Chairperson Gale convened a meeting of the Nebraska Real Estate Commission at 9:02 a.m. on May 24, 2007, 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 and Licensing Teresa Hoffman, Deputy Director for Enforcement Terry Mayrose, and Administrative Assistant Monica Wade. Neal Stenberg, Special Assistant Attorney General and Counsel to the Commission, was present for the Gena Rita Schriver and Patsy Lou Mundorf presentation and the Jack Raymond Nitz and Jay D. Nitz Hearing.

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 and a copy of the Open Meetings Act were available to the public on the counsel table in the meeting room, and that the procedures followed were in accordance with the Open Meetings Act. Chairperson Gale asked that guests sign the guest list.

Director Tyrrell noted that agenda items 8g, 10d, 10e, 16f and 17 had been added since the tentative agenda was mailed to the Commissioners.

The minutes of the Commission meeting held on March 29-30, 2007, were considered.

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

The cash fund balance as of March 31, 2007, was $862,123.62, which compared to a cash fund balance of $1,013,754.09 on March 31, 2006.

The cash fund balance as of April 30, 2007, was $808,722.73, which compared to a cash fund balance of $963,304.73 on April 30, 2006.

Commissioner Griess asked for clarification of the data processing expense. Director Tyrrell indicated that the original database company Iowa Foundation for Medical Care (IFMC) which designed, built and previously maintained the licensee database for the Commission discontinued offering this service. The Commission contracted with the Nebraska Information Management Services to provide maintenance and updates to the licensee database which is billed, as work is necessary, on an hourly basis rather than at a flat yearly rate, as it was previously with IFMC. Director Tyrrell noted that there were no additional expenses expected for the current fiscal year.

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

Director Tyrrell presented a specialized registrations report which included the time-share registrations for Bluegreen Vacation Club and Villas at Regal Palms. A copy of said report 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 report as presented. Motion carried with Bohrer, Grady, Griess, Leisey, Poskochil, Shepard and Gale voting aye.

Deputy Director Hoffman presented for ratification the Nonresident 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.

Examination Reports - March and April

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

Commissioner Grady asked if the Commission had received telephone calls from broker applicants regarding the new format for the broker examination. Deputy Director Hoffman indicated that the Commission had not received such inquiries. However, the new format would be explained in the Commission Comment Newsletter and would be demonstrated at the Instructor Development Workshop.

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 Temporary Pre-License Education Instructor Approval Report, a copy of which is attached to and made a part of these minutes.

Commissioner Griess asked for clarification of the required criteria for a permanent pre-license education instructor versus a temporary pre-license education instructor. Deputy Director Hoffman indicated that the school would have to show hardship in retaining an instructor and the identified instructor would have to be near completion of requirements. In this circumstance, the instructor had real estate experience and some education, but had not yet received a designation.

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.

Chairperson Gale asked if the Nebraska Investment Finance Authority (NIFA) had previously offered courses approved by the Commission. Deputy Director Hoffman indicated that at least once a year a seminar had been offered by NIFA and approved by the Commission.

Deputy Director Hoffman presented an exhibit regarding a Continuing Education Activity Significant Change, a copy of which is attached to and made a part of these minutes.

After review, a motion was made by Griess and seconded by Shepard to ratify the four reports. Motion carried with Bohrer, Grady, Griess, Leisey, Poskochil, Shepard and Gale voting aye.

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.

Deputy Director Hoffman presented an exhibit regarding the Passing Criteria for Examinations, a copy of which is attached to and made a part of these minutes.

Deputy Director Hoffman indicated that the new score report for the salesperson examinations would be similar to the score report currently being used. However, the language at the bottom of the score report had been improved to give better guidance on how the applicant should proceed.

