House Bill 1368

AN ACT TO AMEND SECTION 73-35-10, MISSISSIPPI CODE OF 1972, TO REQUIRE THE MISSISSIPPI REAL ESTATE COMMISSION TO PROVIDE WRITTEN NOTICE TO A LICENSED REAL ESTATE BROKER OR SALESPERSON OR A NONRESIDENT LICENSEE OF A PENDING CHANGE TO THE PERSON'S LICENSE; TO AMEND SECTION 73-35-23, MISSISSIPPI CODE OF 1972, TO REVISE THE STANDARD OF PROOF IN COMMISSION AND ADMINISTRATIVE HEARINGS ON ALLEGED VIOLATIONS OF THE REAL ESTATE BROKERS LICENSE LAW FROM PREPONDERANCE OF THE EVIDENCE TO CLEAR AND CONVINCING; TO ESTABLISH TIME FRAMES FOR DISPOSITION OF COMPLAINTS AGAINST LICENSEES BEFORE THE MISSISSIPPI REAL ESTATE COMMISSION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 73-35-10, Mississippi Code of 1972, is amended as follows:

73-35-10. (1) (a) To qualify for a Mississippi real estate broker's license or a Mississippi resident license as a real estate salesperson, or a nonresident's license in Mississippi, an applicant must have successfully been cleared for licensure through an investigation that shall consist of a determination that the applicant does not possess a background which calls into question public trust, as set forth below in subsection (2), and verification that the prospective licensee is not guilty of or in violation of any statutory ground for denial of licensure as set forth in Section 73-35-21.

(b) To assist the commission in conducting its licensure investigation, from and after July 1, 2016, all applicants for a Mississippi real estate broker's license, or a Mississippi resident license as a real estate salesperson, or a nonresident's license in Mississippi, and all applicants for renewal of any real estate license shall undergo a fingerprint-based criminal history records check of the Mississippi central criminal database and the Federal Bureau of Investigation criminal history database. Each applicant shall submit a full set of the applicant's fingerprints in a form and manner prescribed by the commission, which shall be forwarded to the Mississippi Department of Public Safety (department) and the Federal Bureau of Investigation Identification Division for this purpose.

(c) Any and all state or national criminal history records information obtained by the commission that is not already a matter of public record shall be deemed nonpublic and confidential information restricted to the exclusive use of the commission, its members, officers, investigators, agents and attorneys in evaluating the applicant's eligibility or disqualification for licensure, and shall be exempt from the Mississippi Public Records Act of 1983. Except when introduced into evidence in a hearing before the commission to determine licensure, no such information or records related thereto shall, except with the written consent of the applicant or by order of a court of competent jurisdiction, be released or otherwise disclosed by the commission to any other person or agency.

(d) The commission shall provide to the department the fingerprints of the applicant, any additional information that may be required by the department, and a form signed by the applicant consenting to the check of the criminal records and to the use of the fingerprints and other identifying information required by the state or national repositories.

(e) The commission shall charge and collect from the applicant, in addition to all other applicable fees and costs, such amount as may be incurred by the commission in requesting and obtaining state and national criminal history records information on the applicant.

(2) (a) The commission must ensure that applicants for real estate licenses do not possess a background that could call into question public trust. An applicant found by the commission to possess a background which calls into question the applicant's ability to maintain public trust shall not be issued a real estate license.

(b) The commission shall not issue a real estate license if:

(i) The applicant has had a real estate license revoked in any governmental jurisdiction within the five-year period immediately preceding the date of the application;

(ii) The applicant has been convicted of, or pled guilty or nolo contendere to, a felony in a domestic or foreign court:

1. During the five-year period immediately preceding the date of the application for licensing; or

2. At any time preceding the date of the application, if such felony involved an act of fraud, dishonesty or a breach of trust, or money laundering.

(c) The commission shall adopt rules and regulations necessary to implement, administer and enforce the provisions of this section.

(d) The requirement of a criminal background check provided in this section shall not apply to persons who have held a broker's or salesperson's license in this state for at least twenty-five (25) years and who are older than seventy (70) years of age.

(3) The commission shall provide prior written notification to a licensee whose license, once issued, is subject to being amended, suspended, revoked or not renewed. The notice must be delivered to the licensee whose license will be affected and, if applicable, to their responsible broker, not less than five (5) business days before the effective date of the change. For purposes of this subsection, written notice must be delivered to the email address for the licensee and broker, if applicable, which is on file with the commission.

