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NEBRASKA REAL ESTATE COMMISSION October 23, 2002 Staybridge Suites Staybridge Room Lincoln, NE Opening Chairperson Gale convened a Meeting of the Nebraska Real Estate Commission at 9:02 a.m. on October 23, 2002, 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 and Deputy Director for Enforcement Terry Mayrose. Abbie Widger, Special Assistant Attorney General and Counsel to the Commission, was present for the presentation of the stipulation and consent order, and discussion of the Consumer Guide to Buying and Selling Homes and the buyer advisory information from Arizona. Jim Titus, Special Assistant Attorney General and Counsel to the Commission, was present for the discussion of the proposed revisions to the Retirement Communities and Subdivisions Act. 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 a proposed Tentative Agenda accompanied the notification. Chairperson Gale pointed out to those in attendance that a APublic 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. Chairperson Gale noted that former Commissioner Joan Nigro was in attendance.Director Tyrrell noted that Agenda Item 12b had been moved from 11:00 a.m. to 12:30 p.m., and Agenda Item 13 had been continued, since the Tentative Agenda was mailed to the Commissioners. After review of the Final Agenda, a motion was made by Wiebusch and seconded by Moline to adopt the Final Agenda as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Minutes of September 25, 2002 The Minutes of the Commission Meeting held on September 25, 2002, were considered. After review, a motion was made by Moline and seconded by Shepard to approve the Minutes as presented. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Receipts and Expenditures Report for September Director Tyrrell presented the Receipts and Expenditures Report for September. A copy of said Report is attached to and made a part of these Minutes. Director Tyrrell noted the following: there was nothing unusual to report in Receipts. In Expenditures, Category 4272, Repair & Maintenance of Motor Vehicles, was for repairs to an examiner =s vehicle; Category 4414, Education Services, reflected the increase in applicants taking and re-taking the examination; and Category 4731, State-Owned Transportation, included bills for two months.The Cash Fund Balance as of September 30, 2002, was $458,847.14, which compared to a Cash Fund Balance of $376,922.97 on September 30, 2001. After discussion, a motion was made by Moline and seconded by Johnson to file the September Receipts and Expenditures Report 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 Director Tyrrell 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 Wiebusch and seconded by Shepard 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. Examination Report for September Director Tyrrell presented for ratification the Examination Report for September, 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 the September 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 Director Tyrrell 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 Director Tyrrell 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 Director Tyrrell 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 Moline to ratify the approvals as set forth in the Reports. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. 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: Complaint #2002-024 - Allan & Susan Arp vs. Richard Merle Wardell 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 Wiebusch that the Complaint be set for Hearing on the violations alleged in the Complaint. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. A motion was then made by Strand and seconded by Wiebusch that the Commission file a Complaint on its own motion, on the alleged violation of Neb. Rev. Stat. 76-2421(1). Motion carried with Poskochil, Strand, Wiebusch, and Gale voting aye, and with Johnson, Moline, and Shepard voting nay. Item B Complaint #2002-025 - Val Gottsch vs. Audrey Della Hancock 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 Poskochil that the Complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Item C Complaint #2002-026 - Helen E. Prouse vs. Mark Sylvester Dietz 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 Poskochil that the Complaint be dismissed without prejudice, and that the Respondent be notified that agency disclosure statements do not need to be completed in conjunction with the magazine sales. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Item D Complaint #2002-028 - Mike & Tonya Kerres vs. Leann Kaczmarek Yahnke 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 Strand that the Complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. A motion was then made by Wiebusch and seconded by Shepard that the Commission file a Complaint on its own motion, on the alleged violation of Neb. Rev. Stat. 76-2421(1). Motion failed with Shepard voting aye, and with Johnson, Moline, Poskochil, Strand, Wiebusch, and Gale voting nay. It was the consensus of the Commission that Director Tyrrell send the Respondent a letter of admonishment that agency must be properly disclosed at the first practicable opportunity. Item E Complaint #2002-029 - Thomas G. Widdowson vs. Joseph George Sobotka 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 Johnson and seconded by Strand that the Complaint be dismissed without prejudice. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Item F Complaint #2002-040 - Olan Kline vs. Clayton Patrick Gruhn 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. Presentation of Stipulation and Consent Orders Complaint #2001-032, Joseph Valenti vs. Michael Louis Riedmann and Thomas David Myers Prior to discussion of this matter, Commissioners Johnson and Shepard recused themselves, thereby nullifying any potential conflicts of interest. Counsel Widger presented a Stipulation and Consent Order in the matter of Complaint #2001-032, Joseph Valenti vs. Michael Louis Riedmann and Thomas David Myers. A copy of said Order is attached to and made a part of these Minutes. Mr. Riedmann and his attorney, John Liakos, were present. Also present was the Complainant, Joe Valenti, who read from a prepared statement, a copy of which is attached to and made a part of these Minutes, denoted as Exhibit 10a1. Mr. Valenti =s attorney, Doug Ruge, was also present.Counsel Widger noted that Mr. Myers was dismissed from the Complaint. Counsel Widger reviewed the circumstances involved and noted the provisions of the Order, which had been signed by Mr. Riedmann. The Order specified a censure of Mr. Riedmann =s broker=s license.After discussion, a motion was made by Moline and seconded by Strand to enter into the Order as presented. Motion carried with Moline, Poskochil, Strand, Wiebusch, and Gale voting aye, and with Johnson and Shepard not participating or voting, having recused themselves, thereby nullifying any potential conflicts of interest. Hearings Complaint #2001-032, Joseph Valenti vs. Michael Louis Riedmann and Thomas David Myers The Hearing in Complaint #2001-032, Joseph Valenti vs. Michael Louis Riedmann and Thomas David Myers, was continued pending presentation of a stipulation and consent order. Informal Special Appearances Lance Brown, Salesperson Applicant Director Tyrrell presented an Exhibit which included correspondence regarding Mr. Brown =s Special Appearance and a copy of the court order releasing Mr. Brown from probation. A copy of said Exhibit is attached to and made a part of these Minutes. Mr. Brown was present.Mr. Brown stated that he was released from probation, but that he continues to go to his counselor for peace of mind. The judge stated he had done everything as required. Commissioner Poskochil asked if Mr. Brown had heard the results from the property sale at Studio 14. Mr. Brown said he knew there had been an auction, but he had not received any papers on whether any additional money was owed. Commissioner Shepard asked if Mr. Brown had any recent arrests. Mr. Brown said no. Chairperson Gale expressed concern over Mr. Brown =s past incidents with alcohol. He said that the Commission was there to protect the public, and with Mr. Brown=s two DWIs and other alcohol-related problems, he did not want to license a possible alcoholic who would drive people around to look at houses. Chairperson Gale also expressed concern that Mr. Brown=s behavior had caused his liquor license to be jeopardized and eventually revoked, and that he did not learn his lesson from that. Mr. Brown said he gave up alcohol on April 4, 2002, and that he was getting himself back on track and would never drink again. Mr. Brown did not understand why the press was writing articles regarding his application for a real estate license. Mr. Brown said he had learned a lesson from his experiences with the Liquor Control Commission. In real estate, he would be on his own, and would have a broker overseeing his work and mentoring him, and making sure he did everything by the book. Mr. Brown said he understood how the Commissioners would see only the negative from the newspaper reports, because they reported only the negative and not the positive things Mr. Brown was doing. Mr. Brown said he accepted the blame for what happened with Studio 14 when he was the CEO. He hoped there would never be another