California Business and Professions Code. Division 4. Real Estate Part 1. Licensing of persons. General provisions. Administration 10000.   This part may be cited as the Real Estate Law.   10001.   The definitions in this chapter apply to the provisions of this part only and do not affect any other provisions of this Code.   10003.   "Commissioner" refers to the Real Estate Commissioner.   10004.   "Department" means the DRE in the Business, Transportation and Housing Agency.   10005.   Whenever the terms "division," "State Real Estate Division," or "Real Estate Division" are used in this division, they mean the DRE. Whenever the terms " State Real Estate Division" or " Real Estate Division" are used in any other law, they mean the Department of Real Estate - DRE.   10006.   "Person" includes corporation, company and firm.   10007.   "Provisions of this part relating to real estate" refers to the provisions of Chapters 1, 2, 3 and 6 of Part 1.   10008.   "Provisions of this part relating to business opportunity regulation" refers to the provisions of Chapters 1, 2, and 6 of Part 1.   10008.5.   Solely with regard to any transaction involving the sale, lease, or exchange of a business opportunity occurring before, on, or after the effective date of this section, this division shall not apply to any person Licensed at the time of the transaction as a securities Broker or securities dealer under any law of this state or of the United States, or by any employee, officer, or Agent of that person while acting under the direction of, and within the scope of, his or her employment with that person in connection with the transaction. As used in this section, "any transaction involving the sale, lease, or exchange of a business opportunity" does not include any of the acts described in Section 10131 or Section 10131.2 if the substance of the transaction is to transfer, sell, lease, or exchange an interest in real property for the purpose of evading this part.   10009.5.   "Provisions of this part relating to mineral, oil and gas brokerage" refers to the provisions of Chapters 1, 2, 6 and 7, of Part 1.   10010.   "Provisions of this part relating to hearings" refers to the provisions of Article 3 of Chapter 2 of Part 1.   10011.   "Licensee," when used without modification, refers to a person, whether Broker or Salesman, Licensed under any of the provisions of this part.   10012.   "Broker," when used without modification, refers to a person Licensed as a Broker under any of the provisions of this part.   10013.   "Salesman," when used without modification, refers to a person Licensed as a Salesman under any of the provisions of this part.   10014.   "Real estate Licensee" refers to a person, whether Broker or Salesman, Licensed under Chapter 3 of this part.   10015.   "Real estate Broker" refers to a person Licensed as a Broker under Chapter 3 of this part.   10016.   "Real estate Salesman" refers to a person Licensed as a Salesman under Chapter 3 of this part.   10017.   Whenever the word Salesman is used in this division, or in the rules and regulations of the Commissioner, it means Salesperson. A Licensee, however, may elect to refer to the Licensed status as real estate Salesman, real estate saleswoman, or real estate Salesperson.   10023.   "Mineral, oil and gas Licensee" refers to a person Licensed under Chapter 7 (commencing with Section 10500) of this part.   10024.   "Mineral, oil and gas Broker" refers to a person Licensed as a Broker under Chapter 7 of this part. 10026.   (a) The term "advance fee," as used in this part, is a fee, regardless of the form, that is claimed, demanded, charged, received, or collected by a Licensee for services requiring a License, or for a listing, as that term is defined in Section 10027, before fully completing the service the Licensee contracted to perform or represented would be performed. Neither an advance fee nor the services to be performed shall be separated or divided into components for the purpose of avoiding the application of this division.   (b) For the purposes of this section, the term "advance fee" does not include:   (1) "Security" as that term is used in Section 1950.5 of the Civil Code. (2) A "screening fee" as that term is used in Section 1950.6 of the Civil Code. (3) A fee that is claimed, demanded, charged, received, or collected for the purpose of advertising the sale, lease, or exchange of real estate, or of a business opportunity, in a newspaper of general circulation, any other written publication, or through electronic media comparable to any type of written publication, provided that the electronic media or the publication is not under the control or ownership of the Broker. (4) A fee earned for a specific service under a "limited service" contract. For purposes of this section, a "limited service" contract is a written agreement for real estate services described in subdivision (a), (b), or (c) of Section 10131, and pursuant to which such services are promoted, advertised, or presented as stand-alone services, to be performed on a task-by-task basis, and for which compensation is received as each separate, contracted-for task is completed. To qualify for this exclusion, all services performed pursuant to the contract must be described in subdivision (a), (b), or (c) of Section 10131.   (c) A contract between a real estate Broker and a Principal that requires payment of a commission to the Broker after the contract is fully performed does not represent an agreement for an advance fee. (d) This section does not exempt from regulation the charging or collecting of a fee under Section 1950.5 or 1950.6 of the Civil Code, but instead regulates fees that are not subject to those sections.   10027.   The term "listing" as used in this part includes, but is not limited to:   (a) The name or a list of the names, of the owners, landlords, exchangers, or lessors, or the location or locations, of property, or of an interest in property, offered for rent, sale, lease, or exchange. (b) The name, or a list of the names, or the location or locations at which prospective or potential purchasers, buyers, lessees, tenants or exchangers of property may be found or contacted. (c) An agreement by which a person who is engaged in the business of promoting the sale or lease of business opportunities or real estate agrees to render to an owner or lessee of such property any services, to promote the sale or lease of said property. (d) An agreement by which a person who is engaged in the business of finding, locating or promoting the sale or lease of business opportunities or real estate, agrees to circularize, notify or refer real estate brokers or Salesmen to said property which is offered for sale or lease.   10028.   "Trust deed" or "deed of Trust" as used in this part includes "mortgage".   10029.   "Real property sales contract" as used in this part is an agreement wherein one party agrees to convey title to real property to another party upon the satisfaction of specified conditions set forth in the contract and which does not require conveyance of title within one year from the date of formation of the contract.   10030.   As used in this part, the words "business opportunity" shall include the sale or lease of the business and goodwill of an existing business enterprise or opportunity.   10032.   (a) All obligations created under Section 10000, and following, all regulations issued by the Commissioner relating to real estate salespersons, and all other obligations of brokers and real estate salespersons to members of the public shall apply regardless of whether the real estate Salesperson and the Broker to whom he or she is Licensed have characterized their relationship as one of "independent contractor" or of "employer and employee". (b) A real estate Broker and a real estate Salesperson Licensed under that Broker may contract between themselves as independent contractors or as employer and employee, for purposes of their legal relationship with and obligations to each other. Characterization of a relationship as either "employer and employee" or "independent contractor" for statutory purposes, including, but not limited to withholding taxes on wages and for purposes of unemployment compensation, shall be governed by Section 650 and Sections 13000 to 13054, inclusive, of the Unemployment Insurance Code. For purposes of workers compensation the characterization of the relationship shall be governed by Section 3200, and following, of the Labor Code.   10035.   Neither Section 10185 nor any other provision of this part which makes violation of this part a crime shall be construed to preclude application of any other criminal provision of the law of this state to an act or omission which constitutes a violation of this part. 10050. There is in the Business and Transportation Agency a DRE, the chief officer of which department is named the Real Estate Commissioner. It shall be the principal responsibility of the Commissioner to enforce all laws in this part (commencing with Section 10000) and Chapter 1 (commencing with Section 11000) of Part 2 of this division in a manner which achieves the maximum protection for the purchasers of real property and those persons dealing with real estate Licensees.   10050.1. Protection of the public shall be the highest priority for the DRE in exercising its licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.   10051.   The Commissioner shall be appointed by the Governor.   10052.   The Commissioner shall have been for five years a real estate Broker actively engaged in business as such in California, or shall possess related experience associated with real estate activity in California for five years within the last 10 years.   10053.   The Commissioner shall receive an annual salary as provided in Chapter 6 (commencing with Section 11550) of Part 1 of Division 3 of Title 2 of the Government Code, to be paid monthly out of the State Treasury upon a warrant of the Controller, and shall be allowed his actual and necessary expenses in the discharge of his duties.   10071.   The Commissioner shall enforce the provisions of this part and of Chapter 1 of Part 2. He has full power to regulate and control the issuance and revocation, both temporary and permanent, of all licenses to be issued under the provisions of this part, and to perform all other acts and duties provided in this part and Chapter 1 of Part 2 and necessary for their enforcement.   