What to do when you get a Desist and Refrain Order from the BRE
So let's say you are working for a mortgage company, property management company or some other real estate company. Your job function does not require you to have a real estate license (i.e. you are not engaged in "licensed real estate activity"). But then you get a Order of Desist and Refrain (the ""D&R letter" as we call it) and it threatens you with engaging in unlicensed real estate activity. What do you do? Will this lead to a real estate accusation? A cite and fine case? Read on.
California Desist and Refrain Law
Here is the code section for California Business & Professions 10086:
"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,
(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 activity.
What this means is if you dispute the findings in the Order, you can request a hearing, but if you persist in engaging in the activity, the DRE could file an action to enjoin you (in Superior Court) pending the outcome of the OAH (California Office of Administrative Hearing) case. We can help you in these types of legal actions.
Publicizing desist and refrain or bar orders and formal disciplinary proceedings. The Commissioner is authorized, whenever he or she finds that action is warranted for the protection of the public, to make information public concerning the fact of an investigation or proceeding with regard to a licensed or unlicensed person. The publication may occur after filing a desist and refrain order or bar order or commencement of formal disciplinary proceedings, and may include information about the status or progress of the investigation or proceeding. Bus. & Prof. Code, § 10088 (added by Stats., 2011, ch. 717 (SB 531, § 3).
The publication may occur after filing a desist and refrain order or bar order or commencement of formal disciplinary proceedings, and may include information about the status or progress of the investigation or proceeding. Bus. & Prof. Code, § 10088 (added by Stats., 2011, ch. 717 (SB 531, § 3).
What is the California Bureau of Real Estate "Cite and Fine" unit?
If you are being charged with engaging in unlicensed real estate activity the Bureau of Real Estate ("BRE") now has a unit that can "cite and fine" you, almost the same as a cop writing you a speeding ticket. When charged with and facing a cite and fine case, you might want to retain real estate counsel to advise you.
What are the possible penalties for engaging in unlicensed real estate activity?
Here is more information about the California DRE CITE AND FINE unit!!!
Do you have a list of things that are licensed real estate activities versus unlicensed activity?
Here is a general list of things that are considered to be licensed activities from those that are not licensed activities. This is only a general list and depends on the facts of your case. If you are in doubt, pay the small fee and get a legal consultation from a real estate law firm.
Three things to do when you get a Desist and Refrain Order from the California Bureau of Real Estate.
Here are Attorney Steve's top three tips when you are hit with a D&R Order:
1. If you are engaging in unlicensed activities, immediately cease and desist from engaging in future unlicensed acts.
2. If you are not sure whether or not you are in violation, contact a California real estate attorney to review your case. You have the legal right to request a hearing on the issue.
TIP: You must request the hearing within 30 days, and should do this IN WRITING.
3. You may need to respond in writing to defend your good name, and reputation, and in some cases, to avoid being levied with a "cite and fine" enforcement action.
If you have questions, contact us at the number below.
Contact a Real Estate Lawyer (we handle real estate arbitration, litigation and accusation cases in California and Arizona).
We have business and real estate offices in California and Arizona, and we handle cases in and around San Diego, Los Angeles, San Francisco, Orange County, Bay area, and Phoenix, Arizona (Maricopa County). Contact us at (877) 276-5084.