NEBRASKA REAL ESTATE COMMISSION

Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:03 a.m. on January 18, 2006, 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 Monica Wade. Neal Stenberg, Special Assistant Attorney General was present for the hearing. Abbie Widger, Special Assistant Attorney General, was present for the Zitek appeal matter.

Chairperson Gale conducted a swearing-in ceremony for recently-appointed Commissioner Bruce Bohrer, presented him with his Commission pin, and welcomed him to the Commission.

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 a 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 Agenda item 9a had become time specific; Agenda item 12b had been changed to January 18 at 2:30 p.m.; and Agenda items 18g and 20 had been added since the Tentative Agenda was mailed to the Commissioners.

After review of the Final Agenda, a motion was made by Poskochil and seconded by Griess to adopt the Final Agenda as presented. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

The minutes of the Commission meeting held on November 16, 2005, were considered.

After review, a motion was made by Griess and seconded by Shepard to approve the minutes as presented. Motion carried with Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye, and with Bohrer not voting having not been in attendance at the November Meeting.

Director Tyrrell presented the Receipts and Expenditures Reports for November and December. Copies of said reports are attached to and made a part of these minutes. Director Tyrrell noted that an explanation page was included with each report.

The cash fund balance as of November 30, 2005, was $947,581.78, which compared to a cash fund balance of $952,790.65 on November 30, 2004.

The cash fund balance as of December 31, 2005, was $1,087,668.03, which compared to a cash fund balance of $1,080,618.36 on December 31, 2004.

Commissioner Poskochil asked if the December report reflected the majority of renewals. Director Tyrrell indicated that the report would have included over ninety percent of the total number of anticipated by June 30. Commissioner Johnson noted that the legal expenses were up by fifty percent. Chairperson Gale indicated that it was still below the budgeted amount.

After discussion, a motion was made by Shepard and seconded by Johnson to file the November and December Receipts and Expenditures Reports for audit. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

Director Tyrrell presented the Renewal Report. Copy of said report is attached to and made a part of these minutes.

Commissioner Poskochil asked what the highest number of licensees had been. Director Tyrrell indicated that prior to the late 1980's there were approximately 10,000 licensees. However, when the laws were passed requiring continuing education and errors and omissions insurance there was approximately a thirty percent drop in licensees. Since then the total number of licensees has been approximately 7,000.

No action was necessary on this report.

Deficit Budget Request

Director Tyrrell discussed with the Commission that the Deficit Budget Request that was originally filed for $22,500, would most likely be reduced to $10,000.

No action was necessary on this report.

Specialized Registrations

Director Tyrrell presented a Time-Share Registration for Tahiti Village Vacation Club. A copy of said report is attached to and made a part of these minutes.

After review, a motion was made by Poskochil and seconded by Grady to approve the project for registration as presented. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

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 Grady and seconded by Johnson to ratify issuance of the licenses as set forth in the report. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

Deputy Director Hoffman presented for ratification the November and December Examination Reports, copies of which are attached to and made a part of these minutes.

After review, a motion was made by Poskochil and seconded by Griess to ratify the November and December Examination Reports for the purpose of issuing licenses. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

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.

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.

Commissioner Poskochil inquired as to where an instructor would get the information required to offer a course on methamphetamine. Deputy Director Hoffman indicated that references and resources are noted in the application and that in this case, law enforcement was a source of information. Furthermore, since the subject of this course was environmental hazards, it would receive approval as designated subject matter. Commissioner Poskochil suggested that it could be a liability to real estate licensees should they know too much. Deputy Director Hoffman indicated that these are personal safety issues that licensees should know. Commissioner Johnson indicated that ARELLO has conducted seminars on this matter which have been very informative.

After review, a motion was made by Poskochil and seconded by Grady to ratify the reports. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, and Shepard voting aye, and with Gale not participating or voting, being absent and excused.