10073.   The Commissioner shall employ such deputies, clerks and employees as he may need to discharge in proper manner the duties imposed upon him by law.   10074.   After qualifying as such neither the Commissioner nor any of the deputies, clerks or employees of the department shall be interested in any mineral, oil or gas business, mineral, oil or gas brokerage firm, real estate company or any real estate brokerage firm, as director, stockholder, officer, member, Agent or employee, or act as a Broker or Salesman, or act as a co-partner or Agent for any Broker or brokers, Salesman or Salesmen.   10075.   Deputies, clerks and employees shall perform such duties as the Commissioner shall assign to them. Subject to the powers of the State Personnel Board and the Director of Finance, the Commissioner shall fix the compensation of such deputies, clerks and employees, which compensation shall be paid monthly on a certificate of the Commissioner, and on the warrant of the Controller out of the State Treasury.   10076.   Each deputy shall, after his appointment, take and subscribe to the constitutional oath of office and file the same in the office of the Secretary of State.   10077.   The Commissioner shall have his Principal office in the City of Sacramento, and may establish branch offices in the City and County of San Francisco, the City of Los Angeles and in such other cities as the Commissioner may deem necessary, subject to the approval of the Department of Finance.   10078.   The Commissioner shall adopt a seal with the words "Real Estate Commissioner State of California" and such other device as the Commissioner may desire engraved thereon, by which he shall authenticate the proceedings of his office. Copies of all records and papers in the office of the Commissioner certified under the hand and seal of the Commissioner shall be received in evidence in all cases equally and with like effect as the originals.   10079.   (a) The Attorney General shall render to the Commissioner opinions upon all questions of law relating to the construction or interpretation of this part or Chapter 1 of Part 2 or arising in the administration thereof that may be submitted to him or her by the Commissioner. Except as provided in subdivision (b), the Attorney General shall act as the attorney for the Commissioner in all actions and proceedings brought by or against him or her under or pursuant to any of the provisions of this part or of Chapter 1 of Part 2.   (b) In the case of refusal by a Licensee to obey a subpoena issued to that Licensee, the Commissioner may, by a noticed motion, apply to the superior court for, and the superior court may issue to the Licensee, an order requiring the Licensee to appear before the Commissioner, or the representative designated by the Commissioner, to produce documentary evidence, if so ordered, or to give evidence touching the matter under investigation or in question. Failure of the Licensee to obey the order of the court may be punished by the court as a contempt.   10080.   The Commissioner may adopt, amend, or repeal rules and regulations that are reasonably necessary for the enforcement of the provisions of this part and of Chapter 1 (commencing with Section 11000) of Part 2 of this division. The rules and regulations shall be adopted, amended, or repealed in accordance with the provisions of the Administrative Procedure Act.   10080.5.   In the event the Commissioner employs the services of an Agency engaged in the business of furnishing credit reports, such Agency shall have been engaged in such business continuously in this State for a period of not less than five years prior to the time of such employment.   10080.9.   (a) If, upon inspection, examination, or investigation, the Commissioner has cause to believe that a person who does not possess a real estate License is engaged or has engaged in activities for which a real estate License is required, or that a Licensee is violating or has violated any provision of this division or any rule or order thereunder, the Commissioner or his or her designated representative may issue a citation to that person in writing, describing with particularity the basis of the citation. Each citation may contain an order to correct the violation or violations identified and a reasonable time period or periods by which the violation or violations must be corrected. In addition, each citation may assess an administrative fine not to exceed two thousand five hundred dollars ($2,500), which shall be deposited into the Recovery Account of the Real Estate Fund and shall, upon appropriation by the Legislature, be available for expenditure for the purposes specified in Chapter 6.5 (commencing with Section 10470).   In assessing a fine, the Commissioner shall give due consideration to the appropriateness of the amount of the fine with respect to factors such as the gravity of the violation, the good faith of the person cited, and the history of previous violations. A citation issued and a fine assessed pursuant to this section, while constituting Discipline for a violation of the law, shall be in lieu of other administrative Discipline by the Commissioner for the offense or offenses cited, and the citation against and payment of any fine by a Licensee shall not be reported as disciplinary action taken by the Commissioner.   (b) Notwithstanding subdivision (a), nothing in this section shall prevent the Commissioner from issuing an order to desist and refrain from engaging in a specific business activity or activities or an order to suspend all business operations to a person who is engaged in or has engaged in continued or repeated violations of this part. In any of these circumstances, the sanctions authorized under this section shall be separate from, and in addition to, all other administrative, civil, or criminal penalties.   (c) If, within 30 days from the receipt of the citation or the citation and fine, the person cited fails to notify the Commissioner that he or she intends to request a hearing as described in subdivision (d), the citation or the citation and fine shall be deemed final.   (d) Any hearing under this section shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.   (e) After the exhaustion of the review procedures provided for in this section, the Commissioner may apply to the appropriate superior court for a judgment in the amount of any administrative penalty imposed pursuant to subdivision (a) and an order compelling the cited person to comply with the order of the Commissioner. The application, which shall include a certified copy of the final order of the Commissioner, shall constitute a sufficient showing to warrant the issuance of the judgment and order.   (f) Failure of any person to comply with the terms of a citation or pay a fine assessed pursuant to this section, within a reasonable period specified by the Commissioner, shall subject that person to disciplinary action by the Commissioner. In no event may a License be renewed if an unpaid fine remains outstanding or the terms of a citation have not been complied with. 10081.   (a) Whenever the Commissioner believes from evidence satisfactory to him that any person has violated or is about to violate any of the provisions of this part or of Chapter 1 (commencing with Section 11000) of Part 2 or any order, License, permit, decision, demand or requirement, or any part or provision thereof, he or she may bring an action in the name of the people of the State of California in the superior court of the State of California against that person to enjoin him or her from continuing the violation or engaging therein or doing any act or acts in furtherance thereof. In this action an order or judgment may be entered awarding such preliminary or final injunction as may be proper, but no preliminary injunction or temporary restraining order shall be granted without at least five days' notice to the defendant.   If the Commissioner makes a showing satisfactory to the court that the violations or threatened violations jeopardize funds and properties of others in the custody or under the control of the defendant, the court may appoint a receiver for management of the business of the defendant, including, but not limited to the funds and properties of others in his or her possession or may make any other order as it deems appropriate to protect and preserve those funds and properties. The order appointing the receiver shall specify the source of the funds for payment of the fees of the receiver and the costs attributable to administering the receivership. Unless provided for in the order, the Commissioner shall not be liable for payment of the fees or costs.   (b) The Commissioner may include in any action authorized by subdivision (a), a claim for restitution on behalf of the persons injured by the act or practice constituting the subject matter of the action, and the court shall have jurisdiction to award appropriate relief to such persons.   10081.5.   Whenever the Commissioner believes from evidence satisfactory to him or her that any real estate Licensee has violated or is about to violate, the provisions of Section 10145, the Commissioner may bring an action in the name of the people of the State of California, in the superior court of the State of California, to enjoin the Licensee from continuing the violation or engaging therein or doing any act or acts in furtherance thereof. In the event the Commissioner has conducted an audit which reflects commingling or conversion of Trust funds in excess of ten thousand dollars ($10,000), the court may enter an order restraining the Licensee from doing any act or acts in furtherance thereof, and from further exercising the privileges of his or her License pending further order of the court, provided that a hearing shall be held on the order within five days after the date thereof. After such hearing in the manner provided by law, an order may be entered appointing a receiver, or such other order as the court may deem proper. The order appointing the receiver shall specify the source of the funds from which the fees of the receiver and the costs of administering the receivership are to be paid. Unless provided for in the order, the Commissioner shall not be liable for payment of the fees or costs. A receiver appointed by the court pursuant to this section may, with the approval of the court, exercise all of the powers of the Licensee or its officers, directors, partners, trustees, or persons who exercise similar powers and perform similar duties, including the filing of a petition for bankruptcy of the Licensee.   