General

Article 1. General Provisions

12-1-101. Short title.

The short title of this title 12 is the “Professions and Occupations Act”.

History. Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 613, § 1, effective October 1.

12-1-102. Scope of article.

This article 1 applies to every article in this title 12 except to the extent otherwise specified in another article of this title 12.

History. Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 613, § 1, effective October 1.

12-1-103. Definitions.

As used in this title 12, unless the context otherwise requires:

  1. “Department” means the department of regulatory agencies created in section 24-1-122.
  2. “Executive director” means the executive director of the department or the executive director’s designee.
  3. “Profession or occupation”, “profession”, or “occupation” means an activity subject to regulation by a part or article of this title 12.

History. Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 613, § 1, effective October 1.

Division of Real Estate

Article 10. Real Estate

Editor’s note: This title 12 was repealed and reenacted, with relocations, in 2019. This article 10 was numbered as parts 1, 2, 4, 6, 7, 8, and 9 of article 61 of this title 12 prior to 2019. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated. For a detailed comparison of this title 12, see the comparative tables located in the back of the index or https://leg.colorado.gov/sites/default/files/images/olls/title-12-2019-table.pdf.

Cross references:

For the penalty for selling land twice, see § 18-5-302.

Part 1. Common Definitions

12-10-101. Definitions.

As used in this article 10, unless the context otherwise requires:

  1. “Director” means the director of the division of real estate.
  2. “Division” means the division of real estate.
  3. “HOA” or “homeowners’ association” means an association or unit owners’ association formed before, on, or after July 1, 1992, as part of a common interest community as defined in section 38-33.3-103.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 614, § 1, effective October 1.

Editor’s note: Subsection (1) is similar to former §§ 12-61-702 (7) and 12-61-902 (3); subsection (2) is similar to former §§ 12-61-702 (8) and 12-61-902 (4); and subsection (3) is similar to former §§ 12-61-101 (1.2) and 12-61-401 (2.5), as those sections existed prior to 2019, and the former § 12-10-101 was relocated to § 12-110-101.

Part 2. Brokers and Salespersons

Cross references:

For the exemption of real estate brokers and sales representatives from certain provisions of the “Colorado Securities Act”, see §§ 11-51-402 (3) and 11-51-405 (2).

12-10-201. Definitions.

As used in this part 2, unless the context otherwise requires:

  1. “Commission” means the real estate commission created in section 12-10-206.
  2. “Employing real estate broker” or “employing broker” means a broker who is shown in commission records as employing or engaging another broker.
  3. “Limited liability company” shall have the same meaning as it is given in section 7-80-102 (7).
  4. “Option dealer” means any person, firm, partnership, limited liability company, association, or corporation that, directly or indirectly, takes, obtains, or uses an option to purchase, exchange, rent, or lease real property or any interest therein with the intent or for the purpose of buying, selling, exchanging, renting, or leasing the real property or interest therein to another or others, whether or not the option is in that person’s or its name and whether or not title to said property passes through the name of the person, firm, partnership, limited liability company, association, or corporation in connection with the purchase, sale, exchange, rental, or lease of the real property or interest therein.
  5. “Partnership” includes, but is not limited to, a registered limited liability partnership.
    1. “Real estate broker” or “broker” means any person, firm, partnership, limited liability company, association, or corporation that, in consideration of compensation by fee, commission, salary, or anything of value or with the intention of receiving or collecting such compensation, engages in or offers or attempts to engage in, either directly or indirectly, by a continuing course of conduct or by any single act or transaction, any of the following acts:
      1. Selling, exchanging, buying, renting, or leasing real estate, or interest therein, or improvements affixed thereon;
      2. Offering to sell, exchange, buy, rent, or lease real estate, or interest therein, or improvements affixed thereon;
      3. Selling or offering to sell or exchange an existing lease of real estate, or interest therein, or improvements affixed thereon;
      4. Negotiating the purchase, sale, or exchange of real estate, or interest therein, or improvements affixed thereon;
      5. Listing, offering, attempting, or agreeing to list real estate, or interest therein, or improvements affixed thereon for sale, exchange, rent, or lease;
      6. Auctioning or offering, attempting, or agreeing to auction real estate, or interest therein, or improvements affixed thereon;
      7. Buying, selling, offering to buy or sell, or otherwise dealing in options on real estate, or interest therein, or improvements affixed thereon, or acting as an “option dealer”;
      8. Performing any of the foregoing acts as an employee of, or on behalf of, the owner of real estate, or interest therein, or improvements affixed thereon at a salary or for a fee, commission, or other consideration;
      9. Negotiating or attempting or offering to negotiate the listing, sale, purchase, exchange, or lease of a business or business opportunity or the goodwill thereof or any interest therein when the act or transaction involves, directly or indirectly, any change in the ownership or interest in real estate, or in a leasehold interest or estate, or in a business or business opportunity that owns an interest in real estate or in a leasehold unless the act is performed by any broker-dealer licensed under the provisions of article 51 of title 11 who is actually engaged generally in the business of offering, selling, purchasing, or trading in securities or any officer, partner, salesperson, employee, or other authorized representative or agent thereof; or
      10. Soliciting a fee or valuable consideration from a prospective tenant for furnishing information concerning the availability of real property, including apartment housing that may be leased or rented as a private dwelling, abode, or place of residence. Any person, firm, partnership, limited liability company, association, or corporation or any employee or authorized agent thereof engaged in the act of soliciting a fee or valuable consideration from any person other than a prospective tenant for furnishing information concerning the availability of real property, including apartment housing that may be leased or rented as a private dwelling, abode, or place of residence, is exempt from this definition of “real estate broker” or “broker”. This exemption applies only in respect to the furnishing of information concerning the availability of real property.
    2. “Real estate broker” or “broker” does not apply to any of the following:
      1. Any attorney-in-fact acting without compensation under a power of attorney, duly executed by an owner of real estate, authorizing the consummation of a real estate transaction;
      2. Any public official in the conduct of his or her official duties;
      3. Any receiver, trustee, administrator, conservator, executor, or guardian acting under proper authorization;
      4. Any person, firm, partnership, limited liability company, or association acting personally or a corporation acting through its officers or regularly salaried employees, on behalf of that person or on its own behalf as principal in acquiring or in negotiating to acquire any interest in real estate;
      5. An attorney-at-law in connection with his or her representation of clients in the practice of law;
      6. Any person, firm, partnership, limited liability company, association, or corporation, or any employee or authorized agent thereof, engaged in the act of negotiating, acquiring, purchasing, assigning, exchanging, selling, leasing, or dealing in oil and gas or other mineral leases or interests therein or other severed mineral or royalty interests in real property, including easements, rights-of-way, permits, licenses, and any other interests in real property for or on behalf of a third party, for the purpose of, or facilities related to, intrastate and interstate pipelines for oil, gas, and other petroleum products, flow lines, gas gathering systems, and natural gas storage and distribution;
      7. A natural person acting personally with respect to property owned or leased by that person or a natural person who is a general partner of a partnership, a manager of a limited liability company, or an owner of twenty percent or more of such partnership or limited liability company, and authorized to sell or lease property owned by the partnership or limited liability company, except as provided in subsection (4) of this section;
      8. A corporation with respect to property owned or leased by it, acting through its officers or regularly salaried employees, when the acts are incidental and necessary in the ordinary course of the corporation’s business activities of a non-real-estate nature (but only if the corporation is not engaged in the business of land transactions), except as provided in subsection (4) of this section. For the purposes of this subsection (6)(b)(VIII), the term “officers or regularly salaried employees” means persons regularly employed who derive not less than seventy-five percent of their compensation from the corporation in the form of salaries.
      9. A principal officer of any corporation with respect to property owned by it when the property is located within the state of Colorado and when the principal officer is the owner of twenty percent or more of the outstanding stock of the corporation, except as provided in subsection (4) of this section, but this exemption does not include any corporation selling previously occupied one-family and two-family dwellings;
      10. A sole proprietor, corporation, partnership, or limited liability company, acting through its officers, partners, or regularly salaried employees, with respect to property owned or leased by the sole proprietor, corporation, partnership, or limited liability company on which has been or will be erected a commercial, industrial, or residential building that has not been previously occupied and where the consideration paid for the property includes the cost of the building, payable, less deposit or down payment, at the time of conveyance of the property and building;
        1. A corporation, partnership, or limited liability company acting through its officers, partners, managers, or regularly salaried employees receiving no additional compensation therefor, or its wholly owned subsidiary or officers, partners, managers, or regularly salaried employees thereof receiving no additional compensation, with respect to property located in Colorado that is owned or leased by the corporation, partnership, or limited liability company and on which has been or will be erected a shopping center, office building, or industrial park when such shopping center, office building, or industrial park is sold, leased, or otherwise offered for sale or lease in the ordinary course of the business of the corporation, partnership, limited liability company, or wholly owned subsidiary.
        2. For the purposes of this subsection (6)(b)(XI): “Shopping center” means land on which buildings are or will be constructed that are used for commercial and office purposes around or adjacent to which off-street parking is provided; “office building” means a building used primarily for office purposes; and “industrial park” means land on which buildings are or will be constructed for warehouse, research, manufacturing, processing, or fabrication purposes.
      11. A regularly salaried employee of an owner of an apartment building or complex who acts as an on-site manager of such an apartment building or complex. This exemption applies only in respect to the customary duties of an on-site manager performed for his or her employer.
      12. A regularly salaried employee of an owner of condominium units who acts as an on-site manager of such units. For purposes of this subsection (6)(b)(XIII) only, the term “owner” includes a homeowners’ association formed and acting pursuant to its recorded condominium declaration and bylaws. This exemption applies only in respect to the customary duties of an on-site manager performed for his or her employer.
      13. A real estate broker licensed in another state who receives a share of a commission or finder’s fee on a cooperative transaction from a licensed Colorado real estate broker;
      14. A sole proprietor, corporation, partnership, or limited liability company, acting through its officers, partners, or regularly salaried employees, with respect to property located in Colorado, where the purchaser of the property is in the business of developing land for residential, commercial, or industrial purposes;
      15. Any person, firm, partnership, limited liability company, association, or corporation, or any employee or authorized agent thereof, engaged in the act of negotiating, purchasing, assigning, exchanging, selling, leasing, or acquiring rights-of-way, permits, licenses, and any other interests in real property for, or on behalf, of a third party for the purpose of, or facilities related to:
        1. Telecommunication lines;
        2. Wireless communication facilities;
        3. CATV;
        4. Electric generation, transmission, and distribution lines;
        5. Water diversion, collection, distribution, treatment, and storage or use; and
        6. Transportation, so long as the person, firm, partnership, limited liability company, association, or corporation, including any employee or authorized agent thereof, does not represent any displaced person or entity as an agent thereof in the purchase, sale, or exchange of real estate, or an interest therein, resulting from residential or commercial relocations required under any transportation project, regardless of the source of public funding.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 614, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-101 as it existed prior to 2019; except that § 12-61-101 (1.2) was relocated to § 12-10-101 (3).

ANNOTATION

Law reviews. For article, “Finders and Finders’ Fees”, see 47 Den. L.J. 448 (1970). For article, “Timesharing in C olorado”, see 11 C olo. Law. 2804 (1982). For article, “Colorado ‘Buyer Brokerage’: Does it Still Exist After Velten v. Robertson?”, see 55 U. Colo. L. Rev. 83 (1983). For article, “Implications of Zimmerman on Buyer Brokerage in Colorado”, see 13 Colo. Law. 992 (1984).

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Intent of this section is to align Colorado with the majority rule that requires a finder or business broker to have a real estate broker’s license if the sale of the business includes a transfer of any interest in real estate. Broughall v. Black Forest Dev. Co., 196 Colo. 503, 593 P.2d 314 (1978).

A real estate broker is defined by this section. Cary v. Borden Co., 153 Colo. 344, 386 P.2d 585 (1963).

To be broker, one must find person to whom to sell, or from whom to buy, as case may be. Stank v. Michaelson, 32 Colo. App. 75, 506 P.2d 757 (1973).

Definition of real estate broker to be liberally construed for purposes of determining who may be reimbursed from the real estate recovery fund because of the remedial purposes of that fund. Moeller v. Colo. Real Estate Comm’n, 759 P.2d 697 (Colo. 1988).

“Real estate broker” includes one who offers to negotiate the sale of a business by transfer of stock when the business owns a leasehold interest in real estate. Barton v. Sittner, 723 P.2d 153 (Colo. App. 1986).

A real estate finder falls under the definition of a real estate broker. The definition of a real estate broker does not recognize a distinction between a broker and a finder. The legislative intent is to extend the definition to include the full spectrum of activities related to the sale of real estate. Amedeus Corp. v. McAllister, 232 P.3d 107 (Colo. App. 2009).

One who is merely an employee of a real estate brokerage company, and is engaged in selling the company’s property, is not a real estate broker within the meaning of this section. Black Forest Realty & Inv. Co. v. Clarke, 86 Colo. 454, 282 P. 878 (1929).

Term “real estate broker” includes all activities related to sale of real estate. The legislative history of this section reveals a legislative intent to enlarge and extend the definition of the term “real estate broker” to include the full spectrum of activities related to the sale of real estate. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974).

No distinction between finder and broker. There is no distinction between a finder who merely introduces prospective buyers and sellers and a broker who participates in the details of the transaction. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974).

The phrase “real estate . . . or improvements affixed thereon” in subsection (2)(a) refers to improvements situate on real estate at the time of the sale or attempted sale. Lemler v. Real Estate Comm’n, 38 Colo. App. 489, 558 P.2d 591 (1976).

Transfer of shares of corporation which owned interest in real estate was a transaction involving a change in “ownership or interest . . . in a business . . . which owns an interest in real estate”. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974).

Arranging for a loan that is secured by a deed of trust on real property does not involve a transaction that is an exchange of “an interest” in real estate, for the placing of a lien against property does not constitute a sale or exchange as those terms are used in this section. Bamford v. Cope, 31 Colo. App. 161, 499 P.2d 639 (1972).

Term “negotiate” includes act of bringing two parties together for the purpose of consummating a real estate transaction. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974); Am. W. Motel Brokers, Inc. v. Wu, 697 P.2d 34 (Colo. 1985).

Purpose of the exemptions in subsection (4) is to permit an owner of property to sell it or to permit one to purchase property for his own account without having to procure a real estate license. Seibel v. Colo. Real Estate Comm’n, 34 Colo. App. 415, 530 P.2d 1290 (1974).

The purpose of the exemption set forth in subsection (4)(g) is to allow a private owner of real estate to sell it without having to obtain a real estate license. Richards v. Income Realty & Mtg., Inc., 654 P.2d 864 (Colo. App. 1982).

This section was not intended to be used by a salesman or broker who also happens to own real estate as a means of subverting the purpose of the real estate recovery fund. Richards v. Income Realty & Mtg., Inc., 654 P.2d 864 (Colo. App. 1982).

Mineral tailings lying on real property as waste may not properly be characterized as a severed mineral interest for purposes of subsection (4)(f). Such tailings are deemed to become annexed to the real property over time and thus do not provide justification for use of the exception to licensure requirements for selling a severed mineral interest. Kerr v. Australia Pac. Res., Ltd., 841 P.2d 401 (Colo. App. 1992).

Subsection (4) has no application to the matter of discipline of licensed real estate brokers and salesmen. Seibel v. Colo. Real Estate Comm’n, 34 Colo. App. 415, 530 P.2d 1290 (1974).

Agency status of real estate salesmen. A licensed real estate salesman may not be employed in that capacity by a buyer or seller of real property but may only be employed by, and receive compensation from, his broker. Thus, a real estate salesman who obtains a listing contract from a seller and acts as the procuring cause in a sale or a salesman who represents a buyer in the sale of realty functions only as an agent for the broker and acts as the broker’s representative in the transaction. Becker v. Arnold, 42 Colo. App. 178, 591 P.2d 596 (1979); Olsen v. Bondurant & Co., 759 P.2d 861 (Colo. App. 1988).

Conduct of real estate salespersons employed by real estate brokerage firm constituted active competition and resulted in a breach of their duty of loyalty to conduct business activities solely on behalf of firm. Koontz v. Rosener, 787 P.2d 192 (Colo. App. 1989).

