Bill Text: IL HB5071 | 2009-2010 | 96th General Assembly | Introduced
Bill Title: Amends the Real Estate License Act of 2000. Deletes the definition of "regular employee". Effective immediately.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-03-15 - Rule 19(a) / Re-referred to Rules Committee [HB5071 Detail]
Download: Illinois-2009-HB5071-Introduced.html
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1 | AN ACT concerning professional regulation.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Real Estate License Act of 2000 is amended | |||||||||||||||||||
5 | by changing Section 1-10 as follows:
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6 | (225 ILCS 454/1-10)
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7 | (Section scheduled to be repealed on January 1, 2020)
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8 | Sec. 1-10. Definitions. In this Act, unless the context | |||||||||||||||||||
9 | otherwise requires:
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10 | "Act" means the Real Estate License Act of 2000.
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11 | "Address of Record" means the designated address recorded | |||||||||||||||||||
12 | by the Department in the applicant's or licensee's application | |||||||||||||||||||
13 | file or license file as maintained by the Department's | |||||||||||||||||||
14 | licensure maintenance unit. It is the duty of the applicant or | |||||||||||||||||||
15 | licensee to inform the Department of any change of address, and | |||||||||||||||||||
16 | those changes must be made either through the Department's | |||||||||||||||||||
17 | website or by contacting the Department. | |||||||||||||||||||
18 | "Advisory Council" means the Real Estate Education | |||||||||||||||||||
19 | Advisory Council created
under Section 30-10 of this Act.
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20 | "Agency" means a relationship in which a real estate broker | |||||||||||||||||||
21 | or licensee,
whether directly or through an affiliated | |||||||||||||||||||
22 | licensee, represents a consumer by
the consumer's consent, | |||||||||||||||||||
23 | whether express or implied, in a real property
transaction.
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1 | "Applicant" means any person, as defined in this Section, | ||||||
2 | who applies to
the Department for a valid license as a real | ||||||
3 | estate broker, real estate salesperson, or
leasing agent.
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4 | "Blind advertisement" means any real estate advertisement | ||||||
5 | that does not
include the sponsoring broker's business name and | ||||||
6 | that is used by any licensee
regarding the sale or lease of | ||||||
7 | real estate, including his or her own, licensed
activities, or | ||||||
8 | the hiring of any licensee under this Act. The broker's
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9 | business name in the case of a franchise shall include the | ||||||
10 | franchise
affiliation as well as the name of the individual | ||||||
11 | firm.
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12 | "Board" means the Real Estate Administration and | ||||||
13 | Disciplinary Board of the Department as created by Section | ||||||
14 | 25-10 of this Act.
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15 | "Branch office" means a sponsoring broker's office other | ||||||
16 | than the sponsoring
broker's principal office.
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17 | "Broker" means an individual, partnership, limited | ||||||
18 | liability company,
corporation, or registered limited | ||||||
19 | liability partnership other than a real
estate salesperson or | ||||||
20 | leasing agent who, whether in person or through any media or | ||||||
21 | technology, for another and for compensation, or
with the | ||||||
22 | intention or expectation of receiving compensation, either
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23 | directly or indirectly:
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24 | (1) Sells, exchanges, purchases, rents, or leases real | ||||||
25 | estate.
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26 | (2) Offers to sell, exchange, purchase, rent, or lease |
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1 | real estate.
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2 | (3) Negotiates, offers, attempts, or agrees to | ||||||
3 | negotiate the sale,
exchange, purchase, rental, or leasing | ||||||
4 | of real estate.
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5 | (4) Lists, offers, attempts, or agrees to list real | ||||||
6 | estate for sale,
lease, or exchange.
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7 | (5) Buys, sells, offers to buy or sell, or otherwise | ||||||
8 | deals in options on
real estate or improvements thereon.
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9 | (6) Supervises the collection, offer, attempt, or | ||||||
10 | agreement
to collect rent for the use of real estate.
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11 | (7) Advertises or represents himself or herself as | ||||||
12 | being engaged in the
business of buying, selling, | ||||||
13 | exchanging, renting, or leasing real estate.
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14 | (8) Assists or directs in procuring or referring of | ||||||
15 | leads or prospects, intended to
result in the sale, | ||||||
16 | exchange, lease, or rental of real estate.