10082.   The Commissioner may publish or cause to be published at appropriate intervals a directory or list of Licensed brokers and Salesmen and may publish therewith such matter as he may deem pertinent to this part and Chapter 1 (commencing with Section 11000) of Part 2. He shall furnish one copy of such directory to each Licensed Broker upon his request and the payment of an appropriate charge based upon cost of publication. Such directory may contain copies of the Real Estate Law, Chapter 1 (commencing with Section 11000) of Part 2 of Division 4 of the Business and Professions Code, and the Rules and Regulations of the Real Estate Commissioner.   10083.   The Commissioner may periodically issue a bulletin containing matter relating to the department, and to the provisions of this part and of Chapter 1 (commencing with Section 11000) of Part 2, and the administration thereof, and may publish the same character of matter in any established periodical published in the state which in his opinion would be most likely to disseminate such matter and information to Licensees under this part. 10083.2.   (a) The Commissioner shall provide on the Internet information regarding the status of every License issued by the department in accordance with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Information Practices Act of 1977 (Chapter 1 (commencing with Section 1798) of Title 1.8 of Part 4 of Division 3 of the Civil Code).   The public information to be provided on the Internet shall include information on suspensions and revocations of licenses issued by the department and accusations filed pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) relative to persons or businesses subject to licensure or regulation by the department. The information shall not include personal information, including home telephone number, date of birth, or social security number. The Commissioner shall disclose a Licensee's address of record. However, the Commissioner shall allow a Licensee to provide a post office box number or other alternate address, instead of his or her home address, as the address of record.   This section shall not preclude the Commissioner from also requiring a Licensee who has provided a post office box number or other alternative mailing address as his or her address of record to provide a physical business address or residence address only for the department's internal administrative use and not for disclosure as the Licensee's address of record or disclosure on the Internet.   (b) For purposes of this section, "Internet" has the meaning set forth in paragraph (6) of subdivision (f) of Section 17538.   10084.   The Commissioner may prepare a pamphlet or brochure dealing with disclosures of information in residential real estate transactions. The costs of preparation and distribution may be paid from such moneys as may from time to time be appropriated from the Real Estate Fund for education and research. The Commissioner shall make copies of the pamphlet or brochure available upon request to sellers, buyers, and real estate Licensees for a fee commensurate with the cost of preparation and distribution. Such fees as are collected shall be paid into the education and research account of the Real Estate Fund.   10084.1.   (a) Notwithstanding Section 10450.6, on or before January 1, 1991, the department, using funds appropriated from the Education and Research Account in the Real Estate Fund, shall develop a booklet to educate and inform consumers on all of the following: (1) Common environmental hazards that are located on, and affect, real property. The types of common environmental hazards shall include, but not be limited to, asbestos, radon gas, lead-based paint, formaldehyde, fuel and chemical storage tanks, and water and soil contamination. (2) The significance of common environmental hazards and what can be done to mitigate these hazards. (3) What sources can provide more information on common environmental hazards for the consumer.   (b) The department shall seek the advice of the State Department of Health Services to assist it in determining the contents of the booklet prepared pursuant to this section, and shall seek the assistance of the State Department of Health Services in the writing of the booklet.   10085.   The Commissioner may require that any or all materials used in obtaining advance fee agreements, including but not limited to: the contract forms, letters or cards used to solicit prospective sellers, and radio and television advertising be submitted to him or her at least 10 calendar days before they are used. Should the Commissioner determine that any such matter, when used alone or with any other matter, would tend to mislead he or she may, within 10 calendar days of the date he or she receives same, order that it not be used, disseminated, nor published. Any person or entity using, disseminating, or publishing any matter which the Commissioner has ordered, pursuant to this section, not to be used, published, or disseminated shall be guilty of a Misdemeanor punishable by a fine not exceeding two thousand five hundred dollars ($2,500) or by imprisonment in the county jail not exceeding six months, or both, for each such use, dissemination, or publication.   