Deputy Director Hoffman indicated that the new broker examination score report would be on two separate pages, page one would be the broker multiple-choice portion score report and page two would be the broker simulation portion score report. Deputy Director Hoffman also indicated that the new broker multiple-choice portion score report would not lose any information which is on the current score report. It would still be broken down by topic areas as on the current report. The applicant would still have to receive an overall 75% on the multiple-choice portion in order to pass that portion. The broker simulation portion score report would measure decision making (DM) and information gathering (IG) skills broken down by topic areas. The applicant would need to meet or exceed the overall minimum performance level (MPL) score on both the DM and IG sections in order to pass the simulation portion. The applicant would need to pass both the multiple-choice portion and the simulation portion at the same sitting to pass the total broker examination.

Commissioner Griess asked Deputy Director Hoffman if the simulation portion of the examination took into account varying degrees of skill in decision making and information gathering. Deputy Director Hoffman explained that when an applicant went through the simulation questions, some questions indicated that they needed to choose all appropriate answers and some questions indicated that the applicant could only choose one answer. More points were given for the best decision made, fewer points were given for the answers which were not the best decisions, and no points or negative points were given for bad decisions. Deputy Director Hoffman indicated that Applied Measurement Professionals (AMP) had conducted studies in Georgia and felt that the Commission could feel confident in adopting their scoring criteria. Director Tyrrell indicated that AMP was required to make certain the examination met certain measurement standards regarding reliability and validity.

Chairperson Gale indicated that across State Government, efforts were being made to eliminate social security numbers and information that could be used for identity theft, and asked Deputy Director Hoffman if any of the personal information could be eliminated from the score reports. Deputy Director Hoffman indicated that due to the nature of the examination and the importance of the correct person taking and passing the examination, the security had been addressed in the AMP contract proposal and the information provided on the score reports was protected by the Family Rights and Privacy Act. Chairperson Gale asked if the score reports were available on the internet or if they were a paper report only. Deputy Director Hoffman indicated that with regard to Commission records the score reports were only provided on paper and were not located on the internet. Chairperson Gale asked if AMP sold or shared this information with other States. Deputy Director Hoffman indicated that the information was not sold or shared by AMP. However, a passing list was provided to the Commission by AMP which did not contain dates of birth or social security numbers.

No action was necessary on this report.

Deputy Director Hoffman presented an exhibit regarding the anticipated examination reports on the new broker examinations which the Commission reviewed at its meetings. A copy of the exhibit 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:

Deputy Director Mayrose presented a Stipulation and Consent Order in the matter of Complaint 2006-050, Emilio Zuniga vs. Margaret Theresa Maloney and Tracy Gayle Curtis. A copy of said Order is attached to and made a part of these minutes.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Ms. Maloney and Ms. Curtis. The Order specified a censure for Ms. Maloney plus three hours of additional continuing education in the area of license law to be completed within 180 days of the date of the Order. The Order specified a censure for Ms. Curtis plus six hours of additional continuing education, with three hours being in the area of agency, and three hours in the area of contracts, to be completed within 180 days of the date of the Order.

Chairperson Gale was excused momentarily during this matter and upon returning Commissioner Shepard continued to be Acting Chairperson.

Deputy Director Mayrose presented a Stipulation and Consent Order in the matter of Complaint 2006-065, Neal R. Straight vs. Jeanene Elsie Roth. A copy of said Order is attached to and made a part of these minutes.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Ms. Roth. The Order specified a censure plus six hours of additional continuing education, with three hours being in the area of license law, and three hours in the area of agency, to be completed within 180 days of the date of the Order.

Deputy Director Mayrose presented a Stipulation and Consent Order in the matter of Complaint 2006-074, Robin T. Schmid, Jeffrey Beaudette and Melissa Larson vs. Keith Eugene Morris. A copy of said Order is attached to and made a part of these minutes.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Morris. The Order specified a censure plus three hours of additional continuing education in the area of ethics to be completed within 180 days of the date of the Order.

Commissioner Gale felt that the punishment was too easy. Commissioner Griess felt that it was a light punishment since Mr. Morris had admitted fault. Director Tyrrell indicated that Mr. Morris= admissions were made in order to settle and that these admissions could not be used should this matter be set for hearing. Commissioner Grady clarified that should Mr. Morris not accept an amended Order, then the facts would not be usable in a hearing setting. Director Tyrrell explained that the admissions could not be used if the Respondent would not accept an amended Order.