Deputy Director Hoffman presented an exhibit regarding a continuing education activity rejection, a copy of which is attached to and made a part of these minutes.

No action was necessary on this report.

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:

Presentation of Stipulation and Consent Orders

There were no stipulation and consent orders presented at the meeting.

A hearing was held on January 18, at 9:34 a.m., in the matter of Complaint #2005-027,
Commission vs. John C. Clark and Complaint #2005-028, Commission vs. David M. Clark. Neal Stenberg, Special Assistant Attorney General and Counsel to the Commission, appeared for the Complainant. Respondents John C. Clark and David M. Clark were present and represented by Counsel Robert Otte of Lincoln.

Counsel Stenberg presented a motion to consolidate the two complaints, Complaint #2005-027 and 2005-028. Counsel Otte resisted the motion.

Based on the discussion by the Commissioners, Chairperson Gale ruled that the complaints would be consolidated for this Hearing.

After opening statements, Counsel Stenberg offered 6 exhibits, and Counsel Otte offered 1 exhibit, all of which were received by Chairperson Gale.

After closing arguments had been presented, Chairperson Gale declared the hearing concluded. The original exhibits were gathered together.

Discussion centered around the action of conducting unlicensed activity in Iowa and the advice, or lack thereof, from the designated broker to cease said actions; that such unlicensed practice should not be lightly considered; and the appearance of knowingly violating Iowa law.

Chairperson Gale directed the Commissioners when at the motion stage, to treat the respondents separately. After discussion, a motion was made by Shepard and seconded by Grady to find David M. Clark guilty of violating 81-885.24(22) and (29). Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

Chairperson Gale opened the past disciplinary actions envelope. It showed no prior disciplinary action. The Commissioners then discussed the penalty to be assessed.

Chairperson Gale indicated that he thought David Clark would not do this again. Commissioner Grady thought that David Clark should take 6 hours each of continuing education in law and ethics to be completed within 6 months, but it was not grounds for revocation, instead perhaps suspension and probation.

Commissioner Poskochil thought that probation was lenient and licensees should not practice unlicensed real estate activities in other states, therefore, 30 days of actual suspension and 11 months on probation would sound better.

Commissioner Poskochil pointed out that David Clark had the opportunity not to go back a second time once he was aware the property was in Iowa. Commissioner Griess referred to Exhibit 6 which was an email from David Clark that showed property listed in Council Bluffs, therefore, he must have had a plan.

Commissioner Grady felt that if he was advised correctly by John Clark the first time David Clark spoke with him, then David would not have gone back.

Commissioner Poskochil felt that even though John Clark advised David Clark incorrectly, a licensee should still know the laws, therefore, David Clark should be held accountable.

Chairperson Gale inquired as to what level a licensee can assist a broker, and to what extent can a broker sign-off on paper work, or when training a new licensee is it common practice to review and sign the work. Commissioner Johnson noted that unlicensed assistants cannot write contracts or show property.

Discussion was held on whether John Clark had committed the alleged violations.

Commissioner Grady felt that John Clark was uneducated on how things should be done, and believed that there was a greater harm done by John Clark than David Clark. Commissioner Shepard noted that John Clark had been licensed for a number of years with people under his employ. Commissioner Poskochil felt John Clark showed unworthiness. Commissioner Griess felt that because John Clark had the Iowa license, he signed off on the forms and it was wrong to supervise this way. Commissioner Bohrer felt that expedience overcame good judgement.

A motion was made by Shepard and seconded by Poskochil that John Clark was guilty of unworthiness under Neb. Rev. Stat. 81-885.24(29). Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

Chairperson Gale notified the Respondents that the costs incurred for the court reporter and any witness fees would be billed to the Respondents, as provided for in 305 NAC Chapter 4, and that the Respondents would have thirty days from the date of the order to reimburse the Commission for said costs.

With the consent of the Respondents, Chairperson Gale directed Counsel Stenberg 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 3:04 p.m.