The Commissioner may determine the form of the advance fee agreements, and all material used in soliciting prospective owners and sellers shall be used in the form and manner which he or she determines is necessary to carry out the purposes and intent of this part. Any violation of any of the provisions of this part or of the rules, regulations, orders or requirements of the Commissioner thereunder shall constitute grounds for disciplinary action against a Licensee, or for proceedings under Section 10081 of this Code, or both. These sanctions are in addition to the criminal proceedings hereinbefore provided.   10085.5.   (a) It shall be unlawful for any person to claim, demand, charge, receive, collect, or contract for an advance fee   (1) for soliciting lenders on behalf of borrowers or performing services for borrowers in connection with Loans to be secured directly or collaterally by a Lien on real property, before the borrower becomes obligated to complete the Loan or, (2) for performing any other activities for which a License is required, unless the person is a Licensed real estate Broker and has complied with the provisions of this part.   (b) This section does not prohibit the acceptance or receipt of an advance fee by any bank, savings association, credit union, industrial Loan company, or person acting within the scope of a License issued to that person pursuant to Division 9 (commencing with Section 22000) of the Financial Code, in connection with Loans to be secured directly or collaterally by a Lien on real property. This section does not apply to charges made by title insurers and controlled Escrow companies pursuant to Chapter 1 (commencing with Section 12340) of Part 6 of Division 2 of the Insurance Code.   (c) A violation of this section is a public offense punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail for a term not to exceed six months, or by both that fine and imprisonment, or if by a corporation, the violation is punishable by a fine not exceeding fifty thousand dollars ($50,000).   10085.6.   (a) Notwithstanding any other provision of law, it shall be unlawful for any Licensee who negotiates, attempts to negotiate, arranges, attempts to arrange, or otherwise offers to perform a Mortgage Loan modification or other form of Mortgage Loan forbearance for a fee or other compensation paid by the borrower, to do any of the following:   (1) Claim, demand, charge, collect, or receive any compensation until after the Licensee has fully performed each and every service the Licensee contracted to perform or represented that he, she, or it would perform. (2) Take any wage assignment, any Lien of any type on real or personal property, or other security to secure the payment of compensation. (3) Take any power of attorney from the borrower for any purpose.   (b) A violation of this section by a natural person who is a Licensee is a public offense punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail for a term not to exceed one year, or by both that fine and imprisonment, or if by a corporation, the violation is punishable by a fine not exceeding fifty thousand dollars ($50,000). These penalties are cumulative to any other remedies or penalties provided by law.   (c) This section shall apply only to mortgages and deeds of Trust secured by residential real property containing four or fewer dwelling units. (d) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.   10086.   (a) If the Commissioner determines through an investigation that   (1) a person has engaged or is engaging in an activity which is a violation of a provision of this part, other than a provision of Article 8 (commencing with Section 10249) of Chapter 3, or which is a violation of a regulation of the Commissioner adopted for the purpose of implementing any provision of this part, other than a regulation adopted pursuant to a provision of Article 8 (commencing with Section 10249) of Chapter 3, or (2) a real estate Broker has engaged in or is engaging in an activity which is a violation of a provision of Division 6 (commencing with Section 17000) of the Financial Code, and which is not exempt pursuant to paragraph (4) of subdivision (a) of Section 17006, the Commissioner may direct the person to desist and refrain from such activity by issuance of an order specifying the nature of the activity and the factual and legal basis for his or her determination. The respondent to whom the order is directed shall immediately, upon receipt of the order, cease the activity described in the order.   (b) The respondent may, within 30 days after service of the order to desist and refrain, file a request for a hearing. If, with the request for hearing, the respondent also files a written verification that the order of the Commissioner precludes him or her from further engaging in a substantial proportion of his or her business, the Commissioner shall, within 10 days thereafter, file an action in superior court to restrain the respondent from continuing the activity or doing any act in furtherance thereof pending the completion of a hearing pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. If the Commissioner fails to bring the action in superior court within the time prescribed by this section, or if the court refuses to restrain the respondent pending the decision of the Commissioner following the administrative hearing, the respondent may resume the activities in question pending the rendering of the decision of the Commissioner following the administrative hearing. (c) The administrative hearing shall be commenced by the Commissioner within 30 days after receipt of respondent's request unless the respondent agrees to a postponement. If the hearing is not commenced within 30 days after receipt of respondent's request or on the date to which continued with respondent's consent, or if the Commissioner does not render a decision within 15 days after receipt of the proposed decision following the hearing, the order shall be deemed rescinded. (d) The provisions of Section 11019, and not the provisions of this section, shall apply in the case of an activity which the Commissioner determines to be in violation of Article 8 (commencing with Section 10249) of Chapter 3 or of a regulation of the Commissioner for implementation of any provision of that article.   10087.   (a) In addition to acting pursuant to the authority provided under Sections 10086, 10176, and 10177, the Commissioner may, after appropriate notice and opportunity for a hearing, by order, suspend, or bar from any position of employment, management, or control, for a period not exceeding 36 months, a real estate Salesperson or real estate Broker, or an unlicensed person issued an order under Section 10086, if the Commissioner finds either of the following:   (1) That the suspension or bar is in the public interest and that the person has committed or caused a violation of this division or rule or order of the Commissioner, which violation was either known or should have been known by the person committing or causing it or has caused material damage to the public. (2) That the person has been convicted of or pleaded nolo contendere to any crime, or has been held liable in any civil action by final judgment, or any administrative judgment by any public Agency, if that crime or civil or administrative judgment involved any offense involving dishonesty, fraud, or deceit, or any other offense reasonably related to the qualifications, functions, or duties of a person engaged in the real estate business in accordance with the provisions of this division.   (b) Within 15 days from the date of a notice of intention to issue an order pursuant to subdivision (a), the person may request a hearing under the Administrative Procedure Act (Chapter 4.5 (commencing with Section 11400) of Division 3 of Title 2 of the Government Code). If no hearing is requested within 15 days after the mailing or service of that notice and none is ordered by the Commissioner, the failure to request a hearing shall constitute a waiver of the right to a hearing. (c) Upon receipt of a notice of intention to issue an order pursuant to this section, the person who is the subject of the proposed order is immediately prohibited from engaging in any business activity involving real estate that is subject to regulation under this division. (d) Persons suspended or barred under this section are prohibited from participating in any business activity of a real estate Salesperson or a real estate Broker and from engaging in any real estate-related business activity on the premises where a real estate Salesperson or real estate Broker is conducting business. Persons suspended or barred under this section are also prohibited from participating in any real estate-related business activity of a finance lender, residential mortgage lender, bank, credit union, Escrow company, title company, or underwritten title company.   10088.   After the filing of a desist and refrain order or a bar order, or the commencement of a formal disciplinary action by the Commissioner, and upon a finding by the Commissioner that action is warranted for the protection of the public, and that failure to act is likely to result in grievous harm to the public, the Commissioner may make information public confirming the fact of an investigation or proceeding regarding a Licensee or unlicensed person believed to be engaging in activities for which a real estate License is required. Any release that contains the identity of a person or business under investigation shall include language explaining that the subject of the release is entitled to a public hearing on the merits of the desist and refrain order, bar order, or accusation or accusations against that person or business. The release may also clarify the procedural aspects and current status of the investigation or proceeding.   10100.   Before denying, suspending or revoking any License or License endorsement issuable or issued under the provisions of this part, the department shall proceed as prescribed by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the department shall have all the powers granted therein.   10100.2.   