As Passed by the Senate

126th General Assembly Regular Session 2005-2006

Am. Sub. H. B. No. 150

Representatives Gibbs, McGregor, J., Ujvagi, Evans, C., Kearns, Williams, Hagan, Reidelbach, Collier, Distel, Miller, Cassell, Schaffer, Barrett, Blessing, Chandler, Combs, Schneider, Stewart, D., Willamowski 

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A BILL

To amend sections 4735.01, 4735.16, 4735.18, 4735.51,

1

4735.63, 4735.65, 4737.10, 4737.99, and 4738.16

2

and to enact sections 4735.621 and 4735.75 of the

3

Revised Code to impose new requirements on

4

licensed junk yard owners, to require scrap metal

5

processors to maintain specified records regarding

6

canceled motor vehicle titles, to add definitions

7

to real estate broker law and to expand duties of

8

licensees.

9

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 4735.01, 4735.16, 4735.18, 4735.51,	10
4735.63, 4735.65, 4737.10, 4737.99, and 4738.16 be amended and	11
sections 4735.621 and 4735.75 of the Revised Code be enacted to	12
read as follows:	13

Sec. 4735.01.  As used in this chapter:

14

(A) "Real estate broker" includes any person, partnership,	15
association, limited liability company, limited liability	16
partnership, or corporation, foreign or domestic, who for another,	17
whether pursuant to a power of attorney or otherwise, and who for	18
a fee, commission, or other valuable consideration, or with the	19
intention, or in the expectation, or upon the promise of receiving	20
or collecting a fee, commission, or other valuable consideration	21
does any of the following:	22

(1) Sells, exchanges, purchases, rents, or leases, or	23
negotiates the sale, exchange, purchase, rental, or leasing of any	24
real estate;	25

(2) Offers, attempts, or agrees to negotiate the sale,	26
exchange, purchase, rental, or leasing of any real estate;	27

(3) Lists, or offers, attempts, or agrees to list, or	28
auctions, or offers, attempts, or agrees to auction, any real	29
estate;	30

(4) Buys or offers to buy, sells or offers to sell, or	31
otherwise deals in options on real estate;	32

(5) Operates, manages, or rents, or offers or attempts to	33
operate, manage, or rent, other than as custodian, caretaker, or	34
janitor, any building or portions of buildings to the public as	35
tenants;	36

(6) Advertises or holds self out as engaged in the business	37
of selling, exchanging, purchasing, renting, or leasing real	38
estate;	39

(7) Directs or assists in the procuring of prospects or the	40
negotiation of any transaction, other than mortgage financing,	41
which does or is calculated to result in the sale, exchange,	42
leasing, or renting of any real estate;	43

(8) Is engaged in the business of charging an advance fee or	44
contracting for collection of a fee in connection with any	45
contract whereby the broker undertakes primarily to promote the	46
sale, exchange, purchase, rental, or leasing of real estate	47
through its listing in a publication issued primarily for such	48
purpose, or for referral of information concerning such real	49
estate to brokers, or both, except that this division does not	50
apply to a publisher of listings or compilations of sales of real	51
estate by their owners;	52

(9) Collects rental information for purposes of referring	53
prospective tenants to rental units or locations of such units and	54
charges the prospective tenants a fee.	55

(B) "Real estate" includes leaseholds as well as any and	56
every interest or estate in land situated in this state, whether	57
corporeal or incorporeal, whether freehold or nonfreehold, and the	58
improvements on the land, but does not include cemetery interment	59
rights.	60

(C) "Real estate salesperson" means any person associated	61
with a licensed real estate broker to do or to deal in any acts or	62
transactions set out or comprehended by the definition of a real	63
estate broker, for compensation or otherwise.	64

(D) "Institution of higher education" means either of the	65
following:	66

(1) A nonprofit institution as defined in section 1713.01 of	67
the Revised Code that actually awards, rather than intends to	68
award, degrees for fulfilling requirements of academic work beyond	69
high school;	70

(2) An institution operated for profit that otherwise	71
qualifies under the definition of an institution in section	72
1713.01 of the Revised Code and that actually awards, rather than	73
intends to award, degrees for fulfilling requirements of academic	74
work beyond high school.	75

(E) "Foreign real estate" means real estate not situated in	76
this state and any interest in real estate not situated in this	77
state.	78

(F) "Foreign real estate dealer" includes any person,	79
partnership, association, limited liability company, limited	80
liability partnership, or corporation, foreign or domestic, who	81
for another, whether pursuant to a power of attorney or otherwise,	82
and who for a fee, commission, or other valuable consideration, or	83
with the intention, or in the expectation, or upon the promise of	84
receiving or collecting a fee, commission, or other valuable	85
consideration, does or deals in any act or transaction specified	86
or comprehended in division (A) of this section with respect to	87
foreign real estate.	88

(G) "Foreign real estate salesperson" means any person	89
associated with a licensed foreign real estate dealer to do or	90
deal in any act or transaction specified or comprehended in	91
division (A) of this section with respect to foreign real estate,	92
for compensation or otherwise.	93

(H) Any person, partnership, association, limited liability	94
company, limited liability partnership, or corporation, who, for	95
another, in consideration of compensation, by fee, commission,	96
salary, or otherwise, or with the intention, in the expectation,	97
or upon the promise of receiving or collecting a fee, does, or	98
offers, attempts, or agrees to engage in, any single act or	99
transaction contained in the definition of a real estate broker,	100
whether an act is an incidental part of a transaction, or the	101
entire transaction, shall be constituted a real estate broker or	102
real estate salesperson under this chapter.	103