Director Tyrrell indicated that this applicant was off probation and had served his sentence. Commission Grady noted that it would have been nice to have him attend the meeting. Director Tyrrell indicated that the guidelines provide the person an option to appear in person or by exhibit. There was discussion that Mr. Kolnick could be reconsidered in a couple of years if he had no further criminal contact with law enforcement and was able to provide some current character references.

After discussion, a motion was made by Poskochil and seconded by Shepard not to allow Mr. Kolnik to sit for examination or have a real estate license issued. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard and Gale voting aye.

Chairperson Gale reviewed the procedure for informal special appearances.

Mr. Antoniak informed the Commission of his background, he was a University of Omaha graduate who was on the wrestling team. He has been married for two years and has a son. Mr. Antoniak stated that he has always been interested in real estate and since the loss of his job he decided he would like to make it a career. He recently purchased a new house and became very interested in the processes involved.

Mr. Antoniak expressed the need to provide for his family, and could not see where he can be denied a license. He also indicated that he has been charged, but he does not have a felony conviction on his record at this time.

Chairperson Gale indicated that he could not discuss the facts about this case with him, but this appeared to be a unique situation, this could potentially be a highly publicized case, and would like more details after completion of the trial.

Commissioner Shepard asked if a decision had to be made or if the discussion could be tabled until this matter is resolved. Commissioner Johnson asked if Mr. Antoniak would be interested in taking the test and upon passing the test agree to keep the license on inactive status until the pending charges had been settled. Mr. Antoniak indicated that providing this opportunity does not help him provide for his family. Mr. Antoniak said he would have to think about it. Director Tyrrell noted upon proof of acquittal the license could be activated.

After discussion, a motion was made by Johnson and seconded by Griess, to allow Mr. Antoniak to sit for the salesperson examination after making proper application and to have a license issued upon passing, on the condition that a signed consent be furnished agreeing to keep the license on inactive status until conclusion of current proceeding, then return to the commission for a final decision or activation after a decision in the pending current action. Motion carried with Bohrer, Griess, Johnson, and Poskochil voting aye, and with Grady, Shepard and Gale voting nay.

Chairperson Gale reviewed the procedure for informal special appearances.

Mr. Russell informed the Commission that he is 35 years old, graduated from high school, and attended college at University of Nebraska-Kearney. He had a history in sales. He also had family who own restaurants/night clubs. He is currently a loan officer and married to real estate licensee with whom he would like to conduct real estate activities as a team.

Chairperson Gale asked Mr. Russell if he felt he had a drinking problem. Mr. Russell indicated that he did not feel he had a drinking problem.

Commissioner Johnson was concerned about the assault charge in 2002, and wished more time had passed without convictions.

Commissioner Poskochil asked if Mr. Russell had anger problems when he drank alcohol, and if he attended anger management classes or counseling for alcohol. Mr. Russell indicated he attended out patient alcohol counseling which he took without being ordered to. Mr. Russell indicated that he is not an angry person, now that he is 35 years old maturity has helped, and in the future he hopes to respond in the appropriate way.

Commissioner Bohrer thought Mr. Russell was forthright in his answers although he did have concerns about the convictions.

After discussion, a motion was made by Poskochil and seconded by Bohrer to allow Mr. Russell to sit for the salesperson examination after making proper application and to have a license issued upon passing. Motion carried with Bohrer, Griess, Poskochil, Shepard, and Gale voting aye, and with Grady and Johnson voting nay.

Chairperson Gale reviewed the procedure for informal special appearances.

Mr. Rogers stated his background was in car sales since the early 1990's and in accounting until 2004. He has two daughters and two grandchildren. Mr. Rogers grew up in South Dakota where he has a real estate license. He also has a real estate license in Iowa.

Mr. Rogers pointed out that he is no longer on probation. Chairperson Gale reviewed the documents that showed Mr. Rogers served time for controlled substance and was released from prison in 2001. Mr. Rogers assured that he completed drug treatment and had not used drugs since 1999.