negative article about him.Chairperson Gale said he wanted Mr. Brown to inform his broker of his past convictions, and to notify the Commission of any future problems. Mr. Brown said he had discussed his criminal history with his prospective broker. Commissioner Strand said that, as the public member, he was also concerned about Mr. Brown =s past activities and record. Commissioner Strand said it would affect others with whom Mr. Brown would work, and questioned whether the notoriety would do him any good. Mr. Brown said he wanted the opportunity to prove himself, and did not think he would fail. Mr. Brown said the only issues the Commission know about him were negative, and that was an embarrassment he could not change. He was a better person than the recent notoriety would indicate. The bar business failed because he did not have anyone looking over his shoulder, but in real estate he would. The mentoring would be good for him. All he could do was move on and do better.Chairperson Gale noted that there was always pressure to cut corners, and that Mr. Brown could not do that in the real estate business. Mr. Brown had to make a commitment to do a good job. Chairperson Gale suggested that Mr. Brown take advantage of continuing education classes, such as ethics classes. Commissioner Moline said he would vote against allowing Mr. Brown to sit for the examination. A real estate broker did not have time to watch each licensee. Other applicants were required to have a period of time pass between completing their sentences and being allowed to sit for the examination. Commissioner Moline said that, based on Mr. Brown =s past, Mr. Brown needed to have some positive things on his track record. Mr. Brown stated that he has done positive things. He had a football training camp for 75-80 kids, and brought in current and former Huskers to help with the camps. Mr. Brown said he was also involved in a company with his brother. Mr. Brown said those were positive things, and the nightclub business was a negative thing. Mr. Brown reiterated that he wanted the opportunity to prove himself.Commissioner Moline noted that Mr. Brown could reapply in a year if the Commission voted against him today. After discussion, a motion was made by Shepard and seconded by Johnson to allow Mr. Brown to sit for the salesperson examination, and to have a license issued upon passing. Commissioner Poskochil asked if the motion included any amendments. Commissioner Shepard amended the motion to require that Mr. Brown immediately notify the Commission of any criminal charges being filed against him for a period of 36 months. Commissioner Johnson accepted the amendments. Motion carried with Johnson, Poskochil, Shepard, and Gale voting aye, and with Moline, Strand, and Wiebusch voting no. Steven M. Abboud, Salesperson Applicant Director Tyrrell presented an Exhibit which included correspondence regarding Mr. Abboud =s Special Appearance, Mr. Abboud=s salesperson application, and information regarding Mr. Abboud=s criminal history. A copy of said Exhibit is attached to and made a part of these Minutes. Mr. Abboud was present.Mr. Abboud said he was an Arizona State graduate with a degree in finance. He had 10 years of experience in investment banking. He held no state or federal licenses. Mr. Abboud said he was the President/CEO of Global Entertainment, which was an on-line gaming business. The company was publicly traded. He was currently a shareholder, but was not employed by Global. Mr. Abboud had been unemployed since January, and was receiving unemployment compensation. He had spoken with some brokers, and had three relatives in the real estate business. He was not sure if he wanted to work for the relatives or go with a larger real estate company. Commissioner Poskochil asked about the obstruction of justice charge. Mr. Abboud said he did not remember anything about that charge, and asked when it happened. Director Tyrrell told him the date and that it was related to the littering charge. Mr. Abboud said that the police stopped a car in which he was a passenger. They gave the driver a sobriety test, and asked Mr. Abboud to get out of the car. Mr. Abboud got out, sat on the curb, lit a cigarette, and when he finished it he dropped it on the street and put it out. The police gave him a ticket for littering. Regarding the false application for a passport, Mr. Abboud said he changed his name in 1988 because of some marijuana charges against him. He was threatened with a lot of jail time, so he changed his name. Chairperson Gale asked if Mr. Abboud was currently on probation, and if he had ever applied for a pardon. Mr. Abboud said he was not on probation, and