(I) The terms "real estate broker," "real estate	104
salesperson," "foreign real estate dealer," and "foreign real	105
estate salesperson" do not include a person, partnership,	106
association, limited liability company, limited liability	107
partnership, or corporation, or the regular employees thereof, who	108
perform any of the acts or transactions specified or comprehended	109
in division (A) of this section, whether or not for, or with the	110
intention, in expectation, or upon the promise of receiving or	111
collecting a fee, commission, or other valuable consideration:	112

(1) With reference to real estate situated in this state or	113
any interest in it owned by such person, partnership, association,	114
limited liability company, limited liability partnership, or	115
corporation, or acquired on its own account in the regular course	116
of, or as an incident to the management of the property and the	117
investment in it;	118

(2) As receiver or trustee in bankruptcy, as guardian,	119
executor, administrator, trustee, assignee, commissioner, or any	120
person doing the things mentioned in this section, under authority	121
or appointment of, or incident to a proceeding in, any court, or	122
as a public officer, or as executor, trustee, or other bona fide	123
fiduciary under any trust agreement, deed of trust, will, or other	124
instrument creating a like bona fide fiduciary obligation;	125

(3) As a public officer while performing the officer's	126
official duties;	127

(4) As an attorney at law in the performance of the	128
attorney's duties;	129

(5) As a person who engages in the brokering of the sale of	130
business assets, not including the negotiation of the sale, lease,	131
exchange, or assignment of any interest in real estate;	132

(6) As a person who engages in the sale of manufactured homes	133
as defined in division (C)(4) of section 3781.06 of the Revised	134
Code, or of mobile homes as defined in division (O) of section	135
4501.01 of the Revised Code, provided the sale does not include	136
the negotiation, sale, lease, exchange, or assignment of any	137
interest in real estate;	138

(7) As a person who engages in the sale of commercial real	139
estate pursuant to the requirements of section 4735.022 of the	140
Revised Code.	141

(J) "Physically handicapped licensee" means a person licensed	142
pursuant to this chapter who is under a severe physical disability	143
which is of such a nature as to prevent the person from being able	144
to attend any instruction lasting at least three hours in	145
duration.	146

(K) "Division of real estate" may be used interchangeably	147
with, and for all purposes has the same meaning as, "division of	148
real estate and professional licensing."	149

(L) "Superintendent" or "superintendent of real estate" means	150
the superintendent of the division of real estate and professional	151
licensing of this state. Whenever the division or superintendent	152
of real estate is referred to or designated in any statute, rule,	153
contract, or other document, the reference or designation shall be	154
deemed to refer to the division or superintendent of real estate	155
and professional licensing, as the case may be.	156

(M) "Inactive license" means the license status in which a	157
salesperson's license is in the possession of the division,	158
renewed as required under this chapter or rules adopted under this	159
chapter, and not associated with a real estate broker.	160

(N) "Broker's license on deposit" means the license status in	161
which a broker's license is in the possession of the division of	162
real estate and professional licensing and renewed as required	163
under this chapter or rules adopted under this chapter.	164

(O) "Suspended license" means the license status that	165
prohibits a licensee from providing services that require a	166
license under this chapter for a specified interval of time.	167

(P) "Reactivate" means the process prescribed by the	168
superintendent of real estate and professional licensing to remove	169
a license from an inactive, suspended, or broker's license on	170
deposit status to allow a licensee to provide services that	171
require a license under this chapter.	172

(Q) "Revoked" means the license status in which the license	173
is void and not eligible for reactivation.	174

(R) "Commercial real estate" means any parcel of real estate	175
in this state other than real estate containing one to four	176
residential units. "Commercial real estate" does not include	177
single-family residential units such as condominiums, townhouses,	178
manufactured homes, or homes in a subdivision when sold, leased,	179
or otherwise conveyed on a unit-by-unit basis, even when those	180
units are a part of a larger building or parcel of real estate	181
containing more than four residential units.	182

(S) "Out-of-state commercial broker" includes any person,	183
partnership, association, limited liability company, limited	184
liability partnership, or corporation that is licensed to do	185
business as a real estate broker in a jurisdiction other than	186
Ohio.	187

(T) "Out-of-state commercial salesperson" includes any person	188
affiliated with an out-of-state commercial broker who is not	189
licensed as a real estate salesperson in Ohio.	190

(U) "Exclusive right to sell or lease listing agreement"	191
means an agency agreement between a seller and broker that meets	192
the requirements of section 4735.55 of the Revised Code and does	193
both of the following:	194

(1) Grants the broker the exclusive right to represent the	195
seller in the sale or lease of the seller's property;	196

(2) Provides the broker will be compensated if the broker,	197
the seller, or any other person or entity produces a purchaser or	198
tenant in accordance with the terms specified in the listing	199
agreement or if the property is sold or leased during the term of	200
the listing agreement to anyone other than to specifically	201
exempted persons or entities.	202

(V) "Exclusive agency agreement" means an agency agreement	203
between a seller and broker that meets the requirements of section	204
4735.55 of the Revised Code and does both of the following:	205

(1) Grants the broker the exclusive right to represent the	206
seller in the sale or lease of the seller's property;	207

(2) Provides the broker will be compensated if the broker or	208
any other person or entity produces a purchaser or tenant in	209
accordance with the terms specified in the listing agreement or if	210
the property is sold or leased during the term of the listing	211
agreement, unless the property is sold or leased solely through	212
the efforts of the seller or to the specifically exempted persons	213
or entities.	214

(W) "Exclusive purchaser agency agreement" means an agency	215
agreement between a purchaser and broker that meets the	216
requirements of section 4735.55 of the Revised Code and does both	217
of the following:	218