Applied in Schwartz v. Weiner, 94 Colo. 251, 30 P.2d 1110 (1934); Benham v. Heyde, 122 Colo. 233, 221 P.2d 1078 (1950); White v. Brock, 41 Colo. App. 156, 584 P.2d 1224 (1978); Backus v. Apishapa Land & Cattle Co., 44 Colo. App. 59, 615 P.2d 42 (1980).

12-10-202. License required.

It is unlawful for any person, firm, partnership, limited liability company, association, or corporation to engage in the business or capacity of real estate broker in this state without first having obtained a license from the commission. No person shall be granted a license until the person establishes compliance with the provisions of this part 2 concerning education, experience, and testing; truthfulness and honesty and otherwise good moral character; and, in addition to any other requirements of this section, competency to transact the business of a real estate broker in such manner as to safeguard the interest of the public and only after satisfactory proof of the qualifications, together with the application for the license, is filed in the office of the commission. In determining the person’s character, the commission shall be governed by section 24-5-101.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 618, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-102 as it existed prior to 2019.

ANNOTATION

Law reviews. For note, “One Year Review of Contracts”, see 41 Den. L. Ctr. J. 89 (1964). For note, “Rural Poverty and the Law in Southern Colorado”, see 47 Den. L.J. 82 (1970).

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

This section requires one engaged in the business of real estate broker to obtain a license. Cary v. Borden Co., 153 Colo. 344, 386 P.2d 585 (1963).

The purpose of the state real estate broker and salesman license law envisions an employer-employee relationship because it clothes the broker not only with the right to control his salesmen but it also charges him with a duty to do so, and it is the right, duty, and power to control that are important factors in distinguishing a servant or employee from a contractor. Faith Realty & Dev. Co. v. Indus. Comm’n, 170 Colo. 215, 460 P.2d 228 (1969).

Although the real estate licensing statutes have undergone revision, its provisions are still reflective of an employer-employee relationship between a licensed real estate broker and his licensed salesmen. Olsen v. Bounderant and Co., 759 P.2d 861 (Colo. App. 1988).

The licensing statute is penal in nature because of the criminal penalties involved in violation of its terms. Lemler v. Real Estate Comm’n, 38 Colo. App. 489, 558 P.2d 591 (1976).

The provisions of the real estate broker’s licensing statute are not to be extended by implication. Bamford v. Cope, 31 Colo. App. 161, 499 P.2d 639 (1972).

The fact that many real estate brokers arrange loans secured by deeds of trust on real property does not mean that only licensed real estate brokers can perform such services. Bamford v. Cope, 31 Colo. App. 161, 499 P.2d 639 (1972).

The preparation of simple real estate instruments, done without separate charge therefor by licensed real estate brokers only in connection with their established business and in behalf of their customers and in connection with a bona fide real estate transaction which they are handling as brokers, should not be enjoined as unauthorized practices of law. Conway-Bogue Realty Inv. Co. v. Denver Bar Ass’n, 135 Colo. 398, 312 P.2d 998 (1957).

Where services are performed by an unlicensed person in violation of the Colorado licensing statutes, the agreement for the services is illegal and unenforceable. Manufacturer’s Nat’l Bank v. Hartmeister, 411 F.2d 173 (10th Cir. 1969).

Furthermore, in construing the act, courts have held that a sale of realty made by one who acts in the capacity of a broker without a license disentitles him to compensation for his services. Cary v. Borden Co., 153 Colo. 344, 386 P.2d 585 (1963).

One who functions as a real estate broker without obtaining the necessary license cannot recover compensation for his services. Brakhage v. Georgetown Assocs., 33 Colo. App. 385, 523 P.2d 145 (1974).

Where a person who was not a licensed real estate broker nor engaged in the selling of real estate undertook and did sell certain farm lands owned by the seller, he was not allowed to recover the agreed-upon compensation from the seller. Benham v. Heyde, 122 Colo. 233, 221 P.2d 1078 (1950).

Nonlicensed broker precluded from seeking judicial assistance to enforce contract. Since plaintiff was not licensed as a broker or real estate salesman pursuant to this statute, an agreement between owner of mining claims, plaintiff, and defendant regarding the sale of such claims constituted an illegal contract, so that plaintiff was precluded from seeking judicial assistance to enforce the contract. Reed v. Bailey, 34 Colo. App. 20, 524 P.2d 80 (1974).

One who renders services in connection with the sale of a going business and who does not have a real estate broker’s license where realty comprises a part of the assets of such going business may recover a commission. Cary v. Borden Co., 153 Colo. 344, 386 P.2d 585 (1963).

Although an employee was not a licensed real estate broker, but he acted only as an agent for employer and only with reference to property owned by employer or by corporations wholly owned by him, those activities as an employee were not subject to the real estate broker licensing requirements, and the agreement lawfully entitled the employee to the five percent commission on the property sales. Manufacturer’s Nat’l Bank v. Hartmeister, 411 F.2d 173 (10th Cir. 1969).

Formerly under this section, one who engaged in the business, irrespective of actual transactions, must have had a license or incurred the prescribed penalty, but one not in the business needed no license for his protection, though engaging irregularly in isolated transactions. Schwartz v. Weiner, 94 Colo. 251, 30 P.2d 1110 (1934).

There is no requirement that real estate or a leasehold be transferred from one legal entity to another to trigger the licensure requirement. Lieff v. Medco Prof’l Servs., 973 P.2d 1276 (Colo. App. 1998).

Protection of the public is the primary purpose of the commission and to further this purpose agents must use the commission’s standardized forms. Albright v. McDermond, 14 P.3d 318 (Colo. 2000).

Applied in Broughall v. Black Forest Dev. Co., 196 Colo. 503, 593 P.2d 314 (1978); Backus v. Apishapa Land & Cattle Co., 44 Colo. App. 59, 615 P.2d 42 (1980); Holter v. Moore & Co., 702 F.2d 854 (10th Cir. 1983); Am. W. Motel Brokers, Inc. v. Wu, 697 P.2d 34 (Colo. 1985).

12-10-203. Application for license - rules - definition.

    1. All persons desiring to become real estate brokers shall apply to the commission for a license under the provisions of this part 2. Application for a license as a real estate broker shall be made to the commission upon forms or in a manner prescribed by the commission.
      1. Prior to submitting an application for a license pursuant to subsection (1)(a) of this section, each applicant shall submit a set of fingerprints to the Colorado bureau of investigation for the purpose of conducting a state and national fingerprint-based criminal history record check utilizing records of the Colorado bureau of investigation and the federal bureau of investigation. The applicant shall pay the fee established by the Colorado bureau of investigation for conducting the fingerprint-based criminal history record check to the bureau. Upon completion of the criminal history record check, the bureau shall forward the results to the commission. The commission shall acquire a name-based criminal history record check, as defined in section 22-2-119.3 (6)(d), for an applicant who has twice submitted to a fingerprint-based criminal history record check and whose fingerprints are unclassifiable or when the results of a fingerprint-based criminal history record check of an applicant performed pursuant to this subsection (1)(b)(I) reveal a record of arrest without a disposition. The applicant shall pay the costs associated with a name-based criminal history record check.
      2. For purposes of this subsection (1)(b), “applicant” means an individual, or any person designated to act as broker for any partnership, limited liability company, or corporation pursuant to subsection (6) of this section.
  1. Every real estate broker licensed under this part 2 shall maintain a place of business within this state, except as provided in section 12-10-208. In case a real estate broker maintains more than one place of business within the state, the broker shall be responsible for supervising all licensed activities originating in the offices.
  2. The commission is authorized by this section to require and procure any such proof as is necessary in reference to the truthfulness, honesty, and good moral character of any applicant for a real estate broker’s license or, if the applicant is a partnership, limited liability company, or corporation, of any partner, manager, director, officer, member, or stockholder if the person has, either directly or indirectly, a substantial interest in the applicant prior to the issuance of the license.
    1. An applicant for a broker’s license shall be at least eighteen years of age. The applicant must furnish proof satisfactory to the commission that the applicant has either received a degree from an accredited degree-granting college or university with a major course of study in real estate or has successfully completed courses of study, approved by the commission, at any accredited college or university or any private occupational school that has a certificate of approval from the private occupational school division in accordance with the provisions of article 64 of title 23 or that has been approved by the commission or licensed by an official state agency of any other state as follows:
      1. Forty-eight hours of classroom instruction or equivalent correspondent hours in real estate law and real estate practice; and
      2. Forty-eight hours of classroom instruction or equivalent correspondent hours in understanding and preparation of Colorado real estate contracts; and
      3. A total of seventy-two hours of instruction or equivalent correspondence hours from the following areas of study:
        1. Trust accounts and record keeping;
        2. Real estate closings;
        3. Current legal issues; and
        4. Practical applications.
    2. An applicant for a broker’s license who has been licensed as a real estate broker in another jurisdiction shall be required to complete only the course of study comprising the subject matter areas described in subsections (4)(a)(II) and (4)(a)(III)(B) of this section.
    3. An applicant for a broker’s license who has been licensed as a real estate salesperson in another jurisdiction shall be required to complete only the course of study required in subsections (4)(a)(II) and (4)(a)(III) of this section.
    1. The applicant for a broker’s license shall submit to and pass an examination designated to determine the competency of the applicant and prepared by or under the supervision of the commission or its designated contractor. The commission may contract with an independent testing service to develop, administer, or grade examinations or to administer licensee records. The contract may allow the testing service to recover the costs of the examination and the costs of administering exam and license records from the applicant. The commission may contract separately for these functions and allow recovered costs to be collected and retained by a single contractor for distribution to other contractors. The commission shall have the authority to set the minimum passing score that an applicant must receive on the examination, and the score shall reflect the minimum level of competency required to be a broker. The examination shall be given at such times and places as the commission prescribes. The examination shall include, but not be limited to, ethics, reading, spelling, basic mathematics, principles of land economics, appraisal, financing, a knowledge of the statutes and law of this state relating to deeds, trust deeds, mortgages, listing contracts, contracts of sale, bills of sale, leases, agency, brokerage, trust accounts, closings, securities, the provisions of this part 2, and the rules of the commission. The examination for a broker’s license shall also include the preparation of a real estate closing statement.
    2. An applicant for a broker’s license who has held a real estate license in another jurisdiction that administers a real estate broker’s examination and who has been licensed for two or more years prior to applying for a Colorado license may be issued a broker’s license if the applicant establishes that he or she possesses credentials and qualifications that are substantively equivalent to the requirements in Colorado for licensure by examination.
    3. In addition to all other applicable requirements, the following provisions apply to brokers that did not hold a current and valid broker’s license on December 31, 1996:
      1. No such broker shall engage in an independent brokerage practice without first having served actively as a real estate broker for at least two years. The commission shall adopt rules requiring an employing broker to ensure that a high level of supervision is exercised over such a broker during the two-year period.
      2. No such broker shall employ another broker without first having completed twenty-four clock hours of instruction, or the equivalent in correspondence hours, as approved by the commission, in brokerage administration.
      3. Effective January 1, 2019, a broker shall not act as an employing broker without first demonstrating, in accordance with rules of the commission, experience and knowledge sufficient to enable the broker to employ and adequately supervise other brokers, as appropriate to the broker’s area of supervision. The commission’s rules must set forth the method or methods by which the broker may demonstrate the experience and knowledge, either by documenting a specified number of transactions that the broker has completed or by other methods.
    1. Real estate brokers’ licenses may be granted to individuals, partnerships, limited liability companies, or corporations. A partnership, limited liability company, or corporation, in its application for a license, shall designate a qualified, active broker to be responsible for management and supervision of the licensed actions of the partnership, limited liability company, or corporation and all licensees shown in the commission’s records as being in the employ of the entity. The application of the partnership, limited liability company, or corporation and the application of the broker designated by it shall be filed with the commission.
    2. No license shall be issued to any partnership, limited liability company, or corporation unless and until the broker so designated by the partnership, limited liability company, or corporation submits to and passes the examination required by this part 2 on behalf of the partnership, limited liability company, or corporation. Upon the broker successfully passing the examination and upon compliance with all other requirements of law by the partnership, limited liability company, or corporation, as well as by the designated broker, the commission shall issue a broker’s license to the partnership, limited liability company, or corporation, which shall bear the name of the designated broker, and thereupon the broker so designated shall conduct business as a real estate broker only through the partnership, limited liability company, or corporation and not for the broker’s own account.
    3. If the person so designated is refused a license by the commission or ceases to be the designated broker of the partnership, limited liability company, or corporation, the entity may designate another person to make application for a license. If the person ceases to be the designated broker of the partnership, limited liability company, or corporation, the director may issue a temporary license to prevent hardship for a period not to exceed ninety days to the licensed person so designated. The director may extend a temporary license for one additional period not to exceed ninety days upon proper application and a showing of good cause; if the director refuses, no further extension of a temporary license shall be granted except by the commission. If any broker or employee of any such partnership, limited liability company, or corporation, other than the one designated as provided in this section, desires to act as a real estate broker, the broker or employee shall first obtain a license as a real estate broker as provided in this section and shall pay the regular fee therefor.
  3. The broker designated to act as broker for any partnership, limited liability company, or corporation is personally responsible for the handling of any and all earnest money deposits or escrow or trust funds received or disbursed by the partnership, limited liability company, or corporation. In the event of any breach of duty by the partnership, limited liability company, or corporation as a fiduciary, any person aggrieved or damaged by the breach of fiduciary duty shall have a claim for relief against the partnership, limited liability company, or corporation, as well as against the designated broker, and may pursue the claim against the partnership, limited liability company, or corporation and the designated broker personally. The broker may be held responsible and liable for damages based upon the breach of fiduciary duty as may be recoverable against the partnership, limited liability company, or corporation, and any judgment so obtained may be enforced jointly or severally against the broker personally and the partnership, limited liability company, or corporation.
  4. No license for a broker registered as being in the employ of another broker shall be issued to a partnership, a limited liability company, or a corporation or under a fictitious name or trade name; except that a married woman may elect to use her birth name.
  5. No person shall be licensed as a real estate broker under more than one name, and no person shall conduct or promote a real estate brokerage business except under the name under which the person is licensed.
  6. A licensed attorney shall take and pass the examination referred to in this section after having completed twelve hours of classroom instruction or equivalent correspondent hours in trust accounts, record keeping, and real estate closings.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 618, § 1, effective October 1; (1)(b)(I) amended,(HB 19-1166), ch. 125, p. 564, § 68, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-103 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1166. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from April 18, 2019, to October 1, 2019, see HB 19-1166, chapter 125, Session Laws of Colorado 2019.

ANNOTATION

Law reviews. For article, “ C ontract and C onveyance Documents -- Broker Beware”, see 11 Colo. Law. 2383 (1982).

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

“Fiduciary relation” is defined as an expression including both technical fiduciary relations and those informal relations which exist whenever one man trusts and relies upon another, and it exists where there is special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to interests of one reposing the confidence. Circle T Corp. v. Deerfield, 166 Colo. 238, 444 P.2d 404 (1968).

The foundation for the fiduciary relationship which exists between an agent and his principal is predicated on the trust or confidence which the principal reposes in the agent. Circle T Corp. v. Deerfield, 166 Colo. 238, 444 P.2d 404 (1968).

In all his dealings affecting the subject matter of his agency, it is the duty of the agent to act with the utmost good faith and loyalty in behalf of his principal. Circle T Corp. v. Deerfield, 166 Colo. 238, 444 P.2d 404 (1968).

There is no requirement that a real estate salesman hold a real estate broker’s license issued in his own name. White v. Minissale, 155 Colo. 257, 394 P.2d 126 (1964).

This statute clearly does not declare unlicensed branch offices to be unlawful. Holter v. Moore & Co., 681 P.2d 962 (Colo. App. 1983).

No private cause of action may be implied under this section for recovery of commissions paid to an unlicensed real estate office. Holter v. Moore & Co., 681 P.2d 962 (Colo. App. 1983); Miami Intern. Realty Co. v. Paynter, 841 F.2d 348 (10th Cir. 1988).

Applied in Tenderfoot Mt. Props. v. Jones, 626 P.2d 703 (Colo. App. 1980); Holter v. Moore & Co., 702 F.2d 854 (10th Cir. 1983).

