| Editor's note: New information has come to light regarding a story we published on December 20th, Non-disclosure Law Overturned in Florida. Realty Times editors would like to take this opportunity to correct the story with the following information and to apologize to the Realty Times readers and the Florida Real Estate Commission for errors made in the report. |
The article reported that the Florida Real Estate Commission (FREC) had overturned legislation that had passed earlier in the year regarding the non-disclosure of agency
to unrepresented consumers. The article also stated that the FREC "directed its real estate
licensees to provide prospective buyers and sellers with disclosure of
non-representation, overturning legislation which passed earlier this
year." The report said that the FREC had, in effect, overturned a
law and issued an opinion that was contrary to the legislative intent.
According to James R. Mitchell, assistant attorney general and
counsel to the Florida Real Estate Commission, this was not correct.
"What actually occurred was the FREC was requested to give its opinion on
the new law via a procedure called a Petition for a Declaratory Statement.
This is where an affected person or group can ask a state agency for its
interpretation of a law. In this case, the Florida Association of Realtors
(FAR) had asked the FREC to interpret a recently enacted amendment to the
agency disclosure law," writes Mitchell. "Leading up to the request for the Declaratory
Statement there had been various opinions offered as to meaning of the new
law, including the opinion of the FAR, but the FREC had yet to speak to the
issue. The Declaratory Statement process allowed the FREC to hear the
arguments of the various groups, individuals and affected persons and then
issue its interpretation in the form of a Declaratory Statement.
"Therefore, when the FREC issued the Declaratory Statement, it was simply
stating what it felt the new law said and was in no way an overturning of
the law. Only a court can overturn a law and the FREC is not a court.
Obviously, there are those who disagree with the interpretation and may
perceive it as an overturning of the law but that is not the effect of the
FREC's action. If affected parties disagree with the FREC's opinion they
have the right to appeal the Declaratory Statement to the District Court of
Appeal.
The motion in question was made by Commissioner
Dean (not Gene) Saunders, and according to Mitchell, it was not "quickly passed" as stated in the
article, but was put to a vote after considerable discussion.
Published: January 13, 2000
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