Commissioner Bohrer reviewed the length of involvement which is approximately 22 years. Commissioner Bohrer asked Mr. Rogers what his recent activities were and what involvement he had with the community. Mr. Rogers indicated that he decided to do whatever it took so he would not be reincarcerated. Mr. Rogers began going to church with his daughter after being released from prison and enjoyed being part of a support group where he met a lady who he has dated for approximately four years. Mr. Rogers also noted that he has new friends from church and is no longer around the people he hung out with before. He also works a lot more. Mr. Rogers also stated he has no desire to drink or do drugs anymore.

After discussion, a motion was made by Johnson and seconded by Poskochil to allow Mr. Rogers to receive a salesperson license under license recognition after making proper application. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

Deputy Director for Enforcement Mayrose said the schedule was working well, and was operating on approximately an 11 to 13-month cycle.

After discussion, a motion was made by Grady and seconded by Shepard to proceed under the current examination cycle. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, and Shepard voting aye, and with Gale not participating or voting, being absent and excused.

Deputy Director Mayrose presented an exhibit regarding the retention of canceled checks and deposit slips. A copy of said exhibit is attached to and made a part of these minutes.

The consensus of the Commission was to work with this matter as best we can and still maintain regulatory control.

Director Tyrrell presented an exhibit regarding the Attestation Report issued by the Auditor of Public Accounts. Also included was an Exhibit of proposed responses to the various exit interview items. A copy of said exhibit is attached to and made a part of these minutes.

Director Tyrrell discussed the use of a Consent Calendar with the Commission. Director Tyrrell spoke with the Missouri Real Estate Commission who recently started using the consent calendar. Director Tyrrell indicated that Missouri uses the consent calendar to enable the approval of a considerable number of letters which have to be approved at each meeting. Director Tyrrell saw no problems using a consent calendar, but needed to know which items the Commission would like to see on a consent agenda. Commissioner Poskochil asked what the process would be. Director Tyrrell noted an example would be taking items three through eight from the current agenda and approving or denying all with one motion. However, if there is a question on a item it would be pulled out and acted on individually. Commissioner Shepard stated that we would only be saving 10 or 15 minutes, and that there are usually questions asked on every item. Commissioner Poskochil indicated that if the consent agenda was used that questions might not get asked about an agenda item that should be.

It was the consensus of the Commission to not institute the use of a Consent Calendar at this time.

Deputy Director Hoffman presented an exhibit regarding the estimated costs of sending Commissioners and staff to regularly-attended ARELLO meetings in 2006. A copy of said exhibit is attached to and made a part of these minutes.

After discussion, a motion was made by Poskochil and seconded by Griess to approve the expenditures as presented for applicable Commissioners and staff to attend the meetings. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, and Shepard voting aye, and with Gale not participating or voting, being absent and excused.

Director Tyrrell presented an exhibit regarding the Builder\Developer Exemption to Estimated Closing Costs and Title 229, Chapter 5-003.11. A copy of said exhibit is attached to and made a part of these minutes.

After discussion, a motion was made by Shepard and seconded by Poskochil to approve the underlined language and schedule a rule hearing at a future meeting. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, and Shepard voting aye, and with Gale not participating or voting, being absent and excused.

Director Tyrrell presented exhibits consisting of legislative bills introduced in the 2006 Legislature. Director Tyrrell reviewed legislation of interest to the Commission.

LB 505 - Director Tyrrell reported that this bill to Change Age of Majority, was carried over from last year and would change the License Act to allow persons to acquire a license at the age of 18 instead of 19. Chairperson Gale indicated this is a trend across the county.

LB 660 - Director Tyrrell reported that a home inspector licensing act bill introduced last year is still pending in committee. Chairperson Gale indicated the lack of support for this bill therefore bill LB991 was introduced.