12-10-204. Errors and omissions insurance required - rules.

  1. Every licensee under this part 2, except an inactive broker or an attorney licensee who maintains a policy of professional malpractice insurance that provides coverage for errors and omissions for their activities as a licensee under this part 2, shall maintain errors and omissions insurance to cover all activities contemplated under parts 2 to 6 of this article 10. The division shall make the errors and omissions insurance available to all licensees by contracting with an insurer for a group policy after a competitive bid process in accordance with article 103 of title 24. A group policy obtained by the division must be available to all licensees with no right on the part of the insurer to cancel a licensee. A licensee may obtain errors and omissions insurance independently if the coverage complies with the minimum requirements established by the division.
    1. If the division is unable to obtain errors and omissions insurance coverage to insure all licensees who choose to participate in the group program at a reasonable annual premium, as determined by the division, a licensee shall independently obtain the errors and omissions insurance required by this section.
    2. The division shall solicit and consider information and comments from interested persons when determining the reasonableness of annual premiums.
  2. The division shall determine the terms and conditions of coverage required under this section based on rules promulgated by the commission. The commission shall notify each licensee of the required terms and conditions at least thirty days before the annual premium renewal date as determined by the commission. Each licensee shall file a certificate of coverage showing compliance with the required terms and conditions with the commission by the annual premium renewal date, as determined by the division.
  3. In addition to all other powers and duties conferred upon the commission by this article 10, the commission shall adopt such rules as it deems necessary or proper to carry out the provisions of this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 622, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-103.6 as it existed prior to 2019.

ANNOTATION

Law reviews. For article, “E & O Insurance: Mandatory for C olorado Real Estate Professionals”, see 27 C olo. Law. 99 (Sept. 1998).

12-10-205. Licenses - issuance - contents - display.

The commission shall make available for each licensee a license in such form and size as the commission shall prescribe and adopt. The real estate license shall show the name of the licensee and shall have imprinted thereon the seal, or a facsimile, of the department and, in addition to the foregoing, shall contain such other matter as the commission shall prescribe.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 623, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-104 as it existed prior to 2019.

12-10-206. Real estate commission - created - compensation - immunity.

  1. There is hereby created a commission of five members, appointed by the governor, which shall administer parts 2 and 5 of this article 10. This commission is known as the real estate commission and consists of three real estate brokers who have had not less than five years’ experience in the real estate business in Colorado, one of whom has substantial experience in property management, and two representatives of the public at large. Members of the commission hold office for a period of three years. Upon the death, resignation, removal, or otherwise of any member of the commission, the governor shall appoint a member to fill out the unexpired term. The governor may remove any member for misconduct, neglect of duty, or incompetence.
  2. Each member of the commission shall receive the same compensation and reimbursement of expenses as those provided for members of boards and commissions in the division of professions and occupations pursuant to section 12-20-103 (6). Payment for all such per diem compensation and expenses shall be made out of annual appropriations from the division of real estate cash fund provided for in section 12-10-215.
  3. Members of the commission, consultants, expert witnesses, and complainants shall be immune from suit in any civil action based upon any disciplinary proceedings or other official acts they performed in good faith.
  4. No real estate broker’s license shall be denied, suspended, or revoked except as determined by a majority vote of the members of the commission.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 623, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-105 as it existed prior to 2019.

ANNOTATION

Law reviews. For article, “ C ontract and C onveyance Documents -- Broker Beware”, see 11 Colo. Law. 2383 (1982).

The sole power of appointment of the members of the real estate brokers board is expressly conferred by this section upon the governor. People ex rel. Wade v. Downen, 106 Colo. 557, 108 P.2d 224 (1940) (decided under former law).

12-10-207. Division of real estate - creation - director, clerks, and assistants.

  1. There is hereby created within the department the division of real estate. The executive director is authorized by this section to employ, subject to the provisions of the state personnel system laws of the state, a director of the division, who in turn shall employ such attorneys, deputies, investigators, clerks, and assistants as are necessary to discharge the duties imposed by parts 2 and 5 of this article 10. The division and the director shall exercise their powers and perform their duties and functions under the department as if they were transferred to the department by a type 2 transfer.
  2. It is the duty of the director, personally, or the director’s designee to aid in the administration and enforcement of parts 2 and 5 of this article 10 and in the prosecution of all persons charged with violating any of their provisions, to conduct audits of business accounts of licensees, to perform such duties of the commission as the commission prescribes, and to act in behalf of the commission on such occasions and in such circumstances as the commission directs.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 624, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-106 as it existed prior to 2019.

12-10-208. Resident licensee - nonresident licensee - consent to service.

  1. A nonresident of the state may become a real estate broker in this state by conforming to all the conditions of this part 2; except that the nonresident broker shall not be required to maintain a place of business within this state if that broker maintains a definite place of business in another state.
  2. If a broker has no registered agent registered in this state, the registered agent is not located under its registered agent name at its registered agent address, or the registered agent cannot with reasonable diligence be served, the broker may be served by registered mail or by certified mail, return receipt requested, addressed to the entity at its principal address. Service is perfected under this subsection (2) at the earliest of:
    1. The date the broker receives the process, notice, or demand;
    2. The date shown on the return receipt, if signed by or on behalf of the broker; or
    3. Five days after mailing.
  3. All such applications shall contain a certification that the broker is authorized to act for the corporation.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 624, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-107 as it existed prior to 2019.

12-10-209. Record of licensees - publications.

The commission shall maintain a record of the names and addresses of all licensees licensed under the provisions of parts 2 and 5 of this article 10, together with such other information relative to the enforcement of the provisions as deemed by the commission to be necessary. Publication of the record and of any other information circulated in quantity outside the executive branch shall be in accordance with the provisions of section 24-1-136.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 625, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-108 as it existed prior to 2019.

12-10-210. Compilation and publication of passing rates per educational institution for real estate licensure examinations - definition - rules.

  1. The commission shall have the authority to obtain information from each educational institution authorized to offer courses in real estate for the purpose of compiling the number of applicants who pass the real estate licensure examination from each educational institution. The information shall include the name of each student who attended the institution and a statement of whether the student completed the necessary real estate courses required for licensure. The commission shall have access to such other information as necessary to accomplish the purpose of this section. For the purposes of this section, an “applicant” is a student who completed the required education requirements and who applied for and sat for the licensure examination.
  2. The commission shall compile the information obtained in subsection (1) of this section with applicant information retained by the commission. Specifically, the commission shall compile whether the student applied for the licensure examination and whether the applicant passed the licensure examination. The commission shall create statistical data setting forth:
    1. The name of the educational institution;
    2. The number of students who completed the necessary real estate course required for licensure;
    3. Whether the student registered and sat for the licensure examination; and
    4. The number of those applicants who passed the licensure examination.
  3. The commission shall publish this statistical data and make it available to the public quarterly.
  4. The commission shall retain the statistical data for three years.
  5. Specific examination scores for an applicant will be kept confidential by the commission unless the applicant authorizes release of the information.
  6. The commission may promulgate rules for the administration of this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 625, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-108.5 as it existed prior to 2019.

12-10-211. Change of license status - inactive - cancellation.

  1. Immediate notice shall be given in a manner acceptable to the commission by each licensee of any change of business location or employment. A change of business address or employment without notification to the commission shall automatically inactivate the licensee’s license.
  2. A broker who transfers to the address of another broker or a broker applicant who desires to be employed by another broker shall inform the commission if the broker is to be in the employ of the other broker. The employing broker shall have the control and custody of the employed broker’s license. The employed broker may not act on behalf of the broker or as broker for a partnership, limited liability company, or corporation during the term of the employment; but this shall not affect the employed broker’s right to transfer to another employing broker or to a location where the employed broker may conduct business as an independent broker or as a broker acting for a partnership, limited liability company, or corporation.
  3. In the event that any licensee is discharged by or terminates employment with a broker, it shall be the joint duty of both such parties to immediately notify the commission. Either party may furnish the notice in a manner acceptable to the commission. The party giving notice shall notify the other party in person or in writing of the termination of employment.
  4. It is unlawful for any such licensee to perform any of the acts authorized under the license in pursuance of this part 2, either directly or indirectly, on or after the date that employment has been terminated. When any real estate broker whose employment has been terminated is employed by another real estate broker, the commission shall, upon proper notification, enter the change of employment in the records of the commission. Not more than one employer or place of employment shall be shown for any real estate broker for the same period of time.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 626, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-109 as it existed prior to 2019.

ANNOTATION

Applied in United Buying Serv., Inc. v. State Dept. of Rev., 37 Colo. App. 465, 548 P.2d 1286 (1976) (decided under former law).

12-10-212. License fees - partnership, limited liability company, and corporation licenses - rules.

  1. Fees established pursuant to section 12-10-215 shall be charged by and paid to the commission or the agent for the commission for the following:
    1. Each broker’s examination;
    2. Each broker’s original application and license;
    3. Each renewal of a broker’s license;
    4. Any change of name, address, or employing broker requiring a change in commission records;
    5. A new application that shall be submitted when a licensed real estate broker wishes to become the broker acting for a partnership, a limited liability company, or a corporation.
  2. The proper fee shall accompany each application for licensure. The fee shall not be refundable. Failure by the person taking an examination to file the appropriate broker’s application within one year of the date the person passed the examination will automatically cancel the examination, and all rights to a passing score will be terminated.
  3. Each real estate broker’s license granted to an individual shall entitle the individual to perform all the acts contemplated by this part 2, without any further application on his or her part and without the payment of any fee other than the fees specified in this section.
      1. The commission shall require that any person licensed under this part 2, whether on an active or inactive basis, renew the license on or before December 31 of every third year after issuance; except that an initial license issued under this part 2 on or after April 23, 2018, expires at 12 midnight on December 31 of the year in which it was issued.
      2. Renewal is conditioned upon fulfillment of the continuing education requirements set forth in section 12-10-213. For persons renewing or reinstating an active license, written certification verifying completion for the previous licensing period of the continuing education requirements set forth in section 12-10-213 must accompany and be submitted to the commission with the application for renewal or reinstatement. For persons who did not submit certification verifying compliance with section 12-10-213 at the time a license was renewed or reinstated on an inactive status, written certification verifying completion for the previous licensing period of the continuing education requirements set forth in that section must accompany and be submitted with any future application to reactivate the license. The commission may, by rule, establish procedures to facilitate such a renewal. In the absence of any reason or condition that might warrant the refusal of the granting of a license or the revocation thereof, the commission shall issue a new license upon receipt by the commission of the written request of the applicant and the appropriate fees required by this section. Applications for renewal will be accepted thirty days prior to January 1.
      3. A person who fails to renew a license before January 1 of the year succeeding the year of the expiration of the license may reinstate the license as follows:
        1. If proper application is made within thirty-one days after the date of expiration, by payment of the regular renewal fee;
        2. If proper application is made more than thirty-one days but within one year after the date of expiration, by payment of the regular renewal fee and payment of a reinstatement fee equal to one-half the regular renewal fee;
        3. If proper application is made more than one year but within three years after the date of expiration, by payment of the regular renewal fee and payment of a reinstatement fee equal to the regular renewal fee.
      4. The commission may, by rule, establish procedures to facilitate the transition of the reinstatement license periods described in subsections (4)(a)(III)(A) to (4)(a)(III)(C) of this section from an anniversary expiration date to a December 31 expiration date.
    1. Any reinstated license shall be effective only as of the date of reinstatement. Any person who fails to apply for reinstatement within three years after the expiration of a license shall, without exception, be treated as a new applicant for licensure.
    2. All reinstatement fees shall be transmitted to the state treasurer, who shall credit the fees to the division of real estate cash fund, as established by section 12-10-215.
  4. The suspension, expiration, or revocation of a real estate broker’s license shall automatically inactivate every real estate broker’s license where the holder of the license is shown in the commission records to be in the employ of the broker whose license has expired or has been suspended or revoked pending notification to the commission by the employed licensee of a change of employment.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 626, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-110 as it existed prior to 2019.

ANNOTATION

Decisions as to whether to require previous licensee to take broker’s examination rests within the sound discretion of the commission. Howard v. Real Estate Comm’n, 35 Colo. App. 141, 531 P.2d 981 (1974) (decided under former law).

12-10-213. Renewal of license - continuing education requirement - rules.

  1. A broker applying for renewal of a license pursuant to section 12-10-212 (4) shall include with the application a certified statement verifying successful completion of real estate courses in accordance with the following schedule:
    1. For licensees applying for renewal of a three-year license, passage within the previous three years of the Colorado portion of the real estate exam or completion of a minimum of twenty-four hours of credit, twelve of which must be the credits developed by the commission pursuant to subsection (2) of this section;
    2. For licensees applying for renewal of a license that expires less than three years after it was issued, passage within the license period of the Colorado portion of the real estate exam or completion of a minimum of twenty-four hours of credit, at least eight of which must be the credits developed by the commission pursuant to subsection (2) of this section.
  2. The commission shall develop twelve hours of credit designed to assure reasonable currency of real estate knowledge by licensees, which credits shall include an update of the current statutes and the rules promulgated by the commission that affect the practice of real estate. If a licensee takes a course pursuant to rule 250 of the Colorado rules of civil procedure and the course concerns real property law, the licensee shall receive credit for the course toward the fulfillment of the licensee’s continuing education requirements pursuant to this section. The credits shall be taken from an accredited Colorado college or university; a Colorado community college; a Colorado private occupational school holding a certificate of approval from the state board for community colleges and occupational education; or an educational institution or an educational service described in section 23-64-104. Successful completion of the credits shall require satisfactory passage of a written examination or written examinations of the materials covered. The examinations shall be audited by the commission to verify their accuracy and the validity of the grades given. The commission shall set the standards required for satisfactory passage of the examinations.
  3. All credits, other than the credits specified in subsection (2) of this section, shall be acquired from educational courses approved by the commission that contribute directly to the professional competence of a licensee. The credits may be acquired through successful completion of instruction in one or more of the following subjects:
    1. Real estate law;
    2. Property exchanges;
    3. Real estate contracts;
    4. Real estate finance;
    5. Real estate appraisal;
    6. Real estate closing;
    7. Real estate ethics;
    8. Condominiums and cooperatives;
    9. Real estate time-sharing;
    10. Real estate marketing principles;
    11. Real estate construction;
    12. Land development;
    13. Real estate energy concerns;
    14. Real estate geology;
    15. Water and waste management;
    16. Commercial real estate;
    17. Real estate securities and syndications;
    18. Property management;
    19. Real estate computer principles;
    20. Brokerage administration and management;
    21. Agency; and
    22. Any other subject matter as approved by the commission.
  4. A licensee applying for renewal of a license that expires on December 31 of the year in which it was issued is not subject to the education requirements set forth in subsection (1) of this section.
  5. The commission shall promulgate rules to implement this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 628, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-110.5 as it existed prior to 2019.

ANNOTATION

The real estate brokers licensing statute, publication of the rules and regulations promulgated by the state commission of real estate, and publication of a special announcement in The Real Estate News provided adequate notice of the mandatory course requirement for real estate broker license renewal. Colo. Real Estate Comm’n v. Hanegan, 924 P.2d 1170 (Colo. App. 1996), rev’d on other grounds, 947 P.2d 933 (Colo. 1997) (decided under former law).

12-10-214. Disposition of fees.

All fees collected by the commission under parts 2 and 5 of this article 10, not including administrative fees that are in the nature of an administrative fine and fees retained by contractors pursuant to contracts entered into in accordance with section 12-10-203 or 24-34-101, shall be transmitted to the state treasurer, who shall credit the same to the division of real estate cash fund. Pursuant to section 12-10-215, the general assembly shall make annual appropriations from the fund for expenditures of the commission incurred in the performance of its duties under parts 2 and 5 of this article 10. The commission may request an appropriation specifically designated for educational and enforcement purposes. The expenditures incurred by the commission under parts 2 and 5 of this article 10 shall be made out of the appropriations upon vouchers and warrants drawn pursuant to law.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 630, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-111 as it existed prior to 2019.

12-10-215. Fee adjustments - cash fund created.