had not applied for a pardon because the required time had not passed. Commissioner Johnson asked about the suspension of Mr. Abboud =s driver=s license. Mr. Abboud said he knew nothing about the suspension, and showed the Commissioners the driver=s license he carried. Mr. Abboud said he would take care of the matter right away.Chairperson Gale expressed concern about Mr. Abboud =s driver=s license suspension, and said that was just like being on probation. In similar situations, the Commission did not allow applicants to sit for the examination until they were off probation. Chairperson Gale asked Mr. Abboud if he had overcome his problems. Mr. Abboud said he had his share of problems with drugs, and had overcome that and had no problem with drugs since the 1980s. Mr. Abboud said he drank in moderation and did not currently use drugs.Commissioner Poskochil asked about the 1988 charges related to the false Social Security number and other documents. Mr. Abboud said he had a marijuana charge in Phoenix in 1987 which was eventually dismissed. He had been threatened with a lot of jail time. Mr. Abboud said he attempted to get a passport and get out of the country, but he got caught. Commissioner Poskochil asked about the assault charge. Mr. Abboud said he had been living with his girlfriend, who got wrapped up in the wrong things and the wrong friends. They each got restraining orders against the other, which they both eventually dropped. They were now friends. Commissioner Poskochil said he was looking for some positive history. Mr. Abboud said he took his company public, he got a good education, and his temper had improved. Chairperson Gale noted that Mr. Abboud had two state felonies and one federal felony, all of which were still on his record. Mr. Abboud had not tried to get a pardon for those. Chairperson Gale said he was concerned with the driver =s license issue, the DUI, and the reckless driving and disorderly conduct convictions. Mr. Abboud=s pattern of behavior was a concern because Mr. Abboud would be helping people who would place their trust and confidence in the licensee to buy and sell homes. The felonies were a concern, as was the lack of positive things. Chairperson Gale was not willing to approve Mr. Abboud=s application until he knew more about the obstruction of justice charge and the driver=s license issue.Commissioner Johnson concurred with Chairperson Gale. After discussion, a motion was made by Moline and seconded by Shepard that Mr. Abboud =s application to sit for the salesperson examination be denied at this time, and that Mr. Abboud could reapply and make another informal special appearance in six months. Motion carried with Johnson, Moline, Shepard, and Gale voting aye, with Poskochil and Wiebusch voting no, and with Strand not participating or voting, being absent and excused.Approval of Travel Expenditures for ARELLO January Workgroup Meeting Director Tyrrell presented an Exhibit containing information regarding the cost of sending Commission members and staff to the ARELLO Workgroup Meeting next January in New Orleans. A copy of said Exhibit is attached to and made a part of these Minutes. Total cost per attendee was expected to be approximately $900.00. After discussion, a motion was made by Moline and seconded by Poskochil to approve the expenditures as presented for applicable Commissioners and staff to attend the Meeting. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye. Discussion of Consumer Guide to Buying and Selling Homes and Buyer Advisory Information from Arizona Director Tyrrell reported that there were no suggestions received from the Nebraska REALTORS 7 Association regarding the Consumer Guide to Buying and Selling Homes.After discussion, the consensus of the Commission was to add the Commission =s website address to the Consumer Guide to Buying and Selling Homes, to have a page on the website with links to other websites that provide information regarding real estate similar to those listed in the Arizona document, and to promote usage of the Consumer Guide and the website.Information Matters ARELLO Annual Meeting - Report of Attendees Commissioner Moline reported that he attended the meeting on Sunday only. He attended the session on communication, which was about asking questions and giving answers. It was a consensus of the attendees that this was an excellent session. Commissioner Shepard said he attended most of the sessions, and said he thought home inspector licensing needed to be addressed in Nebraska. Commissioner Shepard asked about putting it on a future Commission agenda. Chairperson Gale said the Nebraska REALTORS 7 Association should take the matter up