WSR 04-03-037

PROPOSED RULES

DEPARTMENT OF LICENSING


[ Filed January 15, 2004, 10:18 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 03-21-016.

Title of Rule: Will amend WAC 308-124C-030.

Purpose: Will amend rule to allow for newer technology to store records and to allow for real estate brokers to maintain records at a distant location from their business license address.

Statutory Authority for Adoption: RCW 18.85.040(1).

Statute Being Implemented: RCW 18.85.310(1), 18.85.230(17).

Summary: To allow for new technology in the storage of real estate broker records, such as permanent storage media like optical discs. These records then could be stored at a distant location from the broker's business address so long as these are readily retrievable.

Reasons Supporting Proposal: To allow for newer technology in record-keeping mediums within the real estate brokerage record-keeping requirements.

Name of Agency Personnel Responsible for Drafting: Jana L. Jones, Department of Licensing, Black Lake Complex, P.O. Box 2445, Olympia, WA, (360) 664-6524; Implementation and Enforcement: DOL Real Estate Program, Department of Licensing, Black Lake Complex, P.O. Box 2445, Olympia, WA, (360) 664-6524.

Name of Proponent: Washington State Real Estate Commission and Department of Licensing Real Estate Program, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The rule describes methods for retaining real estate broker transaction records at remote/distant locations from the broker's licensed business address. These methods of record retention allow for newer technology such as optical discs. The records must [be] readily retrievable by the broker for department inspection, as required by statute. This rule change keeps pace with changing technology and business practice, while preserving the same level of consumer protection.

Proposal Changes the Following Existing Rules: It amends the existing rule to allow for newer technology in records retention and retrieval.

No small business economic impact statement has been prepared under chapter 19.85 RCW.

RCW 34.05.328 does not apply to this rule adoption. Department of Licensing is exempt from this law.

Hearing Location: Department of Licensing, Black Lake Building #3, 2000 4th Street, Real Estate Conference Room, 2nd Floor, Olympia, WA, on February 24, at 1:30 p.m.

Assistance for Persons with Disabilities: Contact Jana Jones, TDD (360) 753-1966 or (360) 664-6524.

Submit Written Comments to: Jana L. Jones, Assistant Administrator, Real Estate Program, P.O. Box 2445, Olympia, WA 98507-2445, fax (360) 586-0998, by February 23, 2004.

Date of Intended Adoption: March 23, 2004.

January 9, 2004

Mykel D. Gable

Assistant Director

Business and Professions Division

OTS-6925.1


AMENDATORY SECTION(Amending WSR 98-01-107, filed 12/17/97, effective 1/17/98)

WAC 308-124C-030   Accuracy and accessibility of records.   (1) Accuracy. All required real estate records shall be accurate, posted and kept up to date.

(2) Location. All required real estate records shall be kept at an address where the real estate broker is licensed to maintain a real estate office((. Such)), except physical records of transactions may be stored at one remote facility within the state of Washington. Only transactions that have been closed for at least one year can be maintained at the remote facility. Transactions stored at a different location must be available upon demand of the department and maintained in a manner to be readily retrievable. A listing of all transactions must be maintained at the broker's licensed office for all the transactions stored at the remote facility. All records shall be retained and available for inspection by the director or the director's authorized representative for a minimum of three years. ((While RCW 18.85.230(20) requires the retention of records for three years, licensees should be aware that the applicable statute of limitations may vary from this three-year retention period.))

(3) Alternative storage. Records may be stored on permanent storage media, such as optical disk or microfilm, provided the retrieval process does not permit modification of the documents. Retrieval must be possible at the broker's licensed location and allow for viewing and printing the document in its original form. The permanent media storage shall be nonerasable and prevent changes to the stored documents or records. The broker must maintain equipment at their licensed location in good repair to allow viewing and printing upon demand by the department. The storage media must be indexed to allow for immediate retrieval of all documents.

(4) Responsibility for records. In the case of a corporate, limited liability company, limited liability partnership or partnership brokerage firm, the responsibility imposed by this section shall apply to both the corporation, limited liability company, limited liability partnership or partnership and the natural person designated and licensed to act as broker for the corporation, limited liability company, limited liability partnership or partnership. Prior to issuing a new license indicating a change of designated broker for a corporate, limited liability company, limited liability partnership or partnership licensee, the licensee must submit evidence that the requirements have been satisfied.

(5) Change of broker. A statement signed by both the outgoing designated broker and the incoming designated broker, listing all outstanding client trust liabilities, copies of trust account bank statements and the latest trust account reconciliations and certifying that funds in hand in the trust account maintained by the licensee are adequate to meet these client trust liabilities will satisfy this requirement. The incoming designated broker shall not be deemed responsible for any discrepancy identified in the statement, unless the incoming designated broker contracted to accept such responsibility.

[Statutory Authority: RCW 18.85.040. 98-01-107, 308-124C-030, filed 12/17/97, effective 1/17/98; 87-20-091 (Order PM 683), 308-124C-030, filed 10/7/87; 82-17-039 (Order 130), 308-124C-030, filed 8/13/82; Order RE 120, 308-124C-030, filed 9/20/77; Order RE 114, 308-124C-030, filed 7/2/75.]

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