  1. This section applies to all activities of the division under parts 2, 5, 6, and 7 of this article 10.
      1. The division shall propose, as part of its annual budget request, an adjustment in the amount of each fee that it is authorized by law to collect under parts 2, 5, 6, and 7 of this article 10. The budget request and the adjusted fees for the division must reflect direct and indirect costs.
      2. The costs of the HOA information and resource center, created in section 12-10-801, shall be paid from the division of real estate cash fund created in this section. The division shall estimate the direct and indirect costs of operating the HOA information and resource center and shall establish the amount of the annual registration fee to be collected under section 38-33.3-401. The amount of the registration fee shall be sufficient to recover these costs, subject to a maximum limit of fifty dollars.
    1. Based upon the appropriation made and subject to the approval of the executive director, the division shall adjust its fees so that the revenue generated from the fees approximates its direct and indirect costs incurred in administering the programs and activities from which the fees are derived. The fees shall remain in effect for the fiscal year for which the budget request applies. All fees collected by the division, not including fees retained by contractors pursuant to contracts entered into in accordance with section 12-10-203 or 24-34-101, shall be transmitted to the state treasurer, who shall credit the same to the division of real estate cash fund, which fund is hereby created. All money credited to the division of real estate cash fund shall be used as provided in this section or in section 12-10-214 and shall not be deposited in or transferred to the general fund of this state or any other fund.
    2. Beginning July 1, 1979, and each July 1 thereafter, whenever money appropriated to the division for its activities for the prior fiscal year is unexpended, the money shall be made a part of the appropriation to the division for the next fiscal year, and the amount shall not be raised from fees collected by the division. If a supplemental appropriation is made to the division for its activities, its fees, when adjusted for the fiscal year next following that in which the supplemental appropriation was made, shall be adjusted by an additional amount that is sufficient to compensate for the supplemental appropriation. Funds appropriated to the division in the annual long appropriations bill shall be designated as a cash fund and shall not exceed the amount anticipated to be raised from fees collected by the division.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 630, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-111.5 as it existed prior to 2019.

12-10-216. Records - evidence - inspection.

  1. The executive director shall adopt a seal by which all proceedings authorized under parts 2 and 5 of this article 10 shall be authenticated. Copies of records and papers in the office of the commission or department relating to the administration of parts 2 and 5 of this article 10, when duly certified and authenticated by the seal, shall be received as evidence in all courts equally and with like effect as the originals. All records kept in the office of the commission or department, under authority of parts 2 and 5 of this article 10, must be open to public inspection at such time and in such manner as may be prescribed by rules formulated by the commission.
  2. The commission shall not be required to maintain or preserve licensing history records of any person licensed under the provisions of this part 2 for any period of time longer than seven years.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 631, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-112 as it existed prior to 2019.

12-10-217. Investigation - revocation - actions against licensee or applicant - definition.

  1. The commission, upon its own motion, may, and, upon the complaint in writing of any person, shall, investigate the activities of any licensee or any person who assumes to act in the capacity of a licensee within the state, and the commission, after holding a hearing pursuant to section 12-10-219, has the power to impose an administrative fine not to exceed two thousand five hundred dollars for each separate offense and to censure a licensee, to place the licensee on probation and to set the terms of probation, or to temporarily suspend a license, or permanently revoke a license, when the licensee has performed, is performing, or is attempting to perform any of the following acts and is guilty of:
    1. Knowingly making any misrepresentation or knowingly making use of any false or misleading advertising;
    2. Making any promise of a character that influences, persuades, or induces another person when he or she could not or did not intend to keep the promise;
    3. Knowingly misrepresenting or making false promises through agents, advertising, or otherwise;
    4. Violating any provision of the “Colorado Consumer Protection Act”, article 1 of title 6;
    5. Acting for more than one party in a transaction without the knowledge of all parties thereto;
    6. Representing or attempting to represent a real estate broker other than the licensee’s employer without the express knowledge and consent of that employer;
    7. In the case of a broker registered as in the employ of another broker, failing to place, as soon after receipt as is practicably possible, in the custody of that licensed broker-employer any deposit money or other money or fund entrusted to the employee by any person dealing with the employee as the representative of that licensed broker-employer;
    8. Failing to account for or to remit, within a reasonable time, any money coming into the licensee’s possession that belongs to others, whether acting as real estate brokers or otherwise, and failing to keep records relative to the money, which records shall contain such information as may be prescribed by the rules of the commission relative thereto and shall be subject to audit by the commission;
    9. Converting funds of others, diverting funds of others without proper authorization, commingling funds of others with the broker’s own funds, or failing to keep the funds of others in an escrow or a trustee account with some bank or recognized depository in this state, which account may be any type of checking, demand, passbook, or statement account insured by an agency of the United States government, and to keep records relative to the deposit that contain such information as may be prescribed by the rules of the commission relative thereto, which records shall be subject to audit by the commission;
    10. Failing to provide the purchaser and seller of real estate with a closing statement of the transaction, containing such information as may be prescribed by the rules of the commission or failing to provide a signed duplicate copy of the listing contract and the contract of sale or the preliminary agreement to sell to the parties thereto;
    11. Failing to maintain possession, for future use or inspection by an authorized representative of the commission, for a period of four years, of the documents or records prescribed by the rules of the commission or to produce the documents or records upon reasonable request by the commission or by an authorized representative of the commission;
    12. Paying a commission or valuable consideration for performing any of the functions of a real estate broker, as described in this part 2, to any person not licensed under this part 2; except that a licensed broker may pay a finder’s fee or a share of any commission on a cooperative sale when the payment is made to a real estate broker licensed in another state or country. If a country does not license real estate brokers, then the payee must be a citizen or resident of the country and represent that the payee is in the business of selling real estate in the country.
    13. Disregarding or violating any provision of this part 2 or part 4 of this article 10, violating any reasonable rule promulgated by the commission in the interests of the public and in conformance with the provisions of this part 2 or part 4 of this article 10; violating any lawful commission orders; or aiding and abetting a violation of any rule, commission order, or provision of this part 2 or part 4 of this article 10;
      1. Conviction of, entering a plea of guilty to, or entering a plea of nolo contendere to any crime in article 3 of title 18; parts 1, 2, 3, and 4 of article 4 of title 18; part 1, 2, 3, 4, 5, 7, 8, or 9 of article 5 of title 18; article 5.5 of title 18; parts 3, 4, 6, 7, and 8 of article 6 of title 18; parts 1, 3, 4, 5, 6, 7, and 8 of article 7 of title 18; part 3 of article 8 of title 18; article 15 of title 18; article 17 of title 18; section 18-18-404, 18-18-405, 18-18-406, 18-18-411, 18-18-412.5, 18-18-412.7, 18-18-412.8, 18-18-415, 18-18-416, 18-18-422, or 18-18-423; or any other like crime under Colorado law, federal law, or the laws of other states. A certified copy of the judgment of a court of competent jurisdiction of the conviction or other official record indicating that the plea was entered shall be conclusive evidence of the conviction or plea in any hearing under this part 2.
      2. As used in this subsection (1)(n), “conviction” includes the imposition of a deferred judgment or deferred sentence.
    14. Violating or aiding and abetting in the violation of the Colorado or federal fair housing laws;
    15. Failing to immediately notify the commission in writing of a conviction, plea, or violation pursuant to subsection (1)(n) or (1)(o) of this section;
    16. Having demonstrated unworthiness or incompetency to act as a real estate broker by conducting business in such a manner as to endanger the interest of the public;
    17. In the case of a broker licensee, failing to exercise reasonable supervision over the activities of licensed employees;
    18. Procuring, or attempting to procure, a real estate broker’s license or renewing, reinstating, or reactivating, or attempting to renew, reinstate, or reactivate, a real estate broker’s license by fraud, misrepresentation, or deceit or by making a material misstatement of fact in an application for the license;
    19. Claiming, arranging for, or taking any secret or undisclosed amount of compensation, commission, or profit or failing to reveal to the licensee’s principal or employer the full amount of the licensee’s compensation, commission, or profit in connection with any acts for which a license is required under this part 2;
    20. Using any provision allowing the licensee an option to purchase in any agreement authorizing or employing the licensee to sell, buy, or exchange real estate for compensation or commission, except when the licensee, prior to or coincident with election to exercise the option to purchase, reveals in writing to the licensee’s principal or employer the full amount of the licensee’s profit and obtains the written consent of the principal or employer approving the amount of the profit;
    21. Effective on and after August 26, 2013, fraud, misrepresentation, deceit, or conversion of trust funds that results in the entry of a civil judgment for damages;
    22. Any other conduct, whether of the same or a different character than specified in this subsection (1), that constitutes dishonest dealing;
    23. Having had a real estate broker’s or a subdivision developer’s license suspended or revoked in any jurisdiction, or having had any disciplinary action taken against the broker or subdivision developer in any other jurisdiction if the broker’s or subdivision developer’s action would constitute a violation of this subsection (1). A certified copy of the order of disciplinary action shall be prima facie evidence of the disciplinary action.
    24. Failing to keep records documenting proof of completion of the continuing education requirements in accordance with section 12-10-213 for a period of four years from the date of compliance with the section;
      1. Violating any provision of section 12-10-218.
      2. In addition to any other remedies available to the commission pursuant to this article 10, after notice and a hearing pursuant to section 24-4-105, the commission may assess a penalty for a violation of section 12-10-218 or of any rule promulgated pursuant to section 12-10-218. The penalty shall be the amount of remuneration improperly paid and shall be transmitted to the state treasurer and credited to the general fund.
      3. A real estate appraiser, as defined by section 12-10-602 (9);
      4. An insurance producer, as defined by section 10-2-103 (6);
      5. An attorney;
      6. A securities broker-dealer, as defined by section 11-51-201 (2);
      7. A securities sales representative, as defined by section 11-51-201 (14);
      8. An investment advisor, as defined by section 11-51-201 (9.5); or
      9. An investment advisor representative, as defined by section 11-51-201 (9.6).
    25. Within the last five years, having a license, registration, or certification issued by Colorado or another state revoked or suspended for fraud, deceit, material misrepresentation, theft, or the breach of a fiduciary duty, and such discipline denied the person authorization to practice as:

      (I) A mortgage broker or mortgage loan originator;

      (II) A real estate broker or salesperson;

  2. Every person licensed pursuant to section 12-10-201 (6)(a)(X) shall give a prospective tenant a contract or receipt; and the contract or receipt shall include the address and telephone number of the commission in prominent letters and shall state that the regulation of rental location agents is under the purview of the commission.
  3. In the event a firm, partnership, limited liability company, association, or corporation operating under the license of a broker designated and licensed as representative of the firm, partnership, limited liability company, association, or corporation is guilty of any of the foregoing acts, the commission may suspend or revoke the right of the firm, partnership, limited liability company, association, or corporation to conduct its business under the license of the broker, whether or not the designated broker had personal knowledge thereof and whether or not the commission suspends or revokes the individual license of the broker.
  4. Upon request of the commission, when any real estate broker is a party to any suit or proceeding, either civil or criminal, arising out of any transaction involving the sale or exchange of any interest in real property or out of any transaction involving a leasehold interest in the real property and when the broker is involved in the transaction in such capacity as a licensed broker, it shall be the duty of the broker to supply to the commission a copy of the complaint, indictment, information, or other initiating pleading and the answer filed, if any, and to advise the commission of the disposition of the case and of the nature and amount of any judgment, verdict, finding, or sentence that may be made, entered, or imposed therein.
  5. This part 2 shall not be construed to relieve any person from civil liability or criminal prosecution under the laws of this state.
  6. Complaints of record in the office of the commission and commission investigations, including commission investigative files, are closed to public inspection. Stipulations and final agency orders are public records subject to sections 24-72-203 and 24-72-204.
  7. When a complaint or an investigation discloses an instance of misconduct that, in the opinion of the commission, does not warrant formal action by the commission but that should not be dismissed as being without merit, the commission may send a letter of admonition by certified mail, return receipt requested, to the licensee against whom a complaint was made and a copy thereof to the person making the complaint, but the letter shall advise the licensee that the licensee has the right to request in writing, within twenty days after proven receipt, that formal disciplinary proceedings be initiated to adjudicate the propriety of the conduct upon which the letter of admonition is based. If the request is timely made, the letter of admonition shall be deemed vacated, and the matter shall be processed by means of formal disciplinary proceedings.
  8. All administrative fines collected pursuant to this section shall be transmitted to the state treasurer, who shall credit the same to the division of real estate cash fund.
  9. Any application for licensure from a person whose license has been revoked shall not be considered until the passage of one year from the date of revocation.
  10. When the division becomes aware of facts or circumstances that fall within the jurisdiction of a criminal justice or other law enforcement authority upon investigation of the activities of a licensee, the division shall, in addition to the exercise of its authority under this part 2, refer and transmit the information, which may include originals or copies of documents and materials, to one or more criminal justice or other law enforcement authorities for investigation and prosecution as authorized by law.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 631, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-113 as it existed prior to 2019.

Cross references:

For alternative disciplinary actions for persons licensed pursuant to this part 2, see § 24-34-106.

ANNOTATION

Law reviews. For article, “ C olorado ‘Buyer Brokerage’: Does it Still Exist After Velten v. Robertson?”, see 55 U. C olo. L. Rev. 83 (1983). For article, “Affiliated Business Arrangements: Compliance with RESPA and H.B. 06-1141”, see 35 Colo. Law. 65 (Nov. 2006).

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Terms “unworthiness” and “incompetency” are not unconstitutionally vague as used in subsection (1)(n). Eckley v. Colo. Real Estate Comm’n, 752 P.2d 68 (Colo. 1988).

The legislature intended the commission’s sanction authority to extend to a broker’s improper conduct outside the real estate context, particularly when it speaks to the broker’s honesty, dignity, or moral character. McDonnell v. Colo. Real Estate Comm’n, 2 015 COA 137, 361 P.3d 1138.

The legislature’s inclusion of the phrase “or otherwise” in subsection (1)(g) indicates its intention to discipline brokers for failing to account or remit others’ funds, even in non-real estate transactions. McDonnell v. Colo. Real Estate Comm’n, 2 015 COA 137, 361 P.3d 1138.

Commission had authority to sanction licensed broker for conduct, even though that conduct did not involve “selling, exchanging, buying, renting, or leasing” real estate. McDonnell v. Colo. Real Estate Comm’n, 2 015 COA 137, 361 P.3d 1138.

Commission has jurisdiction over broker dealing for own account. Where a real estate broker is dealing in real estate for his own account, the Colorado real estate commission has jurisdiction over his acts and can suspend or revoke his license for proven violations of the licensing statute or of the commission’s rules. Seibel v. Colo. Real Estate Comm’n, 34 Colo. App. 415, 530 P.2d 1290 (1974).

Real estate agent has duty to act with utmost faith and loyalty. Under both the common law and applicable statutes, a real estate agent, in all dealings affecting the subject matter of his agency, has a fiduciary duty to act with the utmost faith and loyalty in behalf of his principal. This duty requires the agent to make a full and complete disclosure before he becomes the purchaser of property which is the subject of his agency with his principal. M.S.R., Inc. v. Lish, 34 Colo. App. 320, 527 P.2d 912 (1974).

Unless otherwise agreed, in all dealings affecting the subject matter of his agency, a real estate broker or salesman has a fiduciary duty to act with the utmost faith and loyalty in behalf of, and to act solely for the benefit of, his principal. Lestoque v. M.R. Mansfield Realty, Inc., 36 Colo. App. 32, 536 P.2d 1146 (1975).

Where real estate agents had a combined two-thirds interest in the buyer corporation, they did not act with the utmost loyalty to their principal, and, because they initially failed to advise their principal that they owned two-thirds of the buyer corporation, they did not make a full and complete disclosure of their interests to her. Since the agents in fact own a controlling interest in the buyer corporation, knowledge of the breach of their fiduciary duty as licensed real estate agents is imputed to the buyer. M.S.R., Inc. v. Lish, 34 Colo. App. 320, 527 P.2d 912 (1974).

Complete disclosure to and informed consent of principal required. The fiduciary duty of a real estate agent to act with faith and loyalty requires that the agent make a full and complete disclosure to, and obtain the informed consent from, the principal before the agent can sell his own property to the principal or can himself buy the principal’s property. Lestoque v. M.R. Mansfield Realty, Inc., 36 Colo. App. 32, 536 P.2d 1146 (1975).