(1) Grants the broker the exclusive right to represent the	219
purchaser in the purchase or lease of property;	220

(2) Provides the broker will be compensated in accordance	221
with the terms specified in the exclusive agency agreement or if a	222
property is purchased or leased by the purchaser during the term	223
of the agency agreement unless the property is specifically	224
exempted in the agency agreement.	225

The agreement may authorize the broker to receive	226
compensation from the seller or the seller's agent and may provide	227
that the purchaser is not obligated to compensate the broker if	228
the property is purchased or leased solely through the efforts of	229
the purchaser.	230

(X) "Seller" means a party in a real estate transaction who	231
is the potential transferor of property. "Seller" includes an	232
owner of property who is seeking to sell the property and a	233
landlord who is seeking to rent or lease property to another	234
person.	235

Sec. 4735.16.  (A) Every real estate broker licensed under	236
this chapter shall have and maintain a definite place of business	237
in this state and shall erect or maintain a sign on the premises	238
plainly stating that the licensee is a real estate broker. If the	239
real estate broker maintains one or more branch offices, the real	240
estate broker shall erect or maintain a sign at each branch office	241
plainly stating that the licensee is a real estate broker.	242

(B)(1) Any licensed real estate broker or salesperson who	243
advertises to buy, sell, exchange, or lease real estate, or to	244
engage in any act regulated by this chapter, including, but not	245
limited to, any licensed real estate broker or salesperson who	246
advertises to sell, exchange, or lease real estate that the	247
licensee owns, shall be identified in the advertisement by name	248
and by indicating that the licensee is a real estate broker or	249
real estate salesperson. Except a real estate salesperson who	250
advertises the sale, exchange, or lease of real estate that the	251
salesperson owns and that is not listed for sale, exchange, or	252
lease with a real estate broker, any real estate salesperson who	253
advertises, as provided in this section, also shall indicate in	254
the advertisement the name of the broker under whom the	255
salesperson is licensed and the fact that the salesperson's broker	256
is a real estate broker. The name of the broker shall be displayed	257
in equal prominence with the name of the salesperson in the	258
advertisement.	259

(2) A real estate broker who is representing a seller under	260
an exclusive right to sell or lease listing agreement shall not	261
advertise such property to the public as "for sale by owner" or	262
otherwise mislead the public to believe that the seller is not	263
represented by a real estate broker.	264

(3) If any real estate broker or real estate salesperson	265
advertises in a manner other than as provided in this section or	266
the rules adopted under this section, that advertisement is prima-	267
facie evidence of a violation under division (A)(21) of section	268
4735.18 of the Revised Code.	269

When the superintendent determines that prima-facie evidence	270
of a violation of division (A)(21) of section 4735.18 of the	271
Revised Code or any of the rules adopted thereunder exists, the	272
superintendent may do either of the following:	273

(a) Initiate disciplinary action under section 4735.051 of	274
the Revised Code for a violation of division (A)(21) of section	275
4735.18 of the Revised Code, in accordance with Chapter 119. of	276
the Revised Code;	277

(b) Personally, or by certified mail, serve a citation upon	278
the licensee.	279

(C)(1) Every citation served under this section shall give	280
notice to the licensee of the alleged violation or violations	281
charged and inform the licensee of the opportunity to request a	282
hearing in accordance with Chapter 119. of the Revised Code. The	283
citation also shall contain a statement of a fine of two hundred	284
dollars per violation, not to exceed two thousand five hundred	285
dollars per citation. All fines collected pursuant to this section	286
shall be credited to the real estate recovery fund, created in the	287
state treasury under section 4735.12 of the Revised Code.	288

(2) If any licensee is cited three times within twelve	289
consecutive months, the superintendent shall initiate disciplinary	290
action pursuant to section 4735.051 of the Revised Code for any	291
subsequent violation that occurs within the same twelve-month	292
period.	293

(3) If a licensee fails to request a hearing within thirty	294
days of the date of service of the citation, or the licensee and	295
the superintendent fail to reach an alternative agreement, the	296
citation shall become final.	297

(4) Unless otherwise indicated, the licensee named in a final	298
citation must meet all requirements contained in the final	299
citation within thirty days of the effective date of that	300
citation.	301

(5) The superintendent shall suspend automatically a	302
licensee's license if the licensee fails to comply with division	303
(C)(4) of this section.	304

(D) A real estate broker or salesperson obtaining the	305
signature of a party to a listing or other agreement involved in a	306
real estate transaction shall furnish a copy of the listing or	307
other agreement to the party immediately after obtaining the	308
party's signature. Every broker's office shall prominently display	309
in the same immediate area as licenses are displayed a statement	310
that it is illegal to discriminate against any person because of	311
race, color, religion, sex, familial status as defined in section	312
4112.01 of the Revised Code, national origin, disability as	313
defined in that section, or ancestry in the sale or rental of	314
housing or residential lots, in advertising the sale or rental of	315
housing, in the financing of housing, or in the provision of real	316
estate brokerage services and that blockbusting also is illegal.	317
The statement shall bear the United States department of housing	318
and urban development equal housing logo, shall contain the	319
information that the broker and the broker's salespersons are	320
licensed by the division of real estate and that the division can	321
assist with any consumer complaints or inquiries, and shall	322
explain the provisions of section 4735.12 of the Revised Code. The	323
statement shall provide the division's address and telephone	324
number. The Ohio real estate commission shall provide by rule for	325
the wording and size of the statement. The pamphlet required under	326
section 4735.03 of the Revised Code shall contain the same	327
statement that is required on the statement displayed as provided	328
in this section and shall be made available by real estate brokers	329
and salespersons to their clients. The commission shall provide	330
the wording and size of the pamphlet.	331

