Commission Approved for Notice of Intended Action: July 9, 1998
Filed as Notice of Intended Action: July 24, 1998
Published as ARC #8228A: 08-12-98
Public Hearing: September 1, 1998
Commission Adopted: December 10, 1998
Date Filed Adopted: December 11, 1998
Adopted Published ARC #8593A: December 30, 1998
First Possible Effective Date: February 3, 1999

REAL ESTATE COMMISSION [193E]

Adopted and Filed

Pursuant to the authority of Iowa Code section 543B.9, the Real Estate Commission hereby amends Chapter 1, "Business Conduct," and adopts Chapter 8, "Waivers or Variances from Rules," Iowa Administrative Code.

In accordance with authority granted to the Commission, the Commission amends rule 193E--1.1(543B) by adding the definition of "Firm." New subrules 1.24(3) and 1.24(4) establish guidelines and requirements for firms and individual licensees advertising on the Internet. Subrules 1.24(5) and 1.24(6) establish guidelines and requirements for firms and licensees using E-mail and other Internet electronic communications. The proposed Chapter 8 allows the Commission to consider a waiver or variance from administrative rules, provides applicants and licensees with the procedures necessary to request a waiver or variance and outlines the Commission's responsibilities when a request is submitted.

Notice of Intended Action was published in the Iowa Administrative Bulletin on August 12, 1998, as ARC 8228A.

A public hearing was held on September 1, 1998. No one attended and no comments were received concerning new Chapter 8, and it remains the same as published under Notice of Intended Action. E-mail comments were received from three persons concerning amendments to Chapter 1. In response to comments received, the following changes were made:

1. Language was added to 1.24(3) and 1.24(4) to clarify that marketing and providing information is advertising. Language was also added to clarify that the application of this subrule applies only to web pages owned by or controlled by the licensee. The required inclusion of the license number was removed.
2. Language was added to 1.24(5) and 1.24(6) to clarify that the E-mail disclosure requirements apply to providing information and all marketing. The required inclusion of the license number was removed.

These amendments were adopted by the Real Estate Commission on December 10, 1998.

These amendments shall become effective February 3, 1999.

These amendments are intended to implement Iowa Code chapter 543B.

The following amendments are adopted.

Item 1. Amend rule 193E--1.1(543B by adopting the following new definition in alphabetical order:

"Firm" means a licensed partnership, association, or corporation.

Item 2. Adopt new subrules 1.24(3) to 1.24(6) as follows:

1.24(3) A licensed firm advertising or marketing on a site on the Internet, that is either owned by or controlled by the licensed firm, must include on each page of the site on which the firm's advertisement or information appears the following data:

a. The firm's name as registered with the commission (abbreviations are not permitted);
b. The city and state in which the firm's main office is located; and
c. The states in which the firm holds a real estate brokerage license.

1.24(4) A licensee advertising or marketing on a site on the Internet, that is either owned by or controlled by the licensee, must include on each page of the site on which the licensee's advertisement or information appears the following data:

a. The licensee's name;
b. The name of the firm with which the licensee is affiliated as that firm name is registered with the commission (abbreviations are not permitted);
c. The city and state in which the licensee's office is located; and
d. The states in which the licensee holds a real estate broker or salesperson license.

1.24(5) A firm using any Internet electronic communication for advertising or marketing, including but not limited to E-mail, E-mail discussion groups, and bulletin boards, must include on the first or last page of all communications the following data:

a. The firm's name as registered with the commission
(abbreviations are not permitted);
b. The city and state in which the firm's main office is located; and
c.The states in which the firm holds a real estate brokerage license.

1.24(6) A licensee using any Internet electronic communication for advertising or marketing, including but not limited to E-mail, E-mail discussion groups, and bulletin boards, must include on the first or last page of all communications the following data:

a. The licensee's name;
b. The name of the firm with which the licensee is affiliated as that firm name is registered with the commission (abbreviations are not permitted);
c. The city and state in which the licensee's office is located; and
d. The states in which the licensee holds a real estate broker or salesperson license.