If there is no such disclosure or consent, there is a breach of duty. A sale by the real estate broker of his own property to the principal or purchase of the principal’s property for his own without the informed knowledge and consent of the principal is a breach of duty, and, in such a transaction, if the agent makes a profit, he must account therefor to his principal. Lestoque v. M.R. Mansfield Realty, Inc., 36 Colo. App. 32, 536 P.2d 1146 (1975).

Accounting is required. Rule requiring real estate broker to account to principal if the agent makes a profit in violation of fiduciary duty applies regardless of whether there is any harm to the principal as a result of the self-dealing by the agent. In such event, the principal can disaffirm and avoid the deal or can ratify the deal and take the profits. Lestoque v. M.R. Mansfield Realty, Inc., 36 Colo. App. 32, 536 P.2d 1146 (1975).

Absent fiduciary duty, evidence of misconduct insufficient to suspend license. Absent a fiduciary duty incumbent on an agent, evidence of real estate broker’s misconduct was insufficient to sustain a suspension of his license under subsections (1)(n) and (1)(t). Hiller v. Real Estate Comm’n, 627 P.2d 769 (Colo. 1981).

Fiduciary duty imposed on licensed brokers pursuant to subsections (1)(g) and (1)(g.5) fall within the meaning of § 523 (a)(4) of the federal bankruptcy code. In re Currin, 55 B.R. 928 (Bankr. D. Colo. 1985).

Commission had authority to sanction licensed broker’s non-real estate conduct under subsection (1)(g). McDonnell v. Colo. Real Estate Comm’n, 2 015 COA 137, 361 P.3d 1138.

Subsection (1)(m) of this section, read together with § 24-5-101, does not authorize the commission to revoke a broker’s license based solely on his or her conviction of a felony. The commission bears the burden of proving not only that the licensee was convicted of a felony, but also that he or she has not been rehabilitated. Colo. Real Estate Comm’n v. Bartlett, 272 P.3d 1099 (Colo. App. 2011).

Failure to provide purchaser with sufficiently detailed closing statement in violation of rule E-5(b) of the rules of the real estate commission was violation of subsections (1)(h) and (1)(n). Eckley v. Colo. Real Estate Comm’n, 752 P.2d 68 (Colo. 1988).

Failure to properly deposit escrow funds in violation of subsection (1)(g.5) and rule E-1 of the rules of the real estate commission was incompetency and unworthiness in violation of subsection (1)(n). Eckley v. Colo. Real Estate Comm’n, 752 P.2d 68 (Colo. 1988).

Commission had authority to sanction licensed broker’s conduct under subsection (1)(t), even though that conduct did not involve a real estate transaction. McDonnell v. Colo. Real Estate Comm’n, 2 015 COA 137, 361 P.3d 1138.

Commission did not have authority to punish licensed broker under subsection (1)(n) because the charged conduct was unrelated to real estate and did not fall within any of the punishable grounds listed in rule G-7. McDonnell v. Colo. Real Estate Comm’n, 2 015 COA 137, 361 P.3d 1138.

Application of disciplinary sections. The disciplinary sections apply even when the broker is selling or buying his own property. Hammer v. Real Estate Comm’n, 40 Colo. App. 260, 576 P.2d 191 (1977).

Disciplinary action of real estate commission was not arbitrary or capricious. Order of real estate commission suspending license of broker in reliance upon hearing officer’s finding that broker’s failure to disclose financial records, making material misrepresentations, failure to deposit trust funds into escrow account, failure to provide sufficiently detailed closing statement and other misconduct constituted a violation of subsection (1)(n) was neither arbitrary nor capricious. Eckley v. Colo. Real Estate Comm’n, 752 P.2d 68 (Colo. 1988).

The imposition of sanctions is a discretionary function that cannot be overturned unless it is an abuse of that discretion. As long as the record as a whole provides sufficient evidence that the penalty is not manifestly excessive in relation to the misconduct and the public need, the penalty will be upheld. The “reasonable basis” standard does not apply to the review of an agency’s imposition of sanctions. Colo. Real Estate Comm’n v. Hanegan, 947 P.2d 933 (Colo. 1997).

The commission is not required to impose the same disciplinary sanction in all comparable cases. Colo. Real Estate Comm’n v. Bartlett, 272 P.3d 1099 (Colo. App. 2011).

Real estate commission may discipline real estate agents for related activities that do not require a license. Hart v. Colo. Real Estate Comm’n, 702 P.2d 763 (Colo. App. 1985).

Violation of requirements of this section may not be vindicated by action of another agency. The fact that liquor license authority issued license based upon certain documents does not cure violations of this section represented by those documents. Eckley v. Colo. Real Estate Comm’n, 752 P.2d 68 (Colo. 1988).

Private cause of action not inferred. In light of enforcement procedures provided in this section, coupled with lack of legislative intent authorizing a private cause of action, such a cause of action must not be inferred. Holter v. Moore & Co., 681 P.2d 962 (Colo. App. 1983).

Applied in Holter v. Moore & Co., 702 F.2d 854 (10th Cir. 1983); Hart v. Colo. Real Estate Comm’n, 702 P.2d 763 (Colo. App. 1985).

12-10-218. Affiliated business arrangements - definitions - disclosures - enforcement and penalties - reporting - rules - investigation information shared with the division of insurance.

  1. As used in this section, unless the context otherwise requires:
    1. “Affiliated business arrangement” means an arrangement in which:
      1. A provider of settlement services or an associate of a provider of settlement services has either an affiliate relationship with or a direct beneficial ownership interest of more than one percent in another provider of settlement services; and
      2. A provider of settlement services or the associate of a provider directly or indirectly refers settlement service business to another provider of settlement services or affirmatively influences the selection of another provider of settlement services.
    2. “Associate” means a person who has one or more of the following relationships with a person in a position to refer settlement service business:
      1. A spouse, parent, or child of the person;
      2. A corporation or business entity that controls, is controlled by, or is under common control with the person;
      3. An employer, officer, director, partner, franchiser, or franchisee of the person, including a broker acting as an independent contractor; or
      4. Anyone who has an agreement, arrangement, or understanding with the person, the purpose or substantial effect of which is to enable the person in a position to refer settlement service business to benefit financially from referrals of the business.
    3. “Settlement service” means any service provided in connection with a real estate settlement including, but not limited to, the following:
      1. Title searches;
      2. Title examinations;
      3. The provision of title certificates;
      4. Title insurance;
      5. Services rendered by an attorney;
      6. The preparation of title documents;
      7. Property surveys;
      8. The rendering of credit reports or appraisals;
      9. Real estate appraisal services;
      10. Home inspection services;
      11. Services rendered by a real estate broker;
      12. Pest and fungus inspections;
      13. The origination of a loan;
      14. The taking of a loan application;
      15. The processing of a loan;
      16. Underwriting and funding of a loan;
      17. Escrow handling services;
      18. The handling of the processing; and
      19. Closing of settlement.
    1. An affiliated business arrangement is permitted where the person referring business to the affiliated business arrangement receives payment only in the form of a return on an investment and where it does not violate the provisions of section 12-10-217.
    2. If a licensee or the employing broker of a licensee is part of an affiliated business arrangement when an offer to purchase real property is fully executed, the licensee shall disclose to all parties to the real estate transaction the existence of the arrangement. The disclosure shall be written, shall be signed by all parties to the real estate transaction, and shall comply with the federal “Real Estate Settlement Procedures Act of 1974”, as amended, 12 U.S.C. sec. 2601 et seq.
    3. A licensee shall not require the use of an affiliated business arrangement or a particular provider of settlement services as a condition of obtaining services from that licensee for any settlement service. For the purposes of this subsection (2)(c), “require the use” shall have the same meaning as “required use” in 24 CFR 3500.2 (b).
    4. No licensee shall give or accept any fee, kickback, or other thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or part of a settlement service involving an affiliated business arrangement shall be referred to any provider of settlement services.
    5. Nothing in this section shall be construed to prohibit payment of a fee to:
      1. An attorney for services actually rendered;
      2. A title insurance company to its duly appointed agent for services actually performed in the issuance of a policy of title insurance;
      3. A lender to its duly appointed agent for services actually performed in the making of a loan.
    6. Nothing in this section shall be construed to prohibit payment to any person of:
      1. A bona fide salary or compensation or other payment for goods or facilities actually furnished or for services actually performed;
      2. A fee pursuant to cooperative brokerage and referral arrangements or agreements between real estate brokers.
    7. It shall not be a violation of this section for an affiliated business arrangement:
      1. To require a buyer, borrower, or seller to pay for the services of any attorney, credit reporting agency, or real estate appraiser chosen by the lender to represent the lender’s interest in a real estate transaction; or
      2. If an attorney or law firm represents a client in a real estate transaction and issues or arranges for the issuance of a policy of title insurance in the transaction directly as agent or through a separate corporate title insurance agency that may be established by that attorney or law firm and operated as an adjunct to his or her law practice.
    8. No person shall be liable for a violation of this section if the person proves by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding maintenance of procedures that are reasonably adopted to avoid the error.
  2. On and after July 1, 2006, a licensee shall disclose at the time the licensee enters into or changes an affiliated business arrangement, in a form and manner acceptable to the commission, the names of all affiliated business arrangements to which the licensee is a party. The disclosure shall include the physical locations of the affiliated businesses.
  3. On and after July 1, 2006, an employing broker, in a form and manner acceptable to the commission, shall at least annually disclose the names of all affiliated business arrangements to which the employing broker is a party. The disclosure shall include the physical locations of the affiliated businesses.
  4. The commission may promulgate rules concerning the creation and conduct of an affiliated business arrangement, including, but not limited to, rules defining what constitutes a sham affiliated business arrangement. The commission shall adopt the rules, policies, or guidelines issued by the United States department of housing and urban development concerning the federal “Real Estate Settlement Procedures Act of 1974”, as amended, 12 U.S.C. sec. 2601 et seq. Rules adopted by the commission shall be at least as stringent as the federal rules and shall ensure that consumers are adequately informed about affiliated business arrangements. The commission shall consult with the insurance commissioner pursuant to section 10-11-124 (2), concerning rules, policies, or guidelines the insurance commissioner adopts concerning affiliated business arrangements. Neither the rules promulgated by the insurance commissioner nor the commission may create a conflicting regulatory burden on an affiliated business arrangement.
  5. The division of real estate may share information gathered during an investigation of an affiliated business arrangement with the division of insurance.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 636, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-113.2 as it existed prior to 2019.

ANNOTATION

Law reviews. For article, “Affiliated Business Arrangements: C ompliance with RESPA and H.B. 06-1141”, see 35 C olo. Law. 65 (Nov. 2006).

12-10-219. Hearing - administrative law judge - review - rules.

  1. Except as otherwise provided in this section, all proceedings before the commission with respect to disciplinary actions and denial of licensure under this part 2 and part 4 of this article 10 and certifications issued under part 5 of this article 10 shall be conducted by an administrative law judge pursuant to the provisions of sections 24-4-104 and 24-4-105.
  2. The proceedings shall be held in the county where the commission has its office or in such other place as the commission may designate. If the licensee is an employed broker, the commission shall also notify the broker employing the licensee by mailing, by first-class mail, a copy of the written notice required under section 24-4-104 (3) to the employing broker’s last-known business address.
  3. An administrative law judge shall conduct all hearings for denying, suspending, or revoking a license or certificate on behalf of the commission, subject to appropriations made to the department of personnel. Each administrative law judge shall be appointed pursuant to part 10 of article 30 of title 24. The administrative law judge shall conduct the hearing pursuant to the provisions of sections 24-4-104 and 24-4-105. No license shall be denied, suspended, or revoked until the commission has made its decision by a majority vote.
  4. The decision of the commission in any disciplinary action or denial of licensure under this section is subject to review by the court of appeals by appropriate proceedings under section 24-4-106 (11). In order to effectuate the purposes of parts 2, 4, and 5 of this article 10, the commission has the power to promulgate rules pursuant to article 4 of title 24. The commission may appear in court by its own attorney.
  5. Pursuant to the proceeding, the court has the right, in its discretion, to stay the execution or effect of any final order of the commission; but a hearing shall be held affording the parties an opportunity to be heard for the purpose of determining whether the public health, safety, and welfare would be endangered by staying the commission’s order. If the court determines that the order should be stayed, it shall also determine at the hearing the amount of the bond and adequacy of the surety, which bond shall be conditioned upon the faithful performance by the petitioner of all obligations as a real estate broker and upon the prompt payment of all damages arising from or caused by the delay in the taking effect of or enforcement of the order complained of and for all costs that may be assessed or required to be paid in connection with the proceedings.
  6. In any hearing conducted by the commission in which there is a possibility of the denial, suspension, or revocation of a license because of the conviction of a felony or of a crime involving moral turpitude, the commission shall be governed by the provisions of section 24-5-101.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 639, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-114 as it existed prior to 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Administrative hearing to revoke or suspend license is a disciplinary, not a criminal, proceeding. Seibel v. Colo. Real Estate Comm’n, 34 Colo. App. 415, 530 P.2d 1290 (1974).

Recording not required. Neither this section or the administrative procedure act require that proceedings of the commission to review a hearing officer’s initial decision in a disciplinary case be recorded. Ranum v. Colo. Real Estate Comm’n, 713 P.2d 418 (Colo. App. 1985).

12-10-220. Rules.

All rules adopted or amended by the commission are subject to sections 24-4-103 (8)(c) and (8)(d) and 24-34-104 (6)(b).

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 640, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-114.5 as it existed prior to 2019.

12-10-221. Broker remuneration.

It is unlawful for a real estate broker registered in the commission office as in the employ of another broker to accept a commission or valuable consideration for the performance of any of the acts specified in this part 2 from any person except the broker’s employer, who shall be a licensed real estate broker.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 640, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-117 as it existed prior to 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Applied in Broughall v. Black Forest Dev. Co., 196 Colo. 503, 593 P.2d 314 (1978); Holter v. Moore & Co., 702 F.2d 854 (10th Cir. 1983).

12-10-222. Acts of third parties - broker’s liability.

Any unlawful act or violation of any of the provisions of this part 2 upon the part of an employee, officer, or member of a licensed real estate broker shall not be cause for disciplinary action against a real estate broker, unless it appears to the satisfaction of the commission that the real estate broker had actual knowledge of the unlawful act or violation or had been negligent in the supervision of employees.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 640, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-118 as it existed prior to 2019.

12-10-223. Violations.

[ Editor’s note: This version of this section is effective until March 1, 2022. ] Any natural person, firm, partnership, limited liability company, association, or corporation violating the provisions of this part 2 by acting as real estate broker in this state without having obtained a license or by acting as real estate broker after the broker’s license has been revoked or during any period for which the license may have been suspended is guilty of a misdemeanor and, upon conviction thereof, if a natural person, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment and, if an entity, shall be punished by a fine of not more than five thousand dollars. A second violation, if by a natural person, shall be punishable by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 641, § 1, effective October 1. L. 2021: Entire section amended,(SB 21-271), ch. 462, p. 3153, § 134, effective March 1, 2022.

Editor’s note: (1) This section is similar to former § 12-61-119 as it existed prior to 2019.

(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.

ANNOTATION

To act without a license is made a criminal offense by this section. Cary v. Borden Co., 153 Colo. 344, 386 P.2d 585 (1963) (decided under former law).

12-10-223. Violations.

[ Editor’s note: This version of this section is effective March 1, 2022. ] Any natural person, firm, partnership, limited liability company, association, or corporation violating the provisions of this part 2 by acting as real estate broker in this state without having obtained a license or by acting as real estate broker after the broker’s license has been revoked or during any period for which the license may have been suspended commits a class 2 misdemeanor.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 641, § 1, effective October 1. L. 2021: Entire section amended,(SB 21-271), ch. 462, p. 3153, § 134, effective March 1, 2022.

12-10-224. Subpoena compelling attendance of witnesses and production of records and documents.