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17 | (9) Assists or directs in the negotiation of any | ||||||
18 | transaction intended to
result in the sale, exchange, | ||||||
19 | lease, or rental of real estate.
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20 | (10) Opens real estate to the public for marketing | ||||||
21 | purposes.
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22 | (11) Sells, leases, or offers for sale or lease real | ||||||
23 | estate at
auction.
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24 | "Brokerage agreement" means a written or oral agreement | ||||||
25 | between a sponsoring
broker and a consumer for licensed | ||||||
26 | activities to be provided to a consumer in
return for |
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1 | compensation or the right to receive compensation from another.
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2 | Brokerage agreements may constitute either a bilateral or a | ||||||
3 | unilateral
agreement between the broker and the broker's client | ||||||
4 | depending upon the content
of the brokerage agreement. All | ||||||
5 | exclusive brokerage agreements shall be in
writing.
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6 | "Client" means a person who is being represented by a | ||||||
7 | licensee.
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8 | "Compensation" means the valuable consideration given by | ||||||
9 | one person or entity
to another person or entity in exchange | ||||||
10 | for the performance of some activity or
service. Compensation | ||||||
11 | shall include the transfer of valuable consideration,
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12 | including without limitation the following:
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13 | (1) commissions;
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14 | (2) referral fees;
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15 | (3) bonuses;
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16 | (4) prizes;
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17 | (5) merchandise;
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18 | (6) finder fees;
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19 | (7) performance of services;
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20 | (8) coupons or gift certificates;
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21 | (9) discounts;
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22 | (10) rebates;
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23 | (11) a chance to win a raffle, drawing, lottery, or | ||||||
24 | similar game of chance
not prohibited by any other law or | ||||||
25 | statute;
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26 | (12) retainer fee; or
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1 | (13) salary.
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2 | "Confidential information" means information obtained by a | ||||||
3 | licensee from a
client during the term of a brokerage agreement | ||||||
4 | that (i) was made confidential
by the written request or | ||||||
5 | written instruction of the client, (ii) deals with
the | ||||||
6 | negotiating position of the client, or (iii) is information the | ||||||
7 | disclosure
of which could materially harm the negotiating | ||||||
8 | position of the client, unless
at any time:
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9 | (1) the client permits the disclosure of information | ||||||
10 | given by that client
by word or conduct;
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11 | (2) the disclosure is required by law; or
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12 | (3) the information becomes public from a source other | ||||||
13 | than the licensee.
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14 | "Confidential information" shall not be considered to | ||||||
15 | include material
information about the physical condition of | ||||||
16 | the property.
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17 | "Consumer" means a person or entity seeking or receiving | ||||||
18 | licensed
activities.
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19 | "Continuing education school" means any person licensed by | ||||||
20 | the Department as a school
for continuing education in | ||||||
21 | accordance with Section 30-15 of this Act. | ||||||
22 | "Coordinator" means the Coordinator of Real Estate created | ||||||
23 | in Section 25-15 of this Act.
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24 | "Credit hour" means 50 minutes of classroom instruction in | ||||||
25 | course work that
meets the requirements set forth in rules | ||||||
26 | adopted by the Department.
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1 | "Customer" means a consumer who is not being represented by | ||||||
2 | the licensee but
for whom the licensee is performing | ||||||
3 | ministerial acts.
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4 | "Department" means the Department of Financial and | ||||||
5 | Professional Regulation. | ||||||
6 | "Designated agency" means a contractual relationship | ||||||
7 | between a sponsoring
broker and a client under Section 15-50 of | ||||||
8 | this Act in which one or more
licensees associated with or | ||||||
9 | employed by the broker are designated as agent of
the client.
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10 | "Designated agent" means a sponsored licensee named by a | ||||||
11 | sponsoring broker as
the legal agent of a client, as provided | ||||||
12 | for in Section 15-50 of this Act.
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13 | "Dual agency" means an agency relationship in which a | ||||||
14 | licensee is
representing both buyer and seller or both landlord | ||||||
15 | and tenant in the same
transaction. When the agency | ||||||
16 | relationship is a designated agency, the
question of whether | ||||||
17 | there is a dual agency shall be determined by the agency
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18 | relationships of the designated agent of the parties and not of | ||||||
19 | the sponsoring
broker.