SECTION 2. Section 73-35-23, Mississippi Code of 1972, is amended as follows:

73-35-23. (1) The commission is * * *~~hereby~~ authorized and directed to take legal action against any violator of this chapter. Upon complaint initiated by the commission or filed with it, the licensee or any other person charged with a violation of this chapter shall be given fifteen (15) days' notice of the hearing upon the charges filed, together with notice of the option of appearing before the commission or an administrative hearing officer as provided in subsection (7) of this section, and a copy of the complaint. The applicant or licensee or other violator shall have an opportunity to be heard in person or by counsel, to offer testimony, and to examine witnesses appearing in connection with the complaint. Hearings shall be held at the offices of the Mississippi Real Estate Commission, or at the commission's sole discretion, at a place determined by the commission.

At such hearings, all witnesses shall be properly sworn and stenographic notes of the proceedings shall be taken and filed as a part of the record in the case. Any party to the proceedings shall be furnished with a copy of such stenographic notes upon payment to the commission of such fees as it shall prescribe, not exceeding, however, the actual cost to the commission. The * * *~~preponderance of evidence~~ clear and convincing standard of proof shall be used to examine factors during all hearings. The commission shall render a decision on any complaint and shall immediately notify the parties to the proceedings in writing of its ruling, order or decision.

(2) In addition to the authority granted to the commission as hereinabove set forth, the commission is hereby vested with the authority to bring injunctive proceedings in any appropriate forum against any violator or violators of this chapter, and all judges or courts now having the power to grant injunctions are specifically granted the power and jurisdiction to hear and dispose of such proceedings.

(3) The commission is * * *~~hereby~~ authorized and empowered to issue subpoenas for the attendance of witnesses and the production of books and papers. The process issued by the commission shall extend to all parts of the state, and such process shall be served by any person designated by the commission for such service. The person serving such process may receive such compensation as may be allowed by the commission, not to exceed the fee prescribed by law for similar services. All witnesses who are subpoenaed and who appear in any proceedings before the commission may receive the same fees and mileage as allowed by law, and all such fees shall be taxed as part of the costs in the case.

(4) Where in any proceeding before the commission any witness shall fail or refuse to attend upon subpoena issued by the commission, shall refuse to testify, or shall refuse to produce any books and papers the production of which is called for by the subpoena, the attendance of such witness and the giving of his testimony and the production of the books and papers shall be enforced by any court of competent jurisdiction of this state in the same manner as the attendance and testimony of witnesses in civil cases are enforced in the courts of this state.

(5) The commission may obtain legal counsel privately to represent it in proceedings when legal counsel is required.

(6) No commissioner, administrator, employee, investigator, representative or agent of the commission shall communicate with a licensee in connection with any preliminary or formal investigation associated with alleged violations of licensing law or regulations prior to the delivery of written notice to the licensee's responsible broker. Any licensee represented by legal counsel shall be entitled to communication through such legal counsel unless waived in writing by the licensee.

(7) The commission shall establish an administrative hearing option by July 1, 2022, which shall consist of administrative hearing officers designated by the Attorney General for the purpose of holding hearings, hearing evidence and rendering decisions on matters determined to be the subject of a hearing for a licensee or any other person charged with a violation of this chapter or affecting the license of any person coming under its jurisdiction, when the licensee or any other person charged with a violation of this chapter shall request, in writing, for the matter to be heard by the administrative hearing officer. Administrative hearing officers shall be staff attorneys employed by the Attorney General's office, but must not currently hold a license issued by the commission. The administrative hearing officers shall have the same powers and authority in conducting hearings and rendering decisions as granted to the commission in this section. Hearings before an administrative hearing officer shall be held in the City of Jackson, Mississippi, at a place, time and manner agreed upon by the commission and the hearing officer. The * * *~~preponderance of evidence~~ clear and convincing standard of proof shall be used to examine factors during all hearings. Any right of appeal available to a licensee or applicant for a license availing itself to the provisions hereof shall be preserved as if the matter had been heard and decided by the commission.

(8) Nothing in this section shall preclude the commission and a licensee from entering into an agreed order resolving a complaint prior to the hearing.

(9) (a) A complaint initiated by the commission or filed with the commission must be resolved by dismissal or issuance of a formal complaint within one hundred twenty (120) days of the date written notice is provided to a licensee and the licensee's responsible broker of commencement of an investigation pertaining to the complaint.

(b) A complaint initiated by the commission or filed with the commission must be resolved by final dismissal, final ruling on a formal complaint, or entry of agreed dispositional order within one (1) year of the date written notice is provided to a licensee and the licensee's responsible broker of commencement of an investigation pertaining to the complaint. The requirement for final disposition within one (1) year in this paragraph may not operate to deprive a licensee of the right to utilize the administrative hearing option provided for by law, and an administrative hearing must be scheduled to occur not later than sixty (60) days after the expiration of the one-year time limit in those cases where administrative hearing officers are not reasonably available to conduct hearings within the one-year period.

SECTION 3. This act shall take effect and be in force from and after July 1, 2025.