The commission, the director, or the administrative law judge appointed for hearings may issue a subpoena compelling the attendance and testimony of witnesses and the production of books, papers, or records pursuant to an investigation or hearing of the commission. The subpoenas shall be served in the same manner as subpoenas issued by district courts and shall be issued without discrimination between public or private parties requiring the attendance of witnesses and the production of documents at hearings. If a person fails or refuses to obey a subpoena issued by the commission, the director, or the appointed administrative law judge, the commission may petition the district court having jurisdiction for issuance of a subpoena in the premises, and the court shall, in a proper case, issue its subpoena. Any person who refuses to obey a subpoena shall be punished as provided in section 12-10-225.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 641, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-120 as it existed prior to 2019.

Cross references:

For the Colorado rule of civil procedure concerning subpoenas, see C.R.C.P. 45.

12-10-225. Failure to obey subpoena - penalty.

[ Editor’s note: This version of this section is effective until March 1, 2022. ] Any person who willfully fails or neglects to appear and testify or to produce books, papers, or records required by subpoena, duly served upon him or her in any matter conducted under parts 2 and 5 of this article 10, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of twenty-five dollars, or imprisonment in the county jail for not more than thirty days for each such offense, or by both such fine and imprisonment. Each day a person so refuses or neglects constitutes a separate offense.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 641, § 1, effective October 1. L. 2021: Entire section amended,(SB 21-271), ch. 462, p. 3153, § 135, effective March 1, 2022.

Editor’s note: (1) This section is similar to former § 12-61-121 as it existed prior to 2019.

(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.

12-10-225. Failure to obey subpoena - penalty.

[ Editor’s note: This version of this section is effective March 1, 2022. ] Any person who willfully fails or neglects to appear and testify or to produce books, papers, or records required by subpoena, duly served upon him or her in any matter conducted under parts 2 and 5 of this article 10 commits a petty offense. Each day a person so refuses or neglects constitutes a separate offense.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 641, § 1, effective October 1. L. 2021: Entire section amended,(SB 21-271), ch. 462, p. 3153, § 135, effective March 1, 2022.

12-10-226. Powers of commission - injunctions.

The commission may apply to a court of competent jurisdiction for an order enjoining any act or practice that constitutes a violation of parts 2 and 5 of this article 10, and, upon a showing that a person is engaging or intends to engage in any such act or practice, an injunction, restraining order, or other appropriate order shall be granted by the court regardless of the existence of another remedy therefor. Any notice, hearing, or duration of any injunction or restraining order shall be made in accordance with the provisions of the Colorado rules of civil procedure.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 641, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-122 as it existed prior to 2019.

Cross references:

For the Colorado rule of civil procedure concerning injunctions, see C.R.C.P. 65.

12-10-227. Repeal of part - subject to review.

This part 2 is repealed, effective September 1, 2026. Before the repeal, the division, including the commission, is scheduled for review in accordance with section 24-34-104.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 642, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-123 as it existed prior to 2019.

Part 3. Brokers’ Commissions

12-10-301. When entitled to commission.

No real estate agent or broker is entitled to a commission for finding a purchaser who is ready, willing, and able to complete the purchase of real estate as proposed by the owner until the same is consummated or is defeated by the refusal or neglect of the owner to consummate the same as agreed upon.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 642, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-201 as it existed prior to 2019.

ANNOTATION

Law reviews. For article, “A Decade of Colorado Law: Conflict of Laws, Security, Contracts, and Equity”, see 23 Rocky Mt. L. Rev. 247 (1951). For article, “One Year Review of Contracts”, see 34 Dicta 85 (1957). For article, “One Year Review of Corporations, Partnerships, and Agency”, see 34 Dicta 129 (1957). For note, “Real Estate Brokerage Commissions in Colorado”, see 35 Dicta 297 (1958). For note, “Colorado Real Estate Broker Listing Contracts”, see 35 U. Colo. L. Rev. 205 (1963). For article, “Finders and Finders’ Fees”, see 47 Den. L.J. 448 (1970).

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

When broker entitled to commission. The general rule is that a real estate broker, under a valid listing agreement, is entitled to recover a commission (1) when he produces a purchaser who is ready, willing, and able to purchase the property upon the terms designated by the principal, and (2) he is the efficient agent or procuring cause of the sale. Circle T Corp. v. Deerfield, 166 Colo. 238, 444 P.2d 404 (1968); Muck v. McKanna, 687 P.2d 1326 (Colo. App. 1984); Harding v. Lucero, 721 P.2d 695 (Colo. App. 1986); Real Equity Diversification v. Coville, 744 P.2d 756 (Colo. App. 1987); In re Ruetz, 317 B.R. 549 (Bankr. D. Colo. 2004).

Where a vendor refuses to consummate a transaction, and a deal fails because of such refusal, a broker is entitled to his commission. Gerbaz v. Hulsey, 132 Colo. 359, 288 P.2d 357 (1955).

When plaintiffs produced a purchaser ready, willing, and able to purchase the listed property in accordance with the terms and conditions prescribed by the owners, they were entitled to their commission. McCullough v. Thompson, 133 Colo. 352, 295 P.2d 221 (1956); Watson v. United Farm Agency, Inc., 165 Colo. 439, 439 P.2d 738 (1968).

If the actions of the lessor, or his neglect, defeated consummation of this lease, he is not to be relieved of his liability to pay the broker. M.R. Mansfield Realty, Inc. v. Sunshine, 38 Colo. App. 334, 561 P.2d 342 (1976), aff’d, 195 Colo. 95, 575 P.2d 847 (1978).

A broker is entitled to his commission if he produces a ready, willing, and able purchaser, even if the vendor, prior to execution of a contract, refuses to consummate the transaction and the deal fails because of such refusal. Colo. Inv. Servs., Inc., v. Hager, 685 P.2d 1371 (Colo. App. 1984).

Broker entitled to commission where the owner and the purchaser thereafter conduct further negotiations resulting in a change of the terms. Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033 (1961).

The broker must find the purchaser and the sale must proceed from his efforts acting as broker. Bradley Realty Inv. Co. v. Schwartz, 145 Colo. 65, 357 P.2d 638 (1960).

There is no presumption that purchaser is ready, willing, and able to purchase. Horton-Cavey Realty Co. v. Reese, 34 Colo. App. 323, 527 P.2d 914 (1974).

Burden of proof on agent. Real estate agent had the burden to establish not only its authority to act as the sales agent, but also that plaintiff had produced a purchaser who was ready, able, and willing to purchase on the terms proposed by sellers. Horton-Cavey Realty Co. v. Reese, 34 Colo. App. 323, 527 P.2d 914 (1974).

Broker’s right to receive the brokerage commission depends upon the terms of the listing agreement and the duties actually performed by the broker. Watson v. United Farm Agency, Inc., 165 Colo. 439, 439 P.2d 738 (1968).

The right to collect a commission is inchoate until the deal closes or the seller refuses or neglects to complete the deal. The contingent or inchoate nature of that interest does not negate the broker or agent’s right to receive a commission if the contingencies are satisfied. In re Ruetz, 317 B.R. 549 (Bankr. D. Colo. 2004).

Where by the agreement, the owners expressly agree to do certain things, and the broker does not expressly agree to do anything, courts uniformly hold that such a document is not a binding contract until some service is rendered by the broker looking to the sale of the property. Circle T Corp. v. Deerfield, 166 Colo. 238, 444 P.2d 404 (1968).

A broker who had a nonexclusive listing of property, and who failed to produce a purchaser, ready, willing, and able to buy the listed property upon terms satisfactory to the owner or upon any terms suggested by the owner, was not entitled to a commission upon the sale of the property by another broker. Ginsberg v. Frankenberg, 133 Colo. 382, 295 P.2d 1036 (1956).

Where the list furnished to the broker was not a written listing agreement, this meant that the seller had the privilege of refusing to accept the offer to purchase tendered by the broker on behalf of his client, and it therefore follows that no commission was due. Stavely v. Johnson, 157 Colo. 56, 400 P.2d 922 (1965).

A contract of employment may be oral or may be implied from the particular circumstances of the case. Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033 (1961); Fletcher v. Garrett, 167 Colo. 60, 445 P.2d 401 (1968); Harding v. Lucero, 721 P.2d 695 (Colo. App. 1986).

Where an antecedent oral listing agreement which was subsequently modified in writing was source of brokers’ employment and was not dependent upon a particular transaction, such agreement governed two separate and unrelated transactions by which property was sold to purchaser procured by brokers. Harding v. Lucero, 721 P.2d 695 (Colo. App. 1986).

The circumstances from which a contract may be implied seem to be two: first, that the broker or agent has rendered services, and is permitted to do so in such a manner as to indicate that he expected to be paid for these services; and second, that the services are beneficial to the party sought to be made liable. Chambers v. Shivers, 31 Colo. App. 16, 497 P.2d 327 (1972).

The broker’s right to remuneration for his service must be predicated on contractual relations existing between himself and the person against whom the alleged right is sought to be enforced. Chambers v. Shivers, 31 Colo. App. 16, 497 P.2d 327 (1972).

Where plaintiff broker failed to show that she had an expectation of being paid a commission by defendant, such failure is fatal to her claim of the existence of an implied contract, and she is not entitled to a commission. Chambers v. Shivers, 31 Colo. App. 16, 497 P.2d 327 (1972).

Absent contract so specifying, one cannot claim broker’s commission for merely participating in negotiating or closing transaction between ready buyer and willing seller since such services, as matter of law, are not procuring or efficient cause of sale. Stank v. Michaelson, 32 Colo. App. 75, 506 P.2d 757 (1973).

Where buyer planned to purchase specific property before he contacted plaintiff, and all plaintiff did was assist buyer in completing plan to purchase property, and where plaintiff was not efficient agent or procuring cause of sale, plaintiff was not entitled to broker’s commission in absence of contract so specifying. Stank v. Michaelson, 32 Colo. App. 75, 506 P.2d 757 (1973).

A broker cannot recover his fee where the principals merely conclude an executory contract, performance of which depends upon fulfillment of an express condition precedent, but the broker’s right to the commission could not be defeated by the owner’s failure to perform an unambiguous promise according to the agreed terms of sale. Watson v. United Farm Agency, Inc., 165 Colo. 439, 439 P.2d 738 (1968).

Where the fee is contingent upon the result achieved, the broker is entitled to receive the fee agreed upon regardless of the amount of time spent. Bamford v. Cope, 31 Colo. App. 161, 499 P.2d 639 (1972).

A broker who participates in a transaction resulting in the sale of property without authorization from the seller to act as his agent is not entitled to a commission from the seller. Chambers v. Shivers, 31 Colo. App. 16, 497 P.2d 327 (1972).

Where variation between offer and listing is substantial, seller is at liberty to reject offer without explanation, and the broker may not use the failure to state specific objections as grounds for claiming a commission. Horton-Cavey Realty Co. v. Reese, 34 Colo. App. 323, 527 P.2d 914 (1974).

Where an offer contains substantial additions to or variations from the terms of the listing agreement, the broker is not entitled to a commission, because he failed to perform according to the terms of his employment contract. Regardless of whether the seller is rejecting the offer because of the variations or simply because it has decided not to sell, the broker’s duty to submit an offer which substantially meets the terms of the listing agreement remains unfulfilled. Colo. City Dev. Co. v. Jones-Healy Realty, Inc., 195 Colo. 114, 576 P.2d 160 (1978).

A seller may not defeat a broker’s right to a commission by rejecting an offer solicited by his broker, without explanation, when the variations between the listing and the offer are of a minor nature. The basis for this rule is that the broker should be given an opportunity to rectify minor variations in order to earn his commission and the premise is that the broker may well be able to obtain concessions on minor problems from the prospective buyer. Horton-Cavey Realty Co. v. Reese, 34 Colo. App. 323, 527 P.2d 914 (1974).

A seller’s breach of the referral clause of an exclusive right-to-sell agreement entitles the broker to the commission authorized under the agreement when the conduct underlying the breach leads to a sale of the property. Where the seller intentionally concealed a prospective buyer from the broker, terminated the parties’ listing agreement, and then sold the property to the prospective buyer, the seller could not avoid paying the broker’s commission authorized under the listing agreement by claiming that the broker did not procure a ready, willing, and able buyer. Int’l Network, Inc. v. Woodard, 2 017 COA 44, 405 P.3d 4 2 4.

A realty company could recover a brokerage commission under an exclusive listing although it knew that the property stood in joint tenancy and did not secure the signature of one of the joint tenants on the exclusive listing agreement where the agreement was an extension of an earlier agreement which had been signed by both joint tenants, and the husband acted as an agent for his wife in signing the extension agreement who, by her acts and conduct, adopted and ratified the act of her husband. Helgerson v. Fort Collins Realty, Inc., 28 Colo. App. 180, 471 P.2d 630 (1970).

Vendor who does not commit bad faith or culpable conduct is not liable for commission, if sale does not go through and further negotiations between vendor and broker’s client result in transaction not contemplated by terms of listing agreement. Harding v. Lucero, 721 P.2d 695 (Colo. App. 1986).

Even though vendor may have breached exclusive listing agreement with real estate agent, agent was not entitled to commission because vendor’s sale of the property to partnership of which he was member is not a “sale or exchange” of the property. Cooley Inv. Co. v. Jones, 780 P.2d 29 (Colo. App. 1989).

Purchases by employee of realty firm. Where an employee of a realty firm makes an offer to purchase property which is the subject of that firm’s listing with the seller, the realty firm must establish that a full disclosure was made to the seller regarding the employment relationship; and that, following this disclosure, the seller consented to sell to the employee. Horton-Cavey Realty Co. v. Reese, 34 Colo. App. 323, 527 P.2d 914 (1974).

A real estate broker is not entitled to a commission for a sale where the purchaser failed to perform on stipulated date, and the broker’s contract with the vendor stated that time was of the essence. Dunton v. Stemme, 117 Colo. 327, 187 P.2d 593 (1947).

Where there is competent evidence from which the trier of the facts may find that a contract of employment was entered into, and that pursuant thereto the broker produced a purchaser ready, willing, and able to buy on the terms and at the price set by the vendor, and that the broker was the efficient agent or procuring cause of the sale, a finding in accordance therewith will not be disturbed. Palmer v. Gleason, 154 Colo. 145, 389 P.2d 90 (1964).

Evidence to establish broker’s right to commission held sufficient. Brand v. Merritt, 15 Colo. 286, 25 P. 175 (1890); Chambers v. Shivers, 31 Colo. App. 16, 497 P.2d 327 (1972).

Ordinarily, a broker suing on a contract providing for a fixed commission is entitled to that commission or nothing, because employment contracts with fixed commissions or salaries involve liquidated sums and therefore judgments in suits on them must be for the liquidated amounts or nothing, but the rule is rendered inapplicable where an erroneous verdict is induced by the conduct of defendant. Palmer v. Gleason, 154 Colo. 145, 389 P.2d 90 (1964).

Where an owner’s termination of a lease was due to an unreasonable understanding of a lease provision, the termination constituted a refusal or neglect to consummate the contract as agreed upon, and the broker was entitled to his commission. Sunshine v. M.R. Mansfield Realty, Inc., 195 Colo. 95, 575 P.2d 847 (1978).

Where broker not entitled to commission. Where completion of a sale was not prevented through any fault of the sellers but because the broker told sellers “not to appear at the closing unless they came up with cash or certified funds” to pay the broker’s fee, the broker himself thwarted the closing and is not entitled to a commission. Denver 1500, Inc. v. Wall, 43 Colo. App. 282, 602 P.2d 903 (1979).

Applied in Reese v. McVittie, 119 Colo. 29, 200 P.2d 390 (1948); Rankin v. McFerrin, 626 P.2d 720 (Colo. App. 1980); McGill Corp. v. Werner, 631 P.2d 1178 (Colo. App. 1981); Re/Max Suburban, Inc. v. Widener, 633 P.2d 530 (Colo. App. 1981).

12-10-302. Objections on account of title.

No real estate agent or broker is entitled to a commission when a proposed purchaser fails or refuses to complete his or her contract of purchase because of defects in the title of the owner, unless the owner, within a reasonable time, has the defects corrected by legal proceedings or otherwise.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 642, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-202 as it existed prior to 2019.

12-10-303. When owner must perfect title.