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20 | "Employee" or other derivative of the word "employee", when | ||||||
21 | used to refer to,
describe, or delineate the relationship | ||||||
22 | between a real estate broker and a real
estate salesperson, | ||||||
23 | another real estate broker, or a leasing agent, shall be
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24 | construed to include an independent contractor relationship, | ||||||
25 | provided that a
written agreement exists that clearly | ||||||
26 | establishes and states the relationship.
All responsibilities |
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1 | of a broker shall remain.
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2 | "Escrow moneys" means all moneys, promissory notes or any | ||||||
3 | other type or
manner of legal tender or financial consideration | ||||||
4 | deposited with any person for
the benefit of the parties to the | ||||||
5 | transaction. A transaction exists once an
agreement has been | ||||||
6 | reached and an accepted real estate contract signed or lease
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7 | agreed to by the parties. Escrow moneys includes without | ||||||
8 | limitation earnest
moneys and security deposits, except those | ||||||
9 | security deposits in which the
person holding the security | ||||||
10 | deposit is also the sole owner of the property
being leased and | ||||||
11 | for which the security deposit is being held.
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12 | "Exclusive brokerage agreement" means a written brokerage | ||||||
13 | agreement that provides that the sponsoring broker has the sole | ||||||
14 | right, through one or more sponsored licensees, to act as the | ||||||
15 | exclusive designated agent or representative of the client and | ||||||
16 | that meets the requirements of Section 15-75 of this Act.
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17 | "Inoperative" means a status of licensure where the | ||||||
18 | licensee holds a current
license under this Act, but the | ||||||
19 | licensee is prohibited from engaging in
licensed activities | ||||||
20 | because the licensee is unsponsored or the license of the
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21 | sponsoring broker with whom the licensee is associated or by | ||||||
22 | whom he or she is
employed is currently expired, revoked, | ||||||
23 | suspended, or otherwise rendered
invalid under this Act.
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24 | "Leads" means the name or names of a potential buyer, | ||||||
25 | seller, lessor, lessee, or client of a licensee. | ||||||
26 | "Leasing Agent" means a person who is employed by a real |
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1 | estate broker to
engage in licensed activities limited to | ||||||
2 | leasing residential real estate who
has obtained a license as | ||||||
3 | provided for in Section 5-5 of this Act.
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4 | "License" means the document issued by the Department | ||||||
5 | certifying that the person named
thereon has fulfilled all | ||||||
6 | requirements prerequisite to licensure under this
Act.
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7 | "Licensed activities" means those activities listed in the | ||||||
8 | definition of
"broker" under this Section.
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9 | "Licensee" means any person, as defined in this Section, | ||||||
10 | who holds a
valid unexpired license as a real estate broker, | ||||||
11 | real estate salesperson, or
leasing agent.
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12 | "Listing presentation" means a communication between a | ||||||
13 | real estate broker or
salesperson and a consumer in which the | ||||||
14 | licensee is attempting to secure a
brokerage agreement with the | ||||||
15 | consumer to market the consumer's real estate for
sale or | ||||||
16 | lease.
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17 | "Managing broker" means a broker who has supervisory | ||||||
18 | responsibilities for
licensees in one or, in the case of a | ||||||
19 | multi-office company, more than one
office and who has been | ||||||
20 | appointed as such by the sponsoring broker.
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21 | "Medium of advertising" means any method of communication | ||||||
22 | intended to
influence the general public to use or purchase a | ||||||
23 | particular good or service or
real estate.