Sec. 4735.18.  (A) Subject to section 4735.32 of the Revised	332
Code, the superintendent of real estate, upon the superintendent's	333
own motion, may investigate the conduct of any licensee. Subject	334
to section 4735.32 of the Revised Code, the Ohio real estate	335
commission shall, pursuant to section 4735.051 of the Revised	336
Code, impose disciplinary sanctions upon any licensee who, whether	337
or not acting in the licensee's capacity as a real estate broker	338
or salesperson, or in handling the licensee's own property, is	339
found to have been convicted of a felony or a crime of moral	340
turpitude, and shall, pursuant to section 4735.051 of the Revised	341
Code, impose disciplinary sanctions upon any licensee who, in the	342
licensee's capacity as a real estate broker or salesperson, or in	343
handling the licensee's own property, is found guilty of:	344

(1) Knowingly making any misrepresentation;

345

(2) Making any false promises with intent to influence,	346
persuade, or induce;	347

(3) A continued course of misrepresentation or the making of	348
false promises through agents, salespersons, advertising, or	349
otherwise;	350

(4) Acting for more than one party in a transaction except as	351
permitted by and in compliance with section 4735.71 of the Revised	352
Code;	353

(5) Failure within a reasonable time to account for or to	354
remit any money coming into the licensee's possession which	355
belongs to others;	356

(6) Dishonest or illegal dealing, gross negligence,	357
incompetency, or misconduct;	358

(7)(a) By final adjudication by a court, a violation of any	359
municipal or federal civil rights law relevant to the protection	360
of purchasers or sellers of real estate or, by final adjudication	361
by a court, any unlawful discriminatory practice pertaining to the	362
purchase or sale of real estate prohibited by Chapter 4112. of the	363
Revised Code, provided that such violation arose out of a	364
situation wherein parties were engaged in bona fide efforts to	365
purchase, sell, or lease real estate, in the licensee's practice	366
as a licensed real estate broker or salesperson;	367

(b) A second or subsequent violation of any unlawful	368
discriminatory practice pertaining to the purchase or sale of real	369
estate prohibited by Chapter 4112. of the Revised Code or any	370
second or subsequent violation of municipal or federal civil	371
rights laws relevant to purchasing or selling real estate whether	372
or not there has been a final adjudication by a court, provided	373
that such violation arose out of a situation wherein parties were	374
engaged in bona fide efforts to purchase, sell, or lease real	375
estate. For any second offense under this division, the commission	376
shall suspend for a minimum of two months or revoke the license of	377
the broker or salesperson. For any subsequent offense, the	378
commission shall revoke the license of the broker or salesperson.	379

(8) Procuring a license under this chapter, for the licensee	380
or any salesperson by fraud, misrepresentation, or deceit;	381

(9) Having violated or failed to comply with any provision of	382
sections 4735.51 to 4735.74 of the Revised Code or having	383
willfully disregarded or violated any other provisions of this	384
chapter;	385

(10) As a real estate broker, having demanded, without	386
reasonable cause, other than from a broker licensed under this	387
chapter, a commission to which the licensee is not entitled, or,	388
as a real estate salesperson, having demanded, without reasonable	389
cause, a commission to which the licensee is not entitled;	390

(11) Except as permitted under section 4735.20 of the Revised	391
Code, having paid commissions or fees to, or divided commissions	392
or fees with, anyone not licensed as a real estate broker or	393
salesperson under this chapter or anyone not operating as an	394
out-of-state commercial real estate broker or salesperson under	395
section 4735.022 of the Revised Code;	396

(12) Having falsely represented membership in any real estate	397
professional association of which the licensee is not a member;	398

(13) Having accepted, given, or charged any undisclosed	399
commission, rebate, or direct profit on expenditures made for a	400
principal;	401

(14) Having offered anything of value other than the	402
consideration recited in the sales contract as an inducement to a	403
person to enter into a contract for the purchase or sale of real	404
estate or having offered real estate or the improvements on real	405
estate as a prize in a lottery or scheme of chance;	406

(15) Having acted in the dual capacity of real estate broker	407
and undisclosed principal, or real estate salesperson and	408
undisclosed principal, in any transaction;	409

(16) Having guaranteed, authorized, or permitted any person	410
to guarantee future profits which may result from the resale of	411
real property;	412

(17) Having placed a sign on any property offering it for	413
sale or for rent without the consent of the owner or the owner's	414
authorized agent;	415

(18) Having induced any party to a contract of sale or lease	416
to break such contract for the purpose of substituting in lieu of	417
it a new contract with another principal;	418

(19) Having negotiated the sale, exchange, or lease of any	419
real property directly with an ownera seller, purchaser, lessor,	420
or tenant knowing that such ownerseller, purchaser, lessor, or	421
tenant had a written outstanding contract granting exclusive	422
agency in connection with such property to another real estate	423
brokeris represented by another broker under a written exclusive	424
agency agreement, exclusive right to sell or lease listing	425
agreement, or exclusive purchaser agency agreement with respect to	426
such property except as provided for in section 4735.75 of the	427
Revised Code;	428

(20) Having offered real property for sale or for lease	429
without the knowledge and consent of the owner or the owner's	430
authorized agent, or on any terms other than those authorized by	431
the owner or the owner's authorized agent;	432