The owner shall not be required to begin legal or other proceedings for the correction of a title until the agent or broker secures from the proposed purchaser an enforceable contract in writing, binding him or her to complete the purchase whenever the defects in the title are corrected.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 642, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-203 as it existed prior to 2019.

12-10-304. Referral fees - conformity with federal law required - remedies for violation - definitions.

  1. A person licensed under part 2, 3, or 5 of this article 10 shall not pay or receive a referral fee except in accordance with the federal “Real Estate Settlement Procedures Act of 1974”, as amended, 12 U.S.C. sec. 2601 et seq., and unless reasonable cause for payment of the referral fee exists. A reasonable cause for payment means:
    1. An actual introduction of business has been made;
    2. A contractual referral fee relationship exists; or
    3. A contractual cooperative brokerage relationship exists.
    1. No person shall interfere with the brokerage relationship of a licensee.
    2. As used in this subsection (2):
      1. “Brokerage relationship” means a relationship entered into between a broker and a buyer, seller, landlord, or tenant under which the broker engages in any of the acts set forth in section 12-10-201 (6). A brokerage relationship is not established until a written brokerage agreement is entered into between the parties or is otherwise established by law.
      2. “Interfere with the brokerage relationship” means demanding a referral fee from a licensee without reasonable cause.
      3. “Referral fee” means any fee paid by a licensee to any person or entity, other than a cooperative commission offered by a listing broker to a selling broker or vice versa.
  2. Any person aggrieved by a violation of any provision of this section may bring a civil action in a court of competent jurisdiction. The prevailing party in any such action shall be entitled to actual damages and, in addition, the court may award an amount up to three times the amount of actual damages sustained as a result of any such violation plus reasonable attorney fees.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 642, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-203.5 as it existed prior to 2019.

12-10-305. Repeal of part - subject to review.

This part 3 is repealed, effective September 1, 2026. Before the repeal, this part 3 is scheduled for review in accordance with section 24-34-104.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 643, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-204 as it existed prior to 2019.

Part 4. Brokerage Relationships

Law reviews:

For article, “The New Brokerage Legislation: The Demise of ‘Agency By Surprise’”, see 22 C olo. Law. 1919 (1993); for article, “Designated Brokerage: C olorado Real Estate Agency Law Evolves Again”, see 32 Colo. Law. 11 (March 2003).

12-10-401. Legislative declaration.

  1. The general assembly finds, determines, and declares that the public will best be served through a better understanding of the public’s legal and working relationships with real estate brokers and by being able to engage any such real estate broker on terms and under conditions that the public and the real estate broker find acceptable. This includes engaging a broker as a single agent or transaction-broker. Individual members of the public should not be exposed to liability for acts or omissions of real estate brokers that have not been approved, directed, or ratified by the individuals. Further, the public should be advised of the general duties, obligations, and responsibilities of the real estate broker they engage.
  2. This part 4 is enacted to govern the relationships between real estate brokers and sellers, landlords, buyers, and tenants in real estate transactions.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 643, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-801 as it existed prior to 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

With this statute, Colorado was the first state to create a non-agent real estate broker. Sussman v. Stoner, 143 F. Supp. 2d 1232 (D. Colo. 2001).

By its terms, the statute does not impose upon a transaction-broker a duty to keep track of land or water values once land is under contract, or a duty to inform a seller that his land or water is worth more than the asking price. Sussman v. Stoner, 143 F. Supp. 2d 1232 (D. Colo. 2001).

Nor does it require that a transaction-broker advise a party that it is not in his or her best interest to accept a given offer. Such requirements are in conflict with the plain terms of the statute. Sussman v. Stoner, 143 F. Supp. 2d 1232 (D. Colo. 2001).

Section 12-61-807(1) clearly states that the transaction-broker is not an agent for either party, nor, according § 12-61-802(6), an advocate for the interests of any party to the transaction. Sussman v. Stoner, 143 F. Supp. 2d 1232 (D. Colo. 2001); Hoff & Leigh, Inc. v. Byler, 62 P.3d 1077 (Colo. App. 2002).

The statute also specifically forbids the broker from disclosing certain information that would give either side a negotiation advantage. Consequently, the broker may not disclose that a buyer is willing to accept less than stated, that a seller is willing to pay more than offered, motivating factors for the purchase or sale, or financing terms which a party might accept. Sussman v. Stoner, 143 F. Supp. 2d 1232 (D. Colo. 2001).

A broker who is allegedly fired for complying with disclosure rules can bring a claim against an employer for wrongful termination in violation of public policy. Mullin v. Hyatt Residential Group, Inc., 82 F. Supp. 3d 1248 (D. Colo. 2015).

12-10-402. Definitions.

As used in this part 4, unless the context otherwise requires:

  1. “Broker” shall have the same meaning as set forth in section 12-10-201 (6), except as otherwise specified in this part 4.
  2. “Customer” means a party to a real estate transaction with whom the broker has no brokerage relationship because the party has not engaged or employed a broker.
    1. “Designated broker” means an employing broker or employed broker who is designated in writing by an employing broker to serve as a single agent or transaction-broker for a seller, landlord, buyer, or tenant in a real estate transaction.
    2. “Designated broker” does not include a real estate brokerage firm that consists of only one licensed natural person.
  3. “Dual agent” means a broker who, with the written informed consent of all parties to a contemplated real estate transaction, is engaged as a limited agent for both the seller and buyer or both the landlord and tenant.
  4. “Limited agent” means an agent whose duties and obligations to a principal are only those set forth in section 12-10-404 or 12-10-405, with any additional duties and obligations agreed to pursuant to section 12-10-403 (5).
  5. “Single agent” means a broker who is engaged by and represents only one party in a real estate transaction. A single agent includes the following:
    1. “Buyer’s agent”, which means a broker who is engaged by and represents the buyer in a real estate transaction;
    2. “Landlord’s agent”, which means a broker who is engaged by and represents the landlord in a leasing transaction;
    3. “Seller’s agent”, which means a broker who is engaged by and represents the seller in a real estate transaction; and
    4. “Tenant’s agent”, which means a broker who is engaged by and represents the tenant in a leasing transaction.
  6. “Subagent” means a broker engaged to act for another broker in performing brokerage tasks for a principal. The subagent owes the same obligations and responsibilities to the principal as does the principal’s broker.
  7. “Transaction-broker” means a broker who assists one or more parties throughout a contemplated real estate transaction with communication, interposition, advisement, negotiation, contract terms, and the closing of the real estate transaction without being an agent or advocate for the interests of any party to the transaction. Upon agreement in writing pursuant to section 12-10-403 (2) or a written disclosure pursuant to section 12-10-408 (2)(c), a transaction-broker may become a single agent.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 643, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-802 as it existed prior to 2019.

ANNOTATION

Although this statute still allows a broker to act as an agent for a buyer or seller, unless a different relationship is established by the parties in writing, it is presumed that a broker is acting as a nonagent transaction-broker. Sussman v. Stoner, 143 F. Supp. 2d 1232 (D. Colo. 2001); Hoff & Leigh, Inc. v. Byler, 62 P.3d 1077 (Colo. App. 2002) (both decided under former law).

12-10-403. Relationships between brokers and the public - definition - rules.

  1. When engaged in any of the activities enumerated in section 12-10-201 (6), a broker may act in any transaction as a single agent or transaction-broker. The broker’s general duties and obligations arising from that relationship shall be disclosed to the seller and the buyer or to the landlord and the tenant pursuant to section 12-10-408.
  2. A broker shall be considered a transaction-broker unless a single agency relationship is established through a written agreement between the broker and the party or parties to be represented by the broker.
  3. A broker may work with a single party in separate transactions pursuant to different relationships including, but not limited to, selling one property as a seller’s agent and working with that seller in buying another property as a transaction-broker or buyer’s agent, but only if the broker complies with this part 4 in establishing the relationships for each transaction.
    1. A broker licensed pursuant to part 2 of this article 10, whether acting as a single agent or transaction-broker, may complete standard forms for use in a real estate transaction, including standard forms intended to convey personal property as part of the real estate transaction, when a broker is performing the activities enumerated or referred to in section 12-10-201 (6) in the transaction.
    2. As used in this subsection (4), “standard form” means:
      1. A form promulgated by the real estate commission for current use by brokers, also referred to in this section as a “commission-approved form”;
      2. A form drafted by a licensed Colorado attorney representing the broker, employing broker, or brokerage firm, so long as the name of the attorney or law firm and the name of the broker, employing broker, or brokerage firm for whom the form is prepared are included on the form itself;
      3. A form provided by a party to the transaction if the broker is acting in the transaction as either a transaction-broker or as a single agent for the party providing the form to the broker, so long as the broker retains written confirmation that the form was provided by a party to the transaction;
      4. A form prescribed by a governmental agency, a quasi-governmental agency, or a lender regulated by state or federal law, if use of the form is mandated by the agency or lender;
      5. A form issued with the written approval of the Colorado Bar Association or its successor organization and specifically designated for use by brokers in Colorado, so long as the form is used within any guidelines or conditions specified by the Colorado Bar Association or successor organization in connection with the use of the form;
      6. A form used for disclosure purposes only, if the disclosure does not purport to waive or create any legal rights or obligations affecting any party to the transaction and if the form provides only information concerning either:
        1. The real estate involved in the transaction specifically; or
        2. The geographic area in which the real estate is located generally;
      7. A form prescribed by a title company that is providing closing services in a transaction for which the broker is acting either as a transaction-broker or as a single agent for a party to the transaction; or
      8. A letter of intent created or prepared by a broker, employing broker, or brokerage firm, so long as the letter of intent states on its face that it is nonbinding and creates no legal rights or obligations.
    3. A broker shall use a commission-approved form when such a form exists and is appropriate for the transaction. A broker’s use of any standard form described in subsection (4)(b)(III) or (4)(b)(IV) of this section must be limited to inserting transaction-specific information within the form. In using standard forms described in subsection (4)(b)(II), (4)(b)(V), (4)(b)(VI), (4)(b)(VII), or (4)(b)(VIII) of this section, the broker may also advise the parties as to effects thereof, and the broker’s use of those standard forms must be appropriate for the transaction and the circumstances in which they are used. In any transaction described in this subsection (4), the broker shall advise the parties that the forms have important legal consequences and that the parties should consult legal counsel before signing the forms.
  4. Nothing contained in this section shall prohibit the public from entering into written contracts with any broker that contain duties, obligations, or responsibilities that are in addition to those specified in this part 4.
    1. If a real estate brokerage firm has more than one licensed natural person, the employing broker or an individual broker employed or engaged by that employing broker shall be designated to work with the seller, landlord, buyer, or tenant as a designated broker. The employing broker may designate more than one of its individual brokers to work with a seller, landlord, buyer, or tenant.
    2. The brokerage relationship established between the seller, landlord, buyer, or tenant and a designated broker, including the duties, obligations, and responsibilities of that relationship, shall not extend to the employing broker nor to any other broker employed or engaged by that employing broker who has not been so designated and shall not extend to the firm, partnership, limited liability company, association, corporation, or other entity that employs the broker.
    3. A real estate broker may have designated brokers working as single agents for a seller or landlord and a buyer or tenant in the same real estate transaction without creating dual agency for the employing real estate broker, or any broker employed or engaged by that employing real estate broker.
    4. An individual broker may be designated to work for both a seller or landlord and a buyer or tenant in the same transaction as a transaction-broker for both, as a single agent for the seller or landlord treating the buyer or tenant as a customer, or as a single agent for a buyer or tenant treating the seller or landlord as a customer, but not as a single agent for both. The applicable designated broker relationship shall be disclosed in writing to the seller or landlord and buyer or tenant in a timely manner pursuant to rules promulgated by the real estate commission.
    5. A designated broker may work with a seller or landlord in one transaction and work with a buyer or tenant in another transaction.
    6. When a designated broker serves as a single agent pursuant to section 12-10-404 or 12-10-405, there shall be no imputation of knowledge to the employing or employed broker who has not been so designated.
    7. The extent and limitations of the brokerage relationship with the designated broker shall be disclosed to the seller, landlord, buyer, or tenant working with that designated broker pursuant to section 12-10-408.
  5. No seller, buyer, landlord, or tenant shall be vicariously liable for a broker’s acts or omissions that have not been approved, directed, or ratified by the seller, buyer, landlord, or tenant.
  6. Nothing in this section shall be construed to limit the employing broker’s or firm’s responsibility to supervise licensees employed by the broker or firm nor to shield the broker or firm from vicarious liability.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 644, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-803 as it existed prior to 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Although this statute still allows a broker to act as an agent for a buyer or seller, unless a different relationship is established by the parties in writing, it is presumed that a broker is acting as a nonagent transaction-broker. Sussman v. Stoner, 143 F. Supp. 2d 1232 (D. Colo. 2001); Hoff & Leigh, Inc. v. Byler, 62 P.3d 1077 (Colo. App. 2002).

The commission’s standardized forms set forth the basic contractual rights and remedies for buyers and sellers of real property in Colorado. Albright v. McDermond, 14 P.3d 318 (Colo. 2000).

12-10-404. Single agent engaged by seller or landlord.

  1. A broker engaged by a seller or landlord to act as a seller’s agent or a landlord’s agent is a limited agent with the following duties and obligations:
    1. To perform the terms of the written agreement made with the seller or landlord;
    2. To exercise reasonable skill and care for the seller or landlord;
    3. To promote the interests of the seller or landlord with the utmost good faith, loyalty, and fidelity, including, but not limited to:
      1. Seeking a price and terms that are acceptable to the seller or landlord; except that the broker shall not be obligated to seek additional offers to purchase the property while the property is subject to a contract for sale or to seek additional offers to lease the property while the property is subject to a lease or letter of intent to lease;
      2. Presenting all offers to and from the seller or landlord in a timely manner regardless of whether the property is subject to a contract for sale or a lease or letter of intent to lease;
      3. Disclosing to the seller or landlord adverse material facts actually known by the broker;
      4. Counseling the seller or landlord as to any material benefits or risks of a transaction that are actually known by the broker;
      5. Advising the seller or landlord to obtain expert advice as to material matters about which the broker knows but the specifics of which are beyond the expertise of the broker;
      6. Accounting in a timely manner for all money and property received; and
      7. Informing the seller or landlord that the seller or landlord shall not be vicariously liable for the acts of the seller’s or landlord’s agent that are not approved, directed, or ratified by the seller or landlord;
    4. To comply with all requirements of this article 10 and any rules promulgated pursuant to this article 10; and
    5. To comply with any applicable federal, state, or local laws, rules, regulations, or ordinances including fair housing and civil rights statutes or regulations.
  2. The following information shall not be disclosed by a broker acting as a seller’s or landlord’s agent without the informed consent of the seller or landlord:
    1. That a seller or landlord is willing to accept less than the asking price or lease rate for the property;
    2. What the motivating factors are for the party selling or leasing the property;
    3. That the seller or landlord will agree to financing terms other than those offered;
    4. Any material information about the seller or landlord unless disclosure is required by law or failure to disclose the information would constitute fraud or dishonest dealing; or
    5. Any facts or suspicions regarding circumstances that may psychologically impact or stigmatize any real property pursuant to section 38-35.5-101.
    1. A broker acting as a seller’s or landlord’s agent owes no duty or obligation to the buyer or tenant; except that a broker shall, subject to the limitations of section 38-35.5-101, concerning psychologically impacted property, disclose to any prospective buyer or tenant all adverse material facts actually known by the broker. The adverse material facts may include but shall not be limited to adverse material facts pertaining to the title and the physical condition of the property, any material defects in the property, and any environmental hazards affecting the property that are required by law to be disclosed.
    2. A seller’s or landlord’s agent owes no duty to conduct an independent inspection of the property for the benefit of the buyer or tenant and owes no duty to independently verify the accuracy or completeness of any statement made by the seller or landlord or any independent inspector.
  3. A seller’s or landlord’s agent may show alternative properties not owned by the seller or landlord to prospective buyers or tenants and may list competing properties for sale or lease and not be deemed to have breached any duty or obligation to the seller or landlord.
  4. A designated broker acting as a seller’s or landlord’s agent may cooperate with other brokers but may not engage or create any subagents.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 647, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-804 as it existed prior to 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Broker breached its duty of loyalty by pressuring its principal to sell the property subject to the parties’ listing contract and by failing to disclose information material to the contract. Mabry v. Tom Stanger & Co., 33 P.3d 1206 (Colo. App. 2001).