Commissioner Johnson noted the lack of complaints against the non-resident licensees shows this is not necessarily a problem. Commissioner Poskochil did not want to change the standard since there was no track record of complaints and violations. Commissioner Griess felt that as a teacher, practitioner and a broker that the Commission should enforce laws that relate to helping licensees learn unique laws and recognize that there have been problems. She felt that other states should require this as well since this is very important. Commissioner Grady asked if other states have wording like this in their reciprocal agreements. Director Tyrrell indicated that some states require applicants to take the State portion of the examination and others require courses to be taken. Commissioner Johnson indicated that 3 hours of continuing education should not be a big deal.

Director Tyrrell indicated that the Commission decided to remain neutral on the change proposed to the districts from which broker members are appointed. Commissioner Johnson expressed his desire that the Commission remain neutral. Commissioner Grady stated that the Commission would be losing some representation from the western part of the state. Through discussion the Commission directed Director Tyrrell to remain neutral on this issue when testifying.

LB 991 - Director Tyrrell reported this bill dealt with home inspector registration.

No additional action was necessary with regard to these matters.

At 12:41 p.m. on January 19, a motion was made by Griess and seconded by Bohrer to go into closed session for the purpose of discussing personnel matters. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard and Gale voting aye.

At 12:56 p.m. on January 19, a motion was made by Shepard and seconded by Johnson to go into open session. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard and Gale voting aye.

No action was taken when the Commission returned to open session.

ARELLO Mid-Year Meeting - April 6-8 in Jacksonville, FL

Director Tyrrell presented an exhibit regarding the ARELLO Mid-Year Meeting, which will be held April 6-8 in Jacksonville, FL. A copy of said exhibit is attached to and made a part of these minutes.

Director Tyrrell asked that Commissioners planning to attend fill out the registration form and send it to the Commission office, with a check for the guest registration, if applicable. Director Tyrrell reported that the deadline for hotel reservations is March 10, 2006.

No action was necessary on this report.

February 23, 2006 - Staybridge Suites, Lincoln

March 23-24, 2006 - Staybridge Suites, Lincoln

May 3-4, 2006 - Ramada Limited South, Lincoln

June 14-15, 2006 - Ramada Limited South, Lincoln

August 24-25, 2006 - Staybridge Suites, Lincoln

October 5-6, 2006 - Ramada Limited South, Lincoln

At 9:30 a.m. on January 18, Chairperson Gale declared a brief recess, and reconvened the meeting at 9:33 a.m.

At 9:42 a.m. on January 18, Chairperson Gale declared a brief recess, and reconvened the meeting at 9:44 a.m.

At 11:22 a.m. on January 18, Chairperson Gale declared a brief recess, and reconvened the meeting at 11:32 a.m.

At 12:55 p.m. on January 18, Chairperson Gale declared a recess for lunch, and reconvened the meeting at 1:35 p.m.

At 3:04 p.m. on January 18, Chairperson Gale declared a brief recess, and reconvened the meeting at 3:15 p.m.

At 4:06 p.m. on January 18. Chairperson Gale was excused from the Meeting for the remainder of the day.

At 5:04 p.m. on January 18, Acting Chairperson Johnson recessed the meeting for the day.

At 9:03 a.m. on January 19, Chairperson Gale reconvened the meeting.

At 10:24 a.m. on January 19, Chairperson Gale declared a brief recess, and reconvened the meeting at 10:30 a.m.

At 12:07 p.m. on January 19, Chairperson Gale declared a brief recess, and reconvened the meeting at 12:20 p.m.

At 2:30 p.m., there being no further business to come before the Commission, a motion was made by Shepard and seconded by Bohrer that the meeting adjourn. Motion carried with Bohrer, Grady, Griess, Johnson, Poskochil, Shepard, and Gale voting aye.

I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the January 18-19, 2006, meeting of the Nebraska Real Estate Commission were available for inspection on February 1, 2006, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,

Les Tyrrell
Director