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24 | "Ministerial acts" means those acts that a licensee may | ||||||
25 | perform for a
consumer that are informative or clerical in | ||||||
26 | nature and do not rise to the
level of active representation on |
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1 | behalf of a consumer. Examples of these acts
include without | ||||||
2 | limitation (i) responding to phone inquiries by consumers as to
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3 | the availability and pricing of brokerage services, (ii) | ||||||
4 | responding to phone
inquiries from a consumer concerning the | ||||||
5 | price or location of property, (iii)
attending an open house | ||||||
6 | and responding to questions about the property from a
consumer, | ||||||
7 | (iv) setting an appointment to view property, (v) responding to
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8 | questions of consumers walking into a licensee's office | ||||||
9 | concerning brokerage
services offered or particular | ||||||
10 | properties, (vi) accompanying an appraiser,
inspector, | ||||||
11 | contractor, or similar third party on a visit to a property, | ||||||
12 | (vii)
describing a property or the property's condition in | ||||||
13 | response to a consumer's
inquiry, (viii) completing business or | ||||||
14 | factual information for a consumer on an
offer or contract to | ||||||
15 | purchase on behalf of a client, (ix) showing a client
through a | ||||||
16 | property being sold by an owner on his or her own behalf, or | ||||||
17 | (x)
referral to another broker or service provider.
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18 | "Office" means a real estate broker's place of business | ||||||
19 | where the general
public is invited to transact business and | ||||||
20 | where records may be maintained and
licenses displayed, whether | ||||||
21 | or not it is the broker's principal place of
business.
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22 | "Person" means and includes individuals, entities, | ||||||
23 | corporations, limited
liability companies, registered limited | ||||||
24 | liability partnerships, and
partnerships, foreign or domestic, | ||||||
25 | except that when the context otherwise
requires, the term may | ||||||
26 | refer to a single individual or other described entity.
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1 | "Personal assistant" means a licensed or unlicensed person | ||||||
2 | who has been hired
for the purpose of aiding or assisting a | ||||||
3 | sponsored licensee in the performance
of the sponsored | ||||||
4 | licensee's job.
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5 | "Pocket card" means the card issued by the Department to | ||||||
6 | signify that the person named
on the card is currently licensed | ||||||
7 | under this Act.
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8 | "Pre-license school" means a school licensed by the | ||||||
9 | Department offering courses in
subjects related to real estate | ||||||
10 | transactions, including the subjects upon
which an applicant is | ||||||
11 | examined in determining fitness to receive a license.
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12 | "Pre-renewal period" means the period between the date of | ||||||
13 | issue of a
currently valid license and the license's expiration | ||||||
14 | date.
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15 | "Proctor" means any person, including, but not limited to, | ||||||
16 | an instructor, who has a written agreement to administer | ||||||
17 | examinations fairly and impartially with a licensed | ||||||
18 | pre-license school or a licensed continuing education school. | ||||||
19 | "Real estate" means and includes leaseholds as well as any | ||||||
20 | other interest or
estate in land, whether corporeal, | ||||||
21 | incorporeal, freehold, or non-freehold,
including timeshare | ||||||
22 | interests, and whether the real estate is situated in this
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23 | State or elsewhere.
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24 | "Regular employee" means a person working an average of 20 | ||||||
25 | hours per week for a person or entity who would be considered | ||||||
26 | as an employee under the Internal Revenue Service eleven main |
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1 | tests in three categories being behavioral control, financial | ||||||
2 | control and the type of relationship of the parties, formerly | ||||||
3 | the twenty factor test.
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4 | "Salesperson" means any individual, other than a real | ||||||
5 | estate broker or
leasing agent, who is employed by a real | ||||||
6 | estate broker or is associated by
written agreement with a real | ||||||
7 | estate broker as an independent contractor and
participates in | ||||||
8 | any activity described in the definition of "broker" under this
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9 | Section.
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10 | "Secretary" means the Secretary of the Department of | ||||||
11 | Financial and Professional Regulation, or a person authorized | ||||||
12 | by the Secretary to act in the Secretary's stead. | ||||||
13 | "Sponsoring broker" means the broker who has issued a | ||||||
14 | sponsor card to a
licensed salesperson, another licensed | ||||||
15 | broker, or a leasing agent.
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16 | "Sponsor card" means the temporary permit issued by the | ||||||
17 | sponsoring real
estate broker certifying that the real estate | ||||||
18 | broker, real estate salesperson,
or leasing agent named thereon | ||||||
19 | is employed by or associated by written
agreement with the | ||||||
20 | sponsoring real estate broker, as provided for in Section
5-40 | ||||||
21 | of this Act.
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22 | (Source: P.A. 96-856, eff. 12-31-09.)
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23 | Section 99. Effective date. This Act takes effect upon | ||||||
24 | becoming law.
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