Certificate of review required by § 13-20-602 is not a prerequisite to a lawsuit based on a licensed real estate broker’s alleged violation of subsection (3)(a) of this section. Expert testimony would not ordinarily be necessary to prove such a claim. Baumgarten v. Coppage, 15 P.3d 304 (Colo. App. 2000).

12-10-405. Single agent engaged by buyer or tenant.

  1. A broker engaged by a buyer or tenant to act as a buyer’s or tenant’s agent shall be a limited agent with the following duties and obligations:
    1. To perform the terms of the written agreement made with the buyer or tenant;
    2. To exercise reasonable skill and care for the buyer or tenant;
    3. To promote the interests of the buyer or tenant with the utmost good faith, loyalty, and fidelity, including, but not limited to:
      1. Seeking a price and terms that are acceptable to the buyer or tenant; except that the broker shall not be obligated to seek other properties while the buyer is a party to a contract to purchase property or while the tenant is a party to a lease or letter of intent to lease;
      2. Presenting all offers to and from the buyer or tenant in a timely manner regardless of whether the buyer is already a party to a contract to purchase property or the tenant is already a party to a contract or a letter of intent to lease;
      3. Disclosing to the buyer or tenant adverse material facts actually known by the broker;
      4. Counseling the buyer or tenant as to any material benefits or risks of a transaction that are actually known by the broker;
      5. Advising the buyer or tenant to obtain expert advice as to material matters about which the broker knows but the specifics of which are beyond the expertise of the broker;
      6. Accounting in a timely manner for all money and property received; and
      7. Informing the buyer or tenant that the buyer or tenant shall not be vicariously liable for the acts of the buyer’s or tenant’s agent that are not approved, directed, or ratified by the buyer or tenant;
    4. To comply with all requirements of this article 10 and any rules promulgated pursuant to this article 10; and
    5. To comply with any applicable federal, state, or local laws, rules, regulations, or ordinances including fair housing and civil rights statutes or regulations.
  2. The following information shall not be disclosed by a broker acting as a buyer’s or tenant’s agent without the informed consent of the buyer or tenant:
    1. That a buyer or tenant is willing to pay more than the purchase price or lease rate for the property;
    2. What the motivating factors are for the party buying or leasing the property;
    3. That the buyer or tenant will agree to financing terms other than those offered;
    4. Any material information about the buyer or tenant unless disclosure is required by law or failure to disclose the information would constitute fraud or dishonest dealing; or
    5. Any facts or suspicions regarding circumstances that would psychologically impact or stigmatize any real property pursuant to section 38-35.5-101.
    1. A broker acting as a buyer’s or tenant’s agent owes no duty or obligation to the seller or landlord; except that the broker shall disclose to any prospective seller or landlord all adverse material facts actually known by the broker including but not limited to adverse material facts concerning the buyer’s or tenant’s financial ability to perform the terms of the transaction and whether the buyer intends to occupy the property to be purchased as a principal residence.
    2. A buyer’s or tenant’s agent owes no duty to conduct an independent investigation of the buyer’s or tenant’s financial condition for the benefit of the seller or landlord and owes no duty to independently verify the accuracy or completeness of statements made by the buyer or tenant or any independent inspector.
  3. A buyer’s or tenant’s agent may show properties in which the buyer or tenant is interested to other prospective buyers or tenants without breaching any duty or obligation to the buyer or tenant. Nothing in this section shall be construed to prohibit a buyer’s or tenant’s agent from showing competing buyers or tenants the same property and from assisting competing buyers or tenants in attempting to purchase or lease a particular property.
  4. A broker acting as a buyer’s or tenant’s agent owes no duty to conduct an independent inspection of the property for the benefit of the buyer or tenant and owes no duty to independently verify the accuracy or completeness of statements made by the seller, landlord, or independent inspectors; except that nothing in this subsection (5) shall be construed to limit the broker’s duties and obligations imposed pursuant to subsection (1) of this section.
  5. A broker acting as a buyer’s or tenant’s agent may cooperate with other brokers but may not engage or create any subagents.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 648, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-805 as it existed prior to 2019.

12-10-406. Dual agent.

A broker shall not establish dual agency with any seller, landlord, buyer, or tenant.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 650, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-806 as it existed prior to 2019.

12-10-407. Transaction-broker.

  1. A broker engaged as a transaction-broker is not an agent for either party.
  2. A transaction-broker shall have the following obligations and responsibilities:
    1. To perform the terms of any written or oral agreement made with any party to the transaction;
    2. To exercise reasonable skill and care as a transaction-broker, including, but not limited to:
      1. Presenting all offers and counteroffers in a timely manner regardless of whether the property is subject to a contract for sale or lease or letter of intent;
      2. Advising the parties regarding the transaction and suggesting that the parties obtain expert advice as to material matters about which the transaction-broker knows but the specifics of which are beyond the expertise of the broker;
      3. Accounting in a timely manner for all money and property received;
      4. Keeping the parties fully informed regarding the transaction;
      5. Assisting the parties in complying with the terms and conditions of any contract including closing the transaction;
      6. Disclosing to all prospective buyers or tenants any adverse material facts actually known by the broker including but not limited to adverse material facts pertaining to the title, the physical condition of the property, any defects in the property, and any environmental hazards affecting the property required by law to be disclosed;
      7. Disclosing to any prospective seller or landlord all adverse material facts actually known by the broker including but not limited to adverse material facts pertaining to the buyer’s or tenant’s financial ability to perform the terms of the transaction and the buyer’s intent to occupy the property as a principal residence; and
      8. Informing the parties that as seller and buyer or as landlord and tenant they shall not be vicariously liable for any acts of the transaction-broker;
    3. To comply with all requirements of this article 10 and any rules promulgated pursuant to this article 10; and
    4. To comply with any applicable federal, state, or local laws, rules, regulations, or ordinances including fair housing and civil rights statutes or regulations.
  3. The following information shall not be disclosed by a transaction-broker without the informed consent of all parties:
    1. That a buyer or tenant is willing to pay more than the purchase price or lease rate offered for the property;
    2. That a seller or landlord is willing to accept less than the asking price or lease rate for the property;
    3. What the motivating factors are for any party buying, selling, or leasing the property;
    4. That a seller, buyer, landlord, or tenant will agree to financing terms other than those offered;
    5. Any facts or suspicions regarding circumstances that may psychologically impact or stigmatize any real property pursuant to section 38-35.5-101; or
    6. Any material information about the other party unless disclosure is required by law or failure to disclose the information would constitute fraud or dishonest dealing.
  4. A transaction-broker has no duty to conduct an independent inspection of the property for the benefit of the buyer or tenant and has no duty to independently verify the accuracy or completeness of statements made by the seller, landlord, or independent inspectors.
  5. A transaction-broker has no duty to conduct an independent investigation of the buyer’s or tenant’s financial condition or to verify the accuracy or completeness of any statement made by the buyer or tenant.
  6. A transaction-broker may do the following without breaching any obligation or responsibility:
    1. Show alternative properties not owned by the seller or landlord to a prospective buyer or tenant;
    2. List competing properties for sale or lease;
    3. Show properties in which the buyer or tenant is interested to other prospective buyers or tenants; and
    4. Serve as a single agent or transaction-broker for the same or for different parties in other real estate transactions.
  7. There shall be no imputation of knowledge or information between any party and the transaction-broker or among persons within an entity engaged as a transaction-broker.
  8. A transaction-broker may cooperate with other brokers but shall not engage or create any subagents.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 650, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-807 as it existed prior to 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

A transaction-broker has certain statutory obligations and responsibilities as expressed in subsections (2) and (3). Hoff & Leigh, Inc. v. Byler, 62 P.3d 1077 (Colo. App. 2002).

A transaction-broker is required to provide all the services listed in subsection ( 2 ) and may not enter into a contract that disclaims responsibility for these statutorily required services. To enter into such a contract is a violation of former § 1 2 -61-113 (1)(k) and (1)(n) (now § 12-10-217 (1)(m) and (1)(q)). Colo. Real Estate Comm’n v. Vizzi, 2019 COA 33, __ P.3d __ (decided under former § 12-61-807).

Subsection (2)(b)(I) requires that transaction-brokers communicate all offers and counteroffers directly to the seller of real estate. Mullin v. Hyatt Residential Group, Inc., 82 F. Supp. 3d 1248 (D. Colo. 2015).

Although the statute enumerates the obligations and responsibilities of a transaction-broker, it does not prescribe a remedy for nonperformance of these obligations. Hoff & Leigh, Inc. v. Byler, 62 P.3d 1077 (Colo. App. 2002).

A transaction-broker has no duty to investigate whether an assertion is true. The statute clearly states that a transaction-broker is under no duty to independently verify the accuracy or completeness of statements made by the seller or independent inspectors for the benefit of the buyer. Barfield v. Hall Realty, Inc., 232 P.3d 286 (Colo. App. 2010).

12-10-408. Broker disclosures.

    1. Any person, firm, partnership, limited liability company, association, or corporation acting as a broker shall adopt a written office policy that identifies and describes the relationships offered to the public by the broker.
    2. A broker shall not be required to offer or engage in any one or in all of the brokerage relationships enumerated in section 12-10-404, 12-10-405, or 12-10-407.
    3. Written disclosures and written agreements required by subsection (2) of this section shall contain a statement to the seller, landlord, buyer, or tenant that different brokerage relationships are available that include buyer agency, seller agency, or status as a transaction-broker. Should the seller, landlord, buyer, or tenant request information or ask questions concerning a brokerage relationship not offered by the broker pursuant to the broker’s written office policy enumerated in subsection (1)(a) of this section, the broker shall provide to the party a written definition of that brokerage relationship that has been promulgated by the real estate commission.
    4. Disclosures made in accordance with this part 4 shall be sufficient to disclose brokerage relationships to the public.
      1. Prior to engaging in any of the activities enumerated in section 12-10-201 (6), a transaction-broker shall disclose in writing to the party to be assisted that the broker is not acting as agent for the party and that the broker is acting as a transaction-broker.
      2. As part of each relationship entered into by a broker pursuant to subsection (2)(a)(I) of this section, written disclosure shall be made that shall contain a signature block for the buyer, seller, landlord, or tenant to acknowledge receipt of the disclosure. The disclosure and acknowledgment, by itself, shall not constitute a contract with the broker. If the buyer, seller, landlord, or tenant chooses not to sign the acknowledgment, the broker shall note that fact on a copy of the disclosure and shall retain the copy.
      3. If the transaction-broker undertakes any obligations or responsibilities in addition to or different from those set forth in section 12-10-407, the obligations or responsibilities shall be disclosed in a writing that shall be signed by the involved parties.
    1. Prior to engaging in any of the activities enumerated in section 12-10-201 (6), a broker intending to establish a single agency relationship with a seller, landlord, buyer, or tenant shall enter into a written agency agreement with the party to be represented. The agreement shall disclose the duties and responsibilities specified in section 12-10-404 or 12-10-405, as applicable. Notice of the single agency relationship shall be furnished to any prospective party to the proposed transaction in a timely manner.
      1. Prior to engaging in any of the activities enumerated in section 12-10-201 (6), a broker intending to work with a buyer or tenant as an agent of the seller or landlord shall provide a written disclosure to the buyer or tenant that shall contain the following:
        1. A statement that the broker is an agent for the seller or landlord and is not an agent for the buyer or tenant;
        2. A list of the tasks that the agent intends to perform for the seller or landlord with the buyer or tenant; and
        3. A statement that the buyer or tenant shall not be vicariously liable for the acts of the agent unless the buyer or tenant approves, directs, or ratifies the acts.
      2. The written disclosure required pursuant to subsection (2)(c)(I) of this section shall contain a signature block for the buyer or tenant to acknowledge receipt of the disclosure. The disclosure and acknowledgment, by itself, shall not constitute a contract with the broker. If the buyer or tenant does not sign the disclosure, the broker shall note that fact on a copy of the disclosure and retain the copy.
    2. A broker who has already established a relationship with one party to a proposed transaction shall advise at the earliest reasonable opportunity any other potential parties or their agents of the established relationship.
      1. Prior to engaging in any of the activities enumerated in section 12-10-201 (6), the seller, buyer, landlord, or tenant shall be advised in any written agreement with a broker that the brokerage relationship exists only with the designated broker, does not extend to the employing broker or to any other brokers employed or engaged by the employing broker who are not so designated, and does not extend to the brokerage company.
      2. Nothing in this subsection (2)(e) shall be construed to limit the employing broker’s or firm’s responsibility to supervise licensees employed by the broker or firm nor to shield the broker or firm from vicarious liability.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 652, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-808 as it existed prior to 2019.

ANNOTATION

This section does not permit a broker to contract away any of the duties required in former § 1 2 -61-807 (now § 2 12-10-407). This section deals with required disclosures and not with the broker’s required duties. Colo. Real Estate Comm’n v. Vizzi, 2019 COA 33, __ P.3d __ (decided under former § 12-61-808).

12-10-409. Duration of relationship.

    1. The relationships set forth in this part 4 shall commence at the time that the broker is engaged by a party and shall continue until performance or completion of the agreement by which the broker was engaged.
    2. If the agreement by which the broker was engaged is not performed or completed for any reason, the relationship shall end at the earlier of the following:
      1. Any date of expiration agreed upon by the parties;
      2. Any termination or relinquishment of the relationship by the parties; or
      3. One year after the date of the engagement.
    1. Except as otherwise agreed to in writing and pursuant to subsection (2)(b) of this section, a broker engaged as a seller’s agent or buyer’s agent owes no further duty or obligation after termination or expiration of the contract or completion of performance.
    2. Notwithstanding subsection (2)(a) of this section, a broker shall be responsible after termination or expiration of the contract or completion of performance for the following:
      1. Accounting for all money and property related to and received during the engagement; and
      2. Keeping confidential all information received during the course of the engagement that was made confidential by request or instructions from the engaging party unless:
        1. The engaging party grants written consent to disclose the information;
        2. Disclosure of the information is required by law; or
        3. The information is made public or becomes public by the words or conduct of the engaging party or from a source other than the broker.
  1. Except as otherwise agreed to in writing, a transaction-broker owes no further obligation or responsibility to the engaging party after termination or expiration of the contract for performance or completion of performance; except that the broker shall account for all money and property related to and received during the engagement.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 654, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-809 as it existed prior to 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

The terms of a brokerage agreement govern the duration of the relationship between the parties to the agreement, and the one-year limitation applies only to those agreements as to which there has not been completion of performance in accordance with their terms. Where performance had begun and was continuing at the end of the first year of an agreement structured with a one-year term and two automatic renewal periods, completion of performance within the terms of the agreement was still capable of being achieved. Only in the absence of completion of performance within the terms of the agreement do statutory alternatives apply. Prop. Asset Brokerage, LLC v. Magna Assocs. Liquidating Trust, 992 P.2d 654 (Colo. App. 1999).

Broker’s obligations extended past the expiration of the exclusive listing agreement and continued until the performance or completion of the agreement; thus, the broker’s relationship to the engaging party was not converted to a transaction-broker and the broker continued to owe the engaging party the duties owed by a seller’s agent. Mabry v. Tom Stanger & Co., 33 P.3d 1206 (Colo. App. 2001).

12-10-410. Compensation.

  1. In any real estate transaction, the broker’s compensation may be paid by the seller, the buyer, the landlord, the tenant, a third party, or by the sharing or splitting of a commission or compensation between brokers.
  2. Payment of compensation shall not be construed to establish an agency relationship between the broker and the party who paid the compensation.
  3. A seller or landlord may agree that a transaction-broker or single agent may share the commission or other compensation paid by the seller or landlord with another broker.
  4. A buyer or tenant may agree that a single agent or transaction-broker may share the commission or other compensation paid by the buyer or tenant with another broker.
  5. A buyer’s or tenant’s agent shall obtain the written approval of the buyer or tenant before the agent may propose to the seller’s or landlord’s agent that the buyer’s or tenant’s agent be compensated by sharing compensation paid by the seller or landlord.
  6. Prior to entering into