A Licensee against whom an investigation is pending or an accusation has been filed pursuant to Section 11503 of the Government Code may petition the Commissioner to voluntarily surrender his or her License. The surrender of a License shall become effective upon acceptance by the Commissioner and thereafter, a surrendered Licensee may be relicensed only by petitioning for reinstatement pursuant to Section 11522 of the Government Code. When deciding a petition for reinstatement, the Commissioner may consider all relevant evidence, including affidavits.   10100.4.   (a) Notwithstanding Section 11415.60 of the Government Code, the department may enter into a settlement with a Licensee or applicant instead of the issuance of an accusation or statement of issues against that Licensee or applicant. (b) The settlement shall identify the factual basis for the action being taken and the statutes or regulations violated. (c) A person who enters a settlement pursuant to this section is not precluded from filing a petition, in the timeframe permitted by law, to modify the terms of the settlement or a petition for early termination of probation, if probation is part of the settlement. (d) Any settlement with a Licensee executed pursuant to this section shall be considered Discipline by the department.   10101.   The accusation provided for by Section 11503 of the Government Code shall be filed not later than three years from the occurrence of the alleged grounds for disciplinary action unless the acts or omissions with which the Licensee is charged involves fraud, misrepresentation or a false promise in which case the accusation shall be filed within one year after the date of discovery by the aggrieved party of the fraud, misrepresentation or false promise or within three years after the occurrence thereof, whichever is later, except that in no case shall an accusation be filed later than 10 years from the occurrence of the alleged grounds for disciplinary action.   10103.   The lapsing or suspension of a License by operation of law or by order or decision of the department or a court of law, or the voluntary surrender of a License by a Licensee shall not deprive the department of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such Licensee, or to render a decision suspending or revoking such License.   10106.   (a) Except as otherwise provided by law, in any order issued in resolution of a disciplinary proceeding before the department, the Commissioner may request the Administrative law judge to direct a Licensee found to have committed a violation of this part to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case. (b) In the case of a disciplined Licensee that is a corporation or a partnership, the order may be made against the Licensed corporate entity or Licensed partnership. (c) A certified copy of the actual costs, or a good faith estimate of costs where actual costs are not available, signed by the Commissioner or the Commissioner's designated representative, shall be prima facie evidence of reasonable costs of investigation and prosecution of the case. The costs shall include the amount of investigative and enforcement costs up to the date of the hearing, including, but not limited to charges imposed by the Attorney General. (d) The Administrative law judge shall make a proposed finding of the amount of reasonable costs of investigation and prosecution of the case when requested pursuant to subdivision (a). The finding of the Administrative law judge with regard to costs shall not be reviewable by the Commissioner to increase the cost award. The Commissioner may reduce or eliminate the cost award, or remand to the Administrative law judge where the proposed decision fails to make a finding on costs requested pursuant to subdivision (a). (e) Where an order for recovery of costs is made and timely payment is not made as directed in the Commissioner's decision, the Commissioner may enforce the order for repayment in any appropriate court. This right of enforcement shall be in addition to any other rights the Commissioner may have as to any licentiate to pay costs. (f) In any action for recovery of costs, proof of the Commissioner' s decision shall be conclusive proof of the validity of the order of payment and the terms for payment.   (g)   (1) Except as provided in paragraph (2), the department shall not renew or reinstate the License of any Licensee who has failed to pay all of the costs ordered under this section. (2) The department may, in its discretion, conditionally renew or reinstate for a maximum of one year the License of any Licensee who demonstrates financial hardship and who enters into a formal agreement with the department to reimburse the department within that one-year   period for the unpaid costs.   (h) All costs recovered under this section shall be considered a reimbursement for costs incurred and shall be deposited in the Real Estate Fund to be available, notwithstanding Section 10451, upon appropriation by the Legislature. (i) Nothing in this section shall preclude the department from including the recovery of the costs of investigation and enforcement of a case in any stipulated settlement. index   www.pseudology.org