(21) Having published advertising, whether printed, radio,	433
display, or of any other nature, which was misleading or	434
inaccurate in any material particular, or in any way having	435
misrepresented any properties, terms, values, policies, or	436
services of the business conducted;	437

(22) Having knowingly withheld from or inserted in any	438
statement of account or invoice any statement that made it	439
inaccurate in any material particular;	440

(23) Having published or circulated unjustified or	441
unwarranted threats of legal proceedings which tended to or had	442
the effect of harassing competitors or intimidating their	443
customers;	444

(24) Having failed to keep complete and accurate records of	445
all transactions for a period of three years from the date of the	446
transaction, such records to include copies of listing forms,	447
earnest money receipts, offers to purchase and acceptances of	448
them, records of receipts and disbursements of all funds received	449
by the licensee as broker and incident to the licensee's	450
transactions as such, and records required pursuant to divisions	451
(C)(4) and (5) of section 4735.20 of the Revised Code, and any	452
other instruments or papers related to the performance of any of	453
the acts set forth in the definition of a real estate broker;	454

(25) Failure of a real estate broker or salesperson to	455
furnish all parties involved in a real estate transaction true	456
copies of all listings and other agreements to which they are a	457
party, at the time each party signs them;	458

(26) Failure to maintain at all times a special or trust bank	459
account in a depository located in this state. The account shall	460
be noninterest-bearing, separate and distinct from any personal or	461
other account of the broker, and, except as provided in division	462
(A)(27) of this section, shall be used for the deposit and	463
maintenance of all escrow funds, security deposits, and other	464
moneys received by the broker in a fiduciary capacity. The name,	465
account number, if any, and location of the depository wherein	466
such special or trust account is maintained shall be submitted in	467
writing to the superintendent. Checks drawn on such special or	468
trust bank accounts are deemed to meet the conditions imposed by	469
section 1349.21 of the Revised Code.	470

(27) Failure to maintain at all times a special or trust bank	471
account in a depository in this state, to be used exclusively for	472
the deposit and maintenance of all rents, security deposits,	473
escrow funds, and other moneys received by the broker in a	474
fiduciary capacity in the course of managing real property. This	475
account shall be separate and distinct from any other account	476
maintained by the broker. The name, account number, and location	477
of the depository shall be submitted in writing to the	478
superintendent. This account may earn interest, which shall be	479
paid to the property owners on a pro rata basis.	480

Division (A)(27) of this section does not apply to brokers	481
who are not engaged in the management of real property on behalf	482
of real property owners.	483

(28) Having failed to put definite expiration dates in all	484
written agency agreements to which the broker is a party;	485

(29) Having an unsatisfied final judgment in any court of	486
record against the licensee arising out of the licensee's conduct	487
as a licensed broker or salesperson;	488

(30) Failing to render promptly upon demand a full and	489
complete statement of the expenditures by the broker or	490
salesperson of funds advanced by or on behalf of a party to a real	491
estate transaction to the broker or salesperson for the purpose of	492
performing duties as a licensee under this chapter in conjunction	493
with the real estate transaction;	494

(31) Failure within a reasonable time, after the receipt of	495
the commission by the broker, to render an accounting to and pay a	496
real estate salesperson the salesperson's earned share of it;	497

(32) Performing any service for another constituting the	498
practice of law, as determined by any court of law;	499

(33) Having been adjudicated incompetent for the purpose of	500
holding the license by a court, as provided in section 5122.301 of	501
the Revised Code. A license revoked or suspended under this	502
division shall be reactivated upon proof to the commission of the	503
removal of the disability.	504

(34) Having authorized or permitted a person to act as an	505
agent in the capacity of a real estate broker, or a real estate	506
salesperson, who was not then licensed as a real estate broker or	507
real estate salesperson under this chapter or who was not then	508
operating as an out-of-state commercial real estate broker or	509
salesperson under section 4735.022 of the Revised Code;	510

(35) Having knowingly inserted or participated in inserting	511
any materially inaccurate term in a document, including naming a	512
false consideration;	513

(36) Having failed to inform the licensee's client of the	514
existence of an offer or counter offercounteroffer or having	515
failed to present an offer or counter offercounteroffer in a	516
timely manner, unless otherwise instructed by the client, provided	517
the instruction of the client does not conflict with any state or	518
federal law.	519

(B) Whenever the commission, pursuant to section 4735.051 of	520
the Revised Code, imposes disciplinary sanctions for any violation	521
of this section, the commission also may impose such sanctions	522
upon the broker with whom the salesperson is affiliated if the	523
commission finds that the broker had knowledge of the	524
salesperson's actions that violated this section.	525

(C) The commission shall, pursuant to section 4735.051 of the	526
Revised Code, impose disciplinary sanctions upon any foreign real	527
estate dealer or salesperson who, in that capacity or in handling	528
the dealer's or salesperson's own property, is found guilty of any	529
of the acts or omissions specified or comprehended in division (A)	530
of this section insofar as the acts or omissions pertain to	531
foreign real estate. If the commission imposes such sanctions upon	532
a foreign real estate salesperson for a violation of this section,	533
the commission also may suspend or revoke the license of the	534
foreign real estate dealer with whom the salesperson is affiliated	535
if the commission finds that the dealer had knowledge of the	536
salesperson's actions that violated this section.	537

(D) The commission may suspend, in whole or in part, the	538
imposition of the penalty of suspension of a license under this	539
section.	540

(E) The commission immediately shall notify the real estate	541
appraiser board of any disciplinary action taken under this	542
section against a licensee who also is a state-certified real	543
estate appraiser under Chapter 4763. of the Revised Code.	544

Sec. 4735.51.  As used in sections 4735.51 to 4735.74 of the	545
Revised Code:	546