Deputy Director Mayrose presented a Stipulation and Consent Order in the matter of Complaint 2006-064, Ronald S. Kopiasz vs. Gustavo A. Buenrostro. A copy of said Order is attached to and made a part of these minutes.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Buenrostro. The Order specified a 60-day suspension plus six hours of additional continuing education, with three hours being in the area of agency, and three hours in the area of ethics, to be completed within 180 days of the date of the Order.

After discussion, a motion was made by Gale and seconded by Grady to decline the proposed Stipulation and Consent Order and amend the Order to specify a three-year suspension plus six hours of additional continuing education in the area of ethics.

After further discussion, a friendly amendment was made by Commissioner Gale, the mover, to change three of the additional six continuing education hours to be in the area of agency rather than ethics. The friendly amendment was accepted by the second, Commissioner Grady.

Deputy Director Mayrose noted that Stipulation and Consent Order 2006-068 is the same Respondent.

A friendly amendment was offered by the second, Commissioner Grady, to change the three-year suspension to a three-year suspension with one year served on suspension and two years served on probation plus six hours of additional continuing education, with three hours being in the area of ethics, and three hours in the area of agency. The friendly amendment was accepted by the mover, Commissioner Gale.

The motion as amended carried with Gale, Grady, Griess, Leisey and Shepard voting aye, with Bohrer and Poskochil not participating or voting, being absent and excused.

Deputy Director Mayrose presented a Joint Stipulation and Consent Order in the matter of Complaint 2006-068, Raymond M. Zendejas vs. Gustavo A. Buenrostro and Angel Ramon Loza. A copy of said Order is attached to and made a part of these minutes.

Deputy Director Mayrose reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Buenrostro. The Order specified a 120-day suspension followed by a 180 days of probation for Mr. Buenrostro plus six hours of additional continuing education, with three hours being in the area of trust accounts, and three hours in the area of license law, to be completed within 180 days of the date of the Order. The suspension and probation periods to follow immediately on the termination of the 60-day suspension set forth in the proposed Order in Complaint 2006-064 which had been amended.

The Order specified a 90-day suspension, followed by 90 days of probation for Mr. Loza plus six hours of additional continuing education, with three hours being in the area of agency, and three hours in the area of license law. However, Mr. Loza could not be contacted, therefore, staff was unable to get the Order signed and was not recommending going forward with this Stipulation as it applied to Mr. Loza.

Acting Chairperson Shepard asked if this Order could be held to see if Mr. Buenrostro would sign Order 2006-064 first. Director Tyrrell indicated that the Order should be denied rather than held. Commissioner Leisey asked if a Respondent could approve one Order and reject another Order. Director Tyrrell indicated that Mr. Buenrostro could accept one Order and reject the other Order.

A motion was made by Gale and seconded by Griess to reject Stipulation and Consent Order 2006-068.

Motion carried with Gale, Grady, Griess, Leisey and Shepard voting aye, with Bohrer and Poskochil not participating or voting, being absent and excused.

The Hearing regarding Complaint 2006-057, Scott Wircenske vs. Gena Rita Schriver and Patsy Lou Mundorf had been continued.

Counsel Stenberg indicated that he had received a letter from Mr. Wircenske requesting dismissal of his Complaint, a copy of which was distributed to the Commissioners. Counsel Stenberg explained the circumstances of the complaint and indicated that the parties had entered into a settlement agreement and within the terms of that agreement the Complainant had been reimbursed and received written apologies from both Respondents. Counsel Stenberg noted that a policy had been established within the Respondents= designated broker= s company which could have eliminated the basis of this complaint had it been instituted prior to the actions which led to the filing of the complaint.

Commissioner Griess asked Counsel Stenberg why a stipulation and consent order could not be considered rather than a dismissal since the Respondents had admitted fault and reached a settlement. Counsel Stenberg indicated that the Respondents had not admitted fault.

