that staff knew more what was available than the Commission. Commissioner Strand noted that Mr. Zeller had a $40,000 potential liability because he left town. It did not look like good due diligence to issue a license when he skipped town. Commissioner Strand said he thought Mr. Zeller was a straightforward guy, but the Commission needed more information. Commissioner Wiebusch said she would vote against the motion she seconded, unless it was changed. Both the mover and the seconder withdrew the motion. Commissioner Strand asked what the Commission would ask staff to do before Mr. Zeller=s next appearance. Chairperson Gale said that, by consensus, he would work with staff to determine the best routes to obtain the best information on civil judgments and a criminal history background check. After further investigation, Mr. Zeller would reappear before the Commission. Commissioner Strand said that, if no further information was obtained, he did not want to make Mr. Zeller come back. Director Tyrrell said that Chairperson Gale and Deputy Director Mayrose could work on civil and criminal history background checks, then Mr. Zeller could reappear when the additional information was presented. If nothing was found, staff would just report that nothing was found, and Mr. Zeller would not have to reappear. Chairperson Gale said staff would report back to Mr. Zeller whether to take the examination. Director Tyrrell asked for clarification that, if no further information was obtained, staff would decide whether to let him take the examination. Chairperson Gale said that decision would be made by the Chairperson. Commissioner Strand clarified that the Chairperson would approve Mr. Zeller to sit for examination, rather than make Mr. Zeller come back, if no additional information was obtained. That was the consensus of the Commission. May 28, 2:15 p.m. - Daniel Ross, Potential Salesperson Applicant Director Tyrrell presented an exhibit which included correspondence regarding Mr. Ross=s special appearance, and information regarding Mr. Ross=s criminal history. A copy of said exhibit is attached to and made a part of these minutes. Mr. Ross was present. Chairperson Gale reviewed the procedure for informal special appearances. Mr. Ross said he was from the western slope of Colorado, and moved to Fremont in 1996. He got an associates degree in computers, and worked at that until February. His father was in real estate for about 25 years, and Mr. Ross remembered him having more time during that than while he was an executive at a power company. Mr. Ross wanted to spend more time with his 18-month-old son. He had attended school at Randall. Near the end of the second class, the instructor talked about felonies. Less than 2 weeks before that, Mr. Ross had a background check done to become a foster parent, and found a felony that he thought was a misdemeanor. It was on the books in Omaha as a felony, and there was no way to change that unless he appealed, and he did not have the money for that. His record was pretty lengthy, and included driving under suspension, 60 days for expired in-transits, and no proof of insurance in car. Mr. Ross said he did not get an actual ticket, they just suspended his license, then he was pulled over twice and ticketed for driving under suspension. He had to drive a rental truck, but looking back now, he would have quit driving. He had a license since, which he got back after the suspension, but he was on probation for 6 months approximately five years ago. He got no further tickets, and after 6 months, he got a letter that said he was no longer on probation. He had nothing on his record for the past 5 years, except a speeding ticket in Pottawattamie County, which he paid. Chairperson Gale asked about the episode with the comforter. Mr. Ross said he was Christmas shopping, with his then-fiancee who was now his wife, and he was spending way more money than he had. There was a beautiful comforter, in with some that ranged from $600 to $80, and he took a price tag from a $300 comforter and put it on the $600 comforter. Mr. Ross said it was the stupidist decision for which he had ever been caught. When he went to court, the judge was very lenient, and gave him restitution and court costs. The actual price could have been over $600, so it was a felony. If Mr. Ross had a lawyer, he probably could have gotten it knocked down, but he just paid and got done with it. Commissioner Poskochil asked if Mr. Ross was currently employed. Mr. Ross said he was employed, doing paperwork and hiring for Papa John=s, until last February. He works at a golf course now, and babysits his son and foster son. Mr. Ross enjoyed the time off with his son immensely, but he was now ready to get back to work. After discussion, a motion was made by Poskochil and seconded by Shepard to allow Mr. Ross to sit for the salesperson examination after making proper application, and to have a license issued upon passing. After further discussion, the mover and seconder amended the motion to include the conditions that Mr. Ross notify his employing broker of his criminal history, that the employing broker verify that notification to the Commission in writing, and that, during his first year of licensure, Mr. Ross immediately notify Commission staff if he had any further contact with the law which could result in jail time. Commissioner Johnson noted that Mr. Ross had seen a couple other special appearances, and saw that the Commission did not take it lightly. The Commission was putting its trust in Mr. Ross, and he should not disappoint them. A vote was taken on the pending motion. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Approval of Consumer Information to be Available on Website Deputy Director Hoffman presented an exhibit which included text to appear on the Commission=s website which was directed at consumers, and information regarding potential links from the Commission=s website. 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 Strand to allow these links, and any others staff deem appropriate, from the Commission=s website. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, and Wiebusch voting aye, and with Gale not participating or voting, being temporarily absent and excused. Legislative Matters Director Tyrrell reported that the Governor vetoed the budget bill, and the veto was overridden by the Legislature. Director Tyrrell also reviewed other bills of interest to the Commission. No action was necessary on this report. Information Matters ARELLO Southern/Central Joint District Meeting - Little Rock, AR - June 5-7, 2003 Director Tyrrell reminded the Commissioners of the upcoming ARELLO Southern/Central Joint District Meeting. Commissioner Johnson, Commissioner Wiebusch, and Director Tyrrell planned to attend. No action was necessary on this report. Trust Account Examination Evaluation Report - First Quarter 2003 Director Tyrrell presented the Trust Account Examination Evaluation Report - First Quarter 2003. A copy of said report is attached to and made a part of these minutes. Director Tyrrell reported that comments were again very positive. He reviewed some of the comments received, and how the situations were handled. Due to one broker=s request, the examiners will now print out reports when there are no violations, so brokers have them for their records. No action was necessary on this report. Approval of Travel to ARELLO Advanced Investigator Seminar Director Tyrrell presented information regarding the costs of sending Deputy Director for Enforcement Mayrose to the ARELLO Advanced Investigator Seminar in Atlanta on July 23-26, 2003. Total cost was expected to be approximately $1555.50 plus hotel tax. After discussion, a motion was made by Moline and seconded by Wiebusch to approve the expenditures as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Future Meeting Dates July 16-17, 2003 - Staybridge Suites, Lincoln Recesses and Adjournment At 9:26 a.m. on May 28, Chairperson Gale declared a brief recess, and reconvened the meeting at 9:35 a.m. At 11:02 a.m. on May 28, Chairperson Gale declared a brief recess, and reconvened the meeting and hearing at 11:17 a.m. The hearing was adjourned at 12:35 p.m. At 12:38 p.m. on May 28, Chairperson Gale declared a recess for lunch, and reconvened the meeting at 1:10 p.m. At 2:52 p.m. on May 28, Chairperson Gale declared a brief recess, and reconvened the meeting at 3:08 p.m. Chairperson Gale was briefly excused from the meeting at 4:02 p.m., and passed the gavel to Acting Chairperson Wiebusch. Chairperson Gale rejoined the meeting at 4:05 p.m. Commissioner Moline was briefly excused from the meeting at 4:07 p.m., and rejoined the meeting at 4:08 p.m. At 4:15 p.m. on May 28, there being no further business to come before the Commission, a motion was made by Moline and seconded by Wiebusch that the meeting adjourn. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the May 28, 2003, meeting of the Nebraska Real Estate Commission were available for inspection on June 10, 2003, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska. Respectfully submitted, Guests Signing the Guest List |