(A) "Agency" and "Agency relationship" mean a relationship in	547
which a licensee represents another person in a real estate	548
transaction.	549

(B) "Agency agreement" means a contract between a licensee	550
and a client in which the client promises to pay the broker a	551
valuable consideration, or agrees that the licensee may receive a	552
valuable consideration from another, for performing an act that	553
requires a real estate license under this chapter.	554

(C) "Agent" and "real estate agent" mean a person licensed by	555
this chapter to represent another in a real estate transaction.	556

(D) "Affiliated licensee" means a real estate broker or a	557
real estate salesperson licensed by this chapter who is affiliated	558
with a brokerage.	559

(E) "Brokerage" means a corporation, partnership, limited	560
partnership, association, limited liability company, limited	561
liability partnership, or sole proprietorship issued a broker's	562
license. "Brokerage" includes the affiliated licensees who have	563
been assigned management duties that include supervision of	564
licensees whose duties may conflict with those of other affiliated	565
licensees.	566

(F) "Client" means a person who has entered into an agency	567
relationship with a licensee.	568

(G) "Confidential information" means all information that a	569
client directs to be kept confidential or that if disclosed would	570
have an adverse effect on the client's position in the real estate	571
transaction, except to the extent the agent is required by law to	572
disclose such information, and all information that is required by	573
law to be kept confidential.	574

(H) "Dual agency relationship" means any of the dual agency	575
relationships set forth in section 4735.70 of the Revised Code.	576

(I) "In-company transaction" means a real estate transaction	577
in which the purchaser and seller are both represented by the same	578
brokerage.	579

(J) "Licensee" means any individual licensed as a real estate	580
broker or salesperson by the Ohio real estate commission pursuant	581
to this chapter.	582

(K) "Management level licensee" means a licensee who is	583
employed by or affiliated with a real estate broker and who has	584
supervisory responsibility over other licensees employed by or	585
affiliated with that real estate broker.	586

(L) "Purchaser" means a party in a real estate transaction	587
who is the potential transferee of property. "Purchaser" includes	588
a person seeking to buy property and a person seeking to rent	589
property as a tenant or lessee.	590

(M) "Real estate transaction" means any act that is described	591
in division (A) of section 4735.01 of the Revised Code or that is	592
related to the execution of an act described in that section.	593

(N) "Seller" means a party in a real estate transaction who	594
is the potential transferor of property. "Seller" includes an	595
owner of property who is seeking to sell the property and a	596
landlord who is seeking to rent or lease property to another	597
person.	598

(O) "Subagency" and "subagency relationship" mean an agency	599
relationship in which a licensee acts for another licensee in	600
performing duties for the client of that licensee.	601

(P)(O) "Timely" means as soon as possible under the	602
particular circumstances.	603

Sec. 4735.621. (A) The duties required of a licensee under	604
section 4735.62 of the Revised Code may not be waived by a client.	605

(B) A licensee shall perform the duties required under	606
section 4735.63 or 4735.65 of the Revised Code unless the client	607
agrees to waive these duties, and signs a waiver of duties	608
statement pursuant to division (C) of this section.	609

(C) The superintendent of real estate, with the approval of	610
the Ohio real estate commission, shall establish by rule a waiver	611
of duties statement that shall contain the following:	612

(1) The fiduciary duties required of all licensees under	613
section 4735.62 of the Revised Code;	614

(2) A list of those duties contained in section 4735.63 or	615
4735.65 of the Revised Code, which shall be set forth in a manner	616
that allows for the parties to indicate which of those duties are	617
being waived;	618

(3) A statement that no other licensee is required to perform	619
the waived duty on behalf of the client;	620

(4) A statement that legal counsel or other professionals may	621
be hired by the client;	622

(5) A place for the client and licensee to sign and date the	623
statement.	624

Sec. 4735.63.  (A) In representing a seller in an agency	625
relationship, a licensee shall promote the interest of the client	626
by doing all of the following:	627

(1) SeekingSeek a purchase offer at a price and with terms	628
acceptable to the clientseller. Unless the clientseller so	629
directs, the licensee is not obligated to seek additional offers	630
if the property is subject to a contract of sale, lease, or letter	631
of intent to lease;	632

(2) PresentingAccept delivery of and present any purchase	633
offer to the clientseller in a timely manner, even if the	634
property is subject to a contract of sale, lease, or letter of	635
intent to lease;	636

(3) Prior to presenting the seller an offer to purchase,	637
providing the seller with a copy of any agency disclosure form	638
signed by the purchaserWithin the scope of knowledge required for	639
licensure, answer the seller's questions and provide information	640
to the seller regarding any offers or counteroffers;	641

(4) Assist the seller in developing, communicating, and	642
presenting offers or counteroffers;	643

(5) Within the scope of knowledge required for licensure,	644
answer the seller's questions regarding the steps the seller must	645
take to fulfill the terms of any contract.	646

(B) A licensee does not breach any duty or obligation to a	647
seller with whom the licensee has an agency relationship by	648
showing alternative properties to a prospective purchaser or by	649
acting as an agent or subagent for other sellers.	650

(C) Nothing in this section shall be construed as permitting	651
a licensee to perform any act or service that constitutes the	652
practice of law.	653

Sec. 4735.65.  (A) In representing a purchaser in an agency	654
relationship, a licensee shall represent the interests of the	655
purchaser by doing each of the following:	656

(1) SeekingSeek a property at a price and with purchase or	657
lease terms acceptable to the purchaser. Unless the client so	658
directs, the licensee is not obligated to seek additional purchase	659
or lease possibilities if the purchaser is a party to a contract	660
to purchase property, or has entered into a lease or has extended	661
a letter of intent to lease.	662