Item 3. Adopt the following new chapter:

CHAPTER 8

WAIVERS OR VARIANCES FROM RULES

193E—8.1(543B) Applicability. This chapter governs waivers or variances from commission rules in the following circumstances: The commission has the exclusive authority to promulgate the rule from which waiver or variance is requested or has final decision-making authority over a contested case in which waiver or variance is requested; and no statute or rule otherwise controls the granting of a waiver or variance from the rule for which the waiver or variance is requested.

8.1(1) Commission's authority. The commission may grant a waiver of, or variance from, all or part of a rule, upon the criteria described in rule 8.2(543B).

8.1(2) Compliance with statute. No waiver or variance may be granted from a requirement which is imposed by statute. Any waiver or variance must be consistent with statute.

193E—8.2(543B) Criteria. A waiver or variance under this chapter may be granted only upon a showing that:

Substantially equal protection of health and safety will be afforded by a means other than that prescribed in the particular rule for which the variance or waiver is requested;

2. The waiver or variance will not harm other persons and will not adversely affect the public interest;

Because of special circumstances, either the requester is unable to comply with the particular rule without undue hardship or compliance with the particular rule would be unnecessarily and unreasonably costly and serve no public benefit; and

Provision of a waiver or variance under the circumstances would not adversely impact an overall goal of uniform treatment of all licensees.

193E—8.3(543B) Request. A request for a waiver or variance must be submitted in writing to the commission as follows:

8.3(1) License application. If the request relates to an application for a license, the request shall be made in accordance with the filing requirements for the license in question.

8.3(2) Contested case. If the request relates to a pending contested case, the request shall be filed in the contested case proceeding.

8.3(3) Other. If the request does not relate to a particular license and is not related to a pending contested case, the request may be submitted to the commission's executive secretary.

193E—8.4(543B) Elements. A request for a waiver or variance shall include the following information where applicable:

1. The name, address, and telephone number of the person requesting the waiver or variance and the person's representative, if any.

2. The specific rule from which a waiver or variance is requested.

3. The nature of the waiver or variance requested, including any alternative means or other proposed condition or modification proposed to achieve the purpose of the rule.

4. An explanation of the reason for requesting the waiver or variance, including all material facts relevant to granting of the waiver or variance in question.

5. A description of any prior contact between the commission and the requester relating to the regulated activity or license affected by the proposed waiver or variance, including a description of each affected license held by the requester, any notices of violation, contested case hearings, or investigative reports relating to the regulated activity or license within the last five years.

6. The name, address, and telephone number of any public agency or political subdivision which also regulates the activity in question or which might be affected by the granting of a waiver or variance.

7. Any information known to the requester regarding the commission's treatment of similar cases.

8. The name, address, and telephone number of any person with knowledge of the relevant facts relating to the proposed waiver or variance.

9. Any necessary releases of information authorizing persons with knowledge to disclose relevant information to the commission.

193E—8.5(543B) Ruling. The commission shall respond in writing to all requests. The ruling shall include the reason for granting or denying the request and, if approved, the time period during which the waiver or variance is effective. The commission may condition the granting of the waiver or variance on such reasonable conditions as appropriate to achieve the objectives of the particular rule in question through alternative means.

193E—8.6(543B) Public availability. All final rulings in response to requests for waivers or variances shall be indexed and available to members of the public at the commission office.

193E—8.7(543B) Voiding or cancellation. A waiver or variance is void if the material facts upon which the request is based are not true or if material facts have been withheld. The commission may at any time cancel a waiver or variance upon appropriate notice and hearing if the commission finds that the facts as stated in the request are not true, material facts have been withheld, the alternative means of compliance provided in the waiver or variance has failed to achieve the objectives of the statute, or the requester has failed to comply with conditions set forth in the waiver or variance approval.

193E—8.8(543B) Violations. Violation of conditions in the waiver or variance approval is the equivalent of violation of the particular rule for which the waiver or variance is granted and is subject to the same remedies or penalties.

193E—8.9(543B) Appeals. Any request for an appeal from a decision granting or denying a waiver or variance shall be in accordance with the procedures provided in Iowa Code chapter 17A and rules of the real estate commission. An appeal shall be taken within 30 days of the issuance of the ruling in response to the request unless a contrary time is provided by rule or statute.

These rules are intended to implement Iowa Code chapter 543B.

Roger L. Hansen, Executive Secretary
Iowa Real Estate Commission