with the Legislature. Chairperson Gale said a number of agencies could end up regulating home inspectors, including the Department of Insurance, the Secretary of State, and the Real Estate Commission. Director Tyrrell said he would seek more information on the subject from the American Society of Home Inspectors, and report back to the Commission. Commissioner Johnson said Larry Lyngstad from South Dakota would also be a good source of information. Commissioner Poskochil noted that 25 other states regulated home inspectors.Commissioner Poskochil said the session on virtual assistants and related liability issues was interesting. It was a very good meeting, and he was glad he went. Director Tyrrell said the overall program was the best he had attended in a number of years. Commissioner Wiebusch was elected as a Director. The model law is no longer being pursued. The Commission Member Training Board appeared to be taking a more proactive approach to its mission, and all ARELLO members will receive the new orientation CD. No action was necessary on this Report. Service Satisfaction Survey - September 2002 Mailing Results Director Tyrrell presented an Exhibit entitled AService Satisfaction Survey - September 2002 Mailing Results.@ A copy of said Exhibit is attached to and made a part of these Minutes.Surveys were included in approximately every fourth piece of mail during September (excluding renewals). 88 were mailed, and 8 were returned. The response rate was low, but all comments received were positive. No action was necessary on this Report. Consider Proposed Amendments to the Retirement Communities and Subdivisions Act Counsel Titus presented an Exhibit which consisted of proposed amendments to the Retirement Communities and Subdivisions Act. A copy of said Exhibit is attached to and made a part of these Minutes. Counsel Titus noted that the revisions were based on Commission discussion at the September meeting and comments received from a registrant. Comments had been solicited from all current registrants, but only one responded. Russell Gronewold, representing Immanuel Retirement Communities in Omaha, indicated that he appreciated the advance notice of the amendments and the chance to comment. He worked on the amendments with Commission staff, and all his comments were addressed in the revisions except one, which was the number of residents on the Board. He and Commission staff had agreed that any changes in this provision would be better made through an amendment made at the legislative hearing. Mr. Gronewold then described Immanuel =s situation, and answered questions from the Commission.A motion was made by Moline and seconded by Wiebusch to approve the proposed revisions, and that the revisions be submitted to the bill drafter =s office for legislation to be introduced in January. Motion carried with Johnson, Moline, Poskochil, Shepard, Strand, Wiebusch, and Gale voting aye.Future Meeting Dates December 11-12, 2002 - Staybridge Suites, Lincoln January 29-30, 2003 - Staybridge Suites, Lincoln March 5-6, 2003 - Staybridge Suites, Lincoln April 16-17, 2003 - Staybridge Suites, Lincoln May 28-29, 2003 - Staybridge Suites, Lincoln Recesses and Adjournment At 10:05 a.m. on October 23, Chairperson Gale declared a brief recess, and reconvened the Meeting at 10:20 a.m. At 11:45 a.m. on October 23, Commissioner Strand was excused for the remainder of the meeting. At 11:45 a.m. on October 23, Chairperson Gale declared a recess for lunch, and reconvened the Meeting at 12:30 p.m. At 1:12 p.m. on October 23, 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, Wiebusch, and Gale voting aye, and with Strand not participating or voting, being absent and excused. I, Les Tyrrell, Director of the Nebraska Real Estate Commission, do hereby certify that the foregoing Minutes of the October 23, 2002, Meeting of the Nebraska Real Estate Commission were available for inspection on October 31, 2002, in compliance with Section 84-1413(5) R.R.S. 1943, of Nebraska. Respectfully submitted, Guests Signing the Guest List Perre Neilan, Nebraska REALTORS 7 Association, LincolnTammy Brookhouser, Nebraska REALTORS 7 Association, LincolnKitty Kohn-Nemeckek, Nebraska REALTORS 7 Association, LincolnJanet Palmtag, J.J. Palmtag Inc./Nebraska REALTORS 7 Association, Nebraska CityJoan Nigro, CBSHOME, Omaha Joe Valenti, CBSHOME, Omaha Doug Ruge, CBSHOME, Omaha Mike Riedmann, NP Dodge, Omaha Thomas Myers, NP Dodge, Omaha John Liakos, NP Dodge, Omaha Brian Carlson, Lincoln Journal Star, Lincoln Leslie Reed, Omaha World Herald, Omaha Jill Bastian, KOLN/KGIN, Lincoln Marh Cheryl Smith, Lincoln Russell Gronewold, Immanuel Retirement Communities, Omaha |