(2) PresentingWithin the scope of knowledge required for	663
licensure, answer the purchaser's questions and provide	664
information to the purchaser regarding any offers or	665
counteroffers;	666

(3) Assist the purchaser in developing, communicating, and	667
presenting offers or counteroffers;	668

(4) Present any offer to purchase or lease to the seller or	669
the seller's agent in a timely manner, even if the property is	670
subject to a contract of sale, lease, or letter of intent to	671
lease, and accept delivery of and present any counteroffers to the	672
purchaser in a timely manner;	673

(5) Within the scope of knowledge required for licensure,	674
answer the purchaser's questions regarding the steps the purchaser	675
must take to fulfill the terms of any contract.	676

(B) A licensee does not breach any duty or obligation to the	677
purchaser by showing the same properties to other purchasers or by	678
acting as an agent or subagent for other purchasers, or as an	679
agent or subagent for sellers, except that any dual agency	680
relationship must be disclosed to a client pursuant to section	681
4735.71 of the Revised Code.	682

(C) Nothing in this section shall be construed as permitting	683
a licensee to perform any act or service that constitutes the	684
practice of law.	685

Sec. 4735.75. (A) A broker who has the exclusive authority to	686
represent a client under a written exclusive agency agreement,	687
exclusive right to sell agreement, or exclusive purchaser agency	688
agreement may authorize other licensees to negotiate directly with	689
that client. The authorization shall be in writing and the broker	690
shall comply with the requirements of section 4735.621 of the	691
Revised Code.	692

(B) A licensee who negotiates directly with a seller,	693
purchaser, lessor, or tenant pursuant to a written authorization	694
as described in division (A) of this section does not violate	695
division (A)(19) of section 4735.18 of the Revised Code and	696
negotiations conducted by a licensee pursuant to the authorization	697
shall not create or imply an agency relationship between that	698
licensee and the client of that exclusive broker.	699

(C) As used in this section and division (A)(19) of section	700
4735.18 of the Revised Code, "negotiate" means any the following:	701

(1) Delivering or communicating an offer, counteroffer, or	702
proposal;	703

(2) Discussing or reviewing the terms of any offer,	704
counteroffer, or proposal;	705

(3) Facilitating communication regarding an offer,	706
counteroffer, or proposal and preparing any response as directed.	707

Sec. 4737.10. (A) Before a license is granted or renewed	708
under sections 4737.05 to 4737.12 of the Revised Code, the sheriff	709
of each county, or, if the sheriff so designates, a township	710
policemanpolice officer or constable, and the chief of police of	711
each municipal corporation shall inspect the junk yard within his	712
the sheriff's, police officer's, constable's, or chief's	713
respective jurisdiction to determine if it complies with sections	714
4737.05 to 4737.12 of the Revised Code. The sheriff, or a township	715
policemanpolice officer or constable, or chief of police shall	716
submit a written report of such examination to the county auditor	717
of the county or the village solicitor or city director of law of	718
the municipal corporation wherein such junk yard is located.	719

(B) In addition, twice annually the sheriff of each county,	720
or, if the sheriff so designates, a township policemanpolice	721
officer or constable, and the chief of police of each municipal	722
corporation shall inspect every junk yard that is located within	723
histhe sheriff's, police officer's, constable's, or chief's	724
jurisdiction and for which a license has been issued under	725
sections 4737.05 to 4737.12 of the Revised Code, to obtain	726
information with regard to whether the licensee's activity has	727
been and is being conducted in accordance with sections 4737.01 to	728
4737.12 of the Revised Code. The sheriff, township policeman	729
police officer or constable, or the chief of police shall submit a	730
written report of each such examination to the county auditor of	731
the county or the village solicitor or city director of law of the	732
municipal corporation wherein such junk yard is located.	733

The sheriff, township policemanpolice officer or constable,	734
or the chief of police shall, for the purpose of these	735
examinations, have free access to the grounds and buildings used	736
or proposed for use in the conduct of the junk yard activity by	737
the applicant or the licensee.	738

Such inspections may be made at any time, at the option of	739
the sheriff, township policemanpolice officer or constable, or	740
the chief of police during the regular work hours of the licensee	741
or within the hours of eight a.m. and five p.m. Monday through	742
Friday.	743

The director of transportation may also inspect junk yards	744
adjacent to state highways to obtain information with regard to	745
whether the licensee's activity is being conducted in accordance	746
with sections 4737.01 to 4737.12 of the Revised Code. If such	747
inspection indicates that there is a violation of any of the	748
provisions of such sections the director shall advise the attorney	749
general of such alleged violations and request himthe attorney	750
general to take proper legal action.	751

(C) Whenever it is determined upon any semiannual inspection	752
made under this section that a junk yard is not being conducted in	753
accordance with the requirements of sections 4737.01 to 4737.12 of	754
the Revised Code, the sheriff of the county, township policeman	755
police officer or constable, or the chief of police of the	756
municipal corporation within whose jurisdiction the junk yard is	757
located, shall immediately notify the owner of the junk yard of	758
such fact. The notice shall be sent to the owner by registered	759
mail, and shall detail the areas which are not in conformity with	760
the requirements of sections 4737.01 to 4737.12 of the Revised	761
Code. A copy of the notice shall also be sent to the auditor of	762
the county, or the village solicitor or city director of law of	763
the municipal corporation within which the junk yard is located.	764

(D) Any owner of a junk yard who receives a notice as	765
provided in this section shall, within sixty days after the	766
mailing of the notice, undertake and complete such changes or	767
improvements as are necessary to conform the junk yard to the	768
requirements of sections 4737.01 to 4737.12 of the Revised Code.	769
At the expiration of the sixty-day period, the sheriff, township	770
policemanpolice officer or constable, or the chief of police	771
shall make a further inspection of the junk yard, and if the	772
required changes or improvements have not been made, the sheriff,	773
township police officer or constable, or the chief of the police	774
shall send notice of that noncompliance along with an order to	775
suspend the owner's license to the chief executive officer of the	776
municipality or the county auditor of the county in which the	777
licensee's junk yard is located. After receiving that notice and	778
order, the chief executive officer or county auditor, as	779
appropriate, shall suspend the owner's license for ninety days.	780
While the owner's license is suspended, the owner shall undertake	781
and complete such changes or improvements necessary to conform the	782
junk yard to the requirements of sections 4737.01 to 4737.12 of	783
the Revised Code.	784

(E) An owner whose license is suspended pursuant to division	785
(D) of this section may appeal the suspension in accordance with	786
Chapter 2506. of the Revised Code.	787

At any time during the ninety days in which an owner's	788
license is suspended, the owner may apply to the sheriff, township	789
police officer or constable, or the chief of the police to have	790
the junk yard inspected. If, after the inspection, the sheriff,	791
township police officer or constable, or the chief of the police	792
determines that the junk yard conforms to the requirements of	793
sections 4737.01 to 4737.12 of the Revised Code, the sheriff,	794
township police officer or constable, or the chief of the police,	795
as appropriate, shall send notice of that compliance along with an	796
order to remove the suspension and reinstate the owner's license	797
to the chief executive officer of the municipality or the county	798
auditor of the county in which the licensee's junk yard is	799
located. After receiving that notice and order, the chief	800
executive officer or the county auditor, as appropriate, shall	801
remove the suspension and reinstate the owner's license.	802

(F)(1) An owner may sell junk while the owner's license is	803
suspended.	804

(2) No licensee may accept junk for future resale during the	805
time that the licensee's license is suspended under division (D)	806
of this section.	807

(G) If an owner's license has not been reinstated under	808
division (E) of this section prior to the end of a ninety-day	809
suspension, the sheriff, township police officer or constable, or	810
the chief of police shall make a further inspection of the junk	811
yard. If the owner has not made the required changes or	812
improvements, the sheriff, township police officer or constable,	813
or chief of police shall send notice of that noncompliance along	814
with an order to revoke the owner's license to the chief executive	815
officer of the municipality or the county auditor of the county in	816
which the licensee's junk yard is located. After receiving that	817
notice and order, the chief executive officer or the county	818
auditor shall revoke the owner's license in accordance with the	819
procedures specified in section 4737.07 of the Revised Code. In	820
addition to having the licensee's license revoked, the owner of	821
the junk yard shall be subject to a tax of twentyone hundred	822
dollars for each day after revocation that the violation	823
continues.	824

The sheriff, township policemanpolice officer or constable,	825
or the chief of police shall certify a return of the imposition of	826
said tax thereon to the county auditor, who shall enter the same	827
as a tax upon the property and against the persons upon which or	828
whom the lien was imposed as and when other taxes are entered. The	829
provisions of the laws relating to the collection of taxes in this	830
state, the delinquency thereof, and sale of property for taxes	831
shall govern in the collection of the tax prescribed in this	832
section insofar as the same are applicable.	833

Sec. 4737.99.  (A) WhoeverExcept as specified in division	834
(B) of this section, whoever violates sections 4737.01 to 4737.11,	835
inclusive, of the Revised Code, shall be fined not less than	836
twenty-five nor more than one thousand dollars and the costs of	837
prosecution.	838

(B) Whoever violates division (F)(2) of section 4737.10 of	839
the Revised Code is guilty of a misdemeanor of the fourth degree.	840

Sec. 4738.16.  (A) Chapter 4738. of the Revised Code does not	841
apply to a scrap metal processor engaged primarily in the	842
acquisition, processing, and shipment of ferrous and nonferrous	843
scrap, or who receives dismantled salvage motor vehicles, used	844
motor vehicles, or motor vehicle parts as scrap metal for the	845
purpose of recycling the motor vehicles or parts for their	846
metallic content, the end product of which is the production of	847
material for recycling and remelting purposes for mills,	848
foundries, smelters, and refiners.	849

(B) A scrap metal processor who receives a motor vehicle from	850
the owner described on the certificate of title shall within ten	851
days mark the certificate "TO BE CANCELED," keep a record of the	852
cancellation, and forward the certificate to the clerk of the	853
court who issued it. The clerk shall notify the registrar of motor	854
vehicles of such cancellation. The scrap metal processor shall	855
keep the record of the cancellation for three years after creating	856
the record. The record shall include a copy of the canceled title,	857
and if the seller of the motor vehicle is not the titled owner,	858
the record also shall include all of the following information	859
about the seller:	860

(1) The seller's name and address;

861

(2) An identification number from the seller's driver's	862
license, military identification, or other state issued license;	863

(3) A physical description of the seller;

864

(4) The seller's expenditures for the motor vehicle.

865

The scrap metal processor shall make a record of a	866
cancellation available to any requesting law enforcement agency	867
during the scrap metal processor's normal business hours.	868

Section 2. That existing sections 4735.01, 4735.16, 4735.18,	869
4735.51, 4735.63, 4735.65, 4737.10, 4737.99, and 4738.16 of the	870
Revised Code are hereby repealed.	871