Chairperson Gale indicated that after reviewing the information handed out by Counsel Stenberg, that the written confirmation that the company had adopted such a policy seemed to set a higher bar within that company and accepting the proposal would benefit the Commission for future cases and he commended the company. Commissioners Griess and Leisey indicated that the company policy was a basic policy established by most companies. Commissioner Poskochil indicated that the policy was what real estate licensees do everyday.

A Joint Hearing was held on May 24, at 10:02 a.m., in the matter of Complaint 2006-032, Jon Schwartz and Terry Hurt vs. Jack Raymond Nitz and Jay D. Nitz and Complaint 2006-067, Commission vs. Jack Raymond Nitz and Jay D. Nitz. Neal Stenberg, Special Assistant Attorney General and Counsel to the Commission, appeared for the Complainant. Respondents Jack Raymond Nitz and Jay D. Nitz were present and represented by Counsels Richard D. Myers and Philip J. McGargill of Omaha.

Commissioner Shepard recused himself from participating in this matter, thereby nullifying any potential conflict of interest.

After opening statements, Counsels Stenberg and Meyers jointly offered 10 exhibits, all of which were received by Chairperson Gale.

Counsel Stenberg called Jack Raymond Nitz, Jay D. Nitz, Terry Hurt and Terry Mayrose.

At 12:05 p.m., Chairperson Gale declared a brief recess, and reconvened the Hearing at 12:20 p.m.

Counsel Stenberg offered 3 exhibits which were received in part by Chairperson Gale.

Counsel Myers called Jon Schwartz and Jay D. Nitz.

At 2:32 p.m., Chairperson Gale declared a recess of the Hearing in order for the Informal Special Appearance to take place and to break for lunch. The Hearing reconvened at 3:28 p.m.

Counsel Myers was excused for the remainder of the hearing and Counsel McGargill presented the closing argument.

After closing arguments had been presented, Chairperson Gale declared the Hearing concluded and gathered the original exhibits.

Prior to any motion the following occurred:

Commissioner Bohrer felt that Complaint 2006-032 was clear since the auction flyer provided by Jack Nitz & Associates included proper notices and if the acre size was the buying factor then the potential buyer should have investigated it themselves. Chairperson Gale indicated that the advertising appeared to be neglectful. Commissioner Bohrer indicated that since the auction flyer stated that there were 1.5 acres, more or less, then the consumer should investigate.

Chairperson Gale indicated that it was a small acreage and the consumer should have had a survey conducted and there should have been more notice to the consumer than a notice in the contract. Commissioner Griess indicated that the buyer had a duty to investigate on their own. However, the licensee had a duty to investigate prior to reporting that the seller= s word was factual.

Commissioner Poskochil indicated that he was not familiar with auctions since the disclosure used is usually A as is, where is@ . Commissioner Poskochil felt the buyer should have investigated prior to attending the auction and placing a bid.

Commissioner Grady expressed curiosity if the opening speech at the auction had been different from the statements on the auction flyer. Commissioner Grady also indicated that the buyer should have had a survey conducted if the cost was not too much. Commissioner Leisey indicated that a survey could have been done for a few hundred dollars. Commissioner Grady indicated that the legal description had not been given to anyone prior to the sale. The auction flyer did not say that there could be a discrepancy, other than the A plus or minus@ . However, thirty percent of a property was a big difference, since the real estate sale was based on land value and the building was a given commodity. Commissioner Grady also felt that there would have been less confusion if the exact number of acres were known. Especially, since the County Assessor= s office should have known how many acres there were. Commissioner Grady felt that, although the disclosure had been filled out to the best of the licensee= s ability, the licensee had been negligent if the acres being sold had not been investigated.

Commissioner Leisey indicated that the majority of people would have difficulty looking at a piece of ground and judging the amount there. In the event the licensee had reasonable doubt then he should have investigated. However, if the seller told the licensee that there was 1.5 acres, it would not be unreasonable to take the seller= s word for it. Commissioner Leisey felt that selling a house would be different than selling acres, since acres were harder to judge and, in this case, there had not been a reason to doubt what the seller had stated.

Commissioner Griess indicated that there were places to check the information given by the seller and the licensee should have made an effort to confirm the information. Commissioner Leisey indicated that there had not been reasonable doubt given by the seller to indicate to the licensee that a surveyor should be hired. Commissioner Leisey did not feel that the Nitzs= actions had been intentional nor had they meant to misrepresent the size.

Chairperson Gale indicated that the statute could be interpreted in two ways which were contrary to each other. Chairperson Gale interpreted the law to read that if an incorrect statement had been made by the seller, the licensee should verify the statement, since once the licensee repeated the statement, it would become the licensee= s statement and the licensee had a higher level of responsibility. If the licensee was going to repeat the statement, then he/she had better check it out.

Commissioner Griess referred to a previous complaint and indicated that the Commission said that an agent should not assume that what the seller had told the licensee was correct and all of the Commissioners had said that was the standard. Commissioner Leisey asked that if a seller had said a new roof had been put on three years ago, when actually a new roof had been put on ten years ago, would the licensee have to verify that? Chairperson Gale indicated that it should be attributed to the seller. Commissioner Leisey felt that the licensee had the responsibility to verify information given by seller, if the licensee had an inclination that information was incorrect. Commissioner Leisey noted that licensees were just the messengers.

Chairperson Gale indicated that this was an irregular tract and the percentage of difference was significant. Commissioner Leisey asked, when selling commercial properties, was a seller property condition disclosure statement was required? Director Tyrrell indicated that it was not required. Commissioner Leisey indicated that in commercial properties, the buyers are typically more educated or represented by an attorney. In this case, it seemed reasonable that the acres were correct. He did not believe licensees had to investigate everything a seller said. Chairperson Gale noted that a licensee should check into issues that were reasonable and not impossible to check.

Commissioner Grady indicated that there were three issues: it was not intentional; it was substantial; and it was negligent. Commissioner Grady indicated that it was negligent of the licensee not to obtain the copy of the plat for approximately fifty cents. Commissioner Grady indicated that the Nitzs= had the description and should have given it to the consumers. Commissioner Grady also felt that there was thirty percent less land sold then indicated on the auction flyer.

Chairperson Gale indicated that when a licensee held an auction, some may learn about the property early or some over lunch, as in this situation. The buyer does not always have time to check all of the facts. There was more obligation on the licensee to have what was needed for those who bid without much information. The buyers were relying on the advertising and representations made. Commissioner Grady indicated that for quantifiable things, thirty percent was a huge difference and a seller cannot always be relied upon. Therefore, it was the responsibility of the licensee. Commissioner Grady also felt that thirty percent was more than just the A plus or minus@ as indicated in the auction flyer.

Commissioner Poskochil indicated that the auction flyer had no disclosures such as A as is or where is@ , or A seller states@ or any terminology like that. Commissioner Grady noted that the auction flyer did not say that a survey was available. Commissioner Poskochil also indicated that the auction flyer did not state that the potential buyer could investigate the size or that the land size could not be relied upon. Therefore, a disclaimer should have been included.

Chairperson Gale asked if the potential buyer could have done a title search or found records on file. Commissioner Poskochil indicated that perhaps a title search could have been done prior to the auction. However, these buyers did not know they would be purchasing the property prior to the auction. Commissioner Griess indicated that the day of the auction the seller had handed out to some people an A Environmental Site Assessment Report@ which had not been received by the buyers until after the sale. Chairperson Gale indicated that the seller did not reveal that the A Environmental Site Assessment Report@ was available prior to the auction. Commissioner Poskochil indicated that the auction flyer noted to contact the auctioneer if the buyer wanted more information. However, these buyers arrived when the auction was in progress.

Commissioner Poskochil felt a distinction should be made between penalties for Jack Nitz and Jay Nitz since Jay provided the information during the auction and Jack was the A ringman@ . Chairperson Gale agreed.

A motion was made by Commissioner Grady to find in Complaint 2006-032, that Jack Nitz and Jay Nitz violated Neb. Rev. Stat. ' 81-885.24(22) and 81-885.24(29). The motion died for lack of a second.

A motion was made by Griess and seconded by Poskochil in Complaint 2006-032, that Jack and Jay Nitz violated Neb. Rev. Stat. ' 81-885.24(29). Motion carried with Bohrer, Grady, Griess, Leisey, Poskochil and Gale voting aye, with Shepard not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.

The discussion then focused on Complaint 2006-067. Commissioner Griess felt that subagency was confusing to the Respondents and did not understand why the businesses had been set up the way they were. However, it was obvious that a subagency agreement should have been entered into. Commissioner Griess indicated that Jack Nitz= s Agency Policy had been written, but the subagency agreement between he and Jay needed to be written as well. Chairperson Gale noted that since the father and son were in the same business, the issue became complicated since they were officers of one corporation and tried to find a way to exist without formalities of agreements. Chairperson Gale also noted that Jay Nitz did not receive compensation on the deal. Chairperson Gale did not feel the relationship was a problem in terms of defrauding someone. However, there should have been clarity for the seller. Commissioner Grady felt that this was a technical matter and the public was not misled. Commissioner Griess indicated that Jay Nitz had a broker= s license under a different company name and noted that he was actually acting as a licensee for Jack Nitz & Associates. Commissioner Griess felt that since Jay= s license was with a different entity, he was acting as a subagent and did not have a subagency agreement. Commissioner Grady also felt that a subagency agreement should have been written, but felt that the subagency agreement had no effect on the outcome of the sale. It did not have a negative impact. Chairperson Gale indicated that it was a simple agreement that the law required and both brokers did not recognize the need to enter into it.

A motion was made by Griess and seconded by Bohrer to find in Complaint 2006-067, that Jack Nitz and Jay Nitz had violated Neb. Rev. Stat. ' 81-885.24(29). Motion carried with Bohrer, Grady, Griess, Leisey, Poskochil and Gale voting aye, with Shepard not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.

Chairperson Gale opened the past disciplinary action envelope. It showed no prior disciplinary action against either Respondent.

The Commissioners then discussed the penalty to be assessed.

Chairperson Gale felt that a suitable punishment would be a censure of Jack and Jay Nitz= s license and three hours of continuing education in the area of advertising. Commissioner Griess felt the area of education should be focused on disclosures.

Chairperson Gale felt that the Complaints should have the penalty assessed separately, therefore, discussion was focused on Complaint 2006-032. Commissioner Poskochil felt that the punishment would be equal for both Jack and Jay Nitz. Commissioner Griess felt that the punishment might be different for both, but they both needed to have a punishment assessed. Commissioner Griess felt that they both should receive a censure of their license and three additional hours of continuing education.

Chairperson Gale then asked the Commissioners to decide the penalty for Complaint 2006-067. Commissioner Grady felt that any penalty given for Complaint 2006-067 should be against Jack Nitz. Commissioner Grady felt that the subagency agreement issue had progressed over a period of time. However, they should have known better. Commissioner Griess felt that neither Respondent intended to do something wrong, but both needed to be educated on this subject and both should complete education as determined by staff. Chairperson Gale agreed that Jack and Jay Nitz did not appear to be harming anyone. However, they had not entered into a subagency agreement as required by law. Chairperson Gale also felt that this Hearing was as good as any continuing education course since the Respondents should have heard the message loud and clear. Commissioner Poskochil felt there had been some confusion on the part of both Jack and Jay Nitz. They thought they were complying with the law. Commissioner Grady felt that if they both received a censure this might not occur in the future. Commissioner Griess felt that was not acceptable since they were already censured in the penalty phase of Complaint 2006-032. Chairperson Gale indicated that the Commission could reconsider the former penalty motion and replace it with a new motion.

A motion was made by Leisey and seconded by Poskochil to reconsider the penalty motion made for Complaint 2006-032. Motion carried with Bohrer, Grady, Griess, Leisey, Poskochil and Gale voting aye, with Shepard not participating or voting, having recused himself, thereby nullifying any potential conflict of interest.

With the consent of the Respondents, Chairperson Gale directed Counsel Stenberg to prepare the Order.

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.

Chairperson Gale announced that all exhibits related to this hearing would be retained in the Commission office.

The Hearing was adjourned at 5:09 p.m.

Director Tyrrell presented an exhibit which included correspondence regarding Mr. Smith= s special appearance, a letter from Mr. Smith regarding the current status of his title insurance license, e-mail correspondence between the Commission and Janette Adair of the Department of Insurance, a copy of Mr. Smith= s Nebraska Motor Vehicle Record and information regarding Mr. Smith= s previous special appearance. 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 indicated that since his special appearance approximately six months ago, he had wrapped up all business with Liberty Title, and left Missouri River Title Company to go into mortgage lending. Mr. Smith indicated that, even though the experience had helped, he felt mortgage lending was not his passion and he was continuing to pursue a real estate salesperson= s license. Mr. Smith felt disappointed after his previous special appearance, but understood why the Commission required more time to pass. The additional time gave him a chance to talk with the Department of Insurance regarding his title insurance license, which he had decided to retain.

Chairperson Gale indicated that Mr. Smith had three DUI= s over a short period of time. However, the last DUI was in December of 1994 and asked Mr. Smith if he had received a fifteen-year driver= s license suspension. Mr. Smith indicated that the judge had suspended his driver= s license for five years. He received it back after only three years and then received probation. Mr. Smith felt it took that to sober him up. He had his last drink in 1994.

Chairperson Gale asked if he was still attending Alcoholics Anonymous and if he received additional treatment. Mr. Smith indicated that since the birth of his daughter in 1995, the urge to drink left and never came back.

Chairperson Gale asked if the title insurance license was threatened or suspended due to the shortage in the trust account. Mr. Smith indicated that the title company had found the shortage as he had indicated at the previous appearance. Chairperson Gale asked if Mr. Smith had any complaints filed against him with the Department of Insurance. Mr. Smith explained that he had only had one complaint filed by a consumer regarding a special assessment, and the Department of Insurance had been satisfied with his response to it.

Commissioner Grady indicated that at Mr. Smith= s last special appearance there had been a large volume of outstanding checks and asked Mr. Smith to give an update of the status of those checks, along with anything he had left undone. Mr. Smith indicated that there had been $33,000.00 in outstanding checks and the Department of Insurance had been satisfied with the trust account reconciliation and he did not believe anything else was pending.

Deferred by the Commission to the June Meeting.

Deferred by the Commission to the June Meeting.

Deferred by the Commission to the June Meeting.

Deferred by the Commission to the June Meeting.

Deferred by the Commission to the June Meeting.

Deferred by the Commission to the June Meeting.

Deferred by the Commission to the June Meeting.

Deferred by the Commission to the June Meeting.

Deferred by the Commission to the June Meeting.

Director Tyrrell reported that he and Dick Williams, from Williams Underwriting Group, Inc., had discussed holding a series of errors and omissions insurance workshops across the State in September or October. The workshops would be half-day sessions at various locations. The only cost to the Commission would be room rentals and staff travel expense. Mr. Williams proposed giving an update of the errors and omissions program and economic trends and forecasts.

Commissioner Griess indicated that it would be good for the Commission to go across the State and provide some education. Commissioner Grady concurred.

June 28-29, 2007 - Settle Inn & Suites, Lincoln
August 23-24, 2007 - Staybridge Suites, Lincoln

At 9:32 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 9:36 a.m.

At 9:56 a.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 10:02 a.m.

At 12:05 p.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 12:20 p.m.

At 2:32 p.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 2:36 p.m.

At 3:00 p.m., Chairperson Gale declared a recess for lunch, and reconvened the meeting at 3:28 p.m.

Commissioners Poskochil and Bohrer were excused from the meeting at 5:11 p.m.

At 5:11 p.m., Chairperson Gale declared a brief recess, and reconvened the meeting at 5:25 p.m.

I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing minutes of the May 24, 2007, meeting of the Nebraska Real Estate Commission were available for inspection on June 7, 2007, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska.

Respectfully submitted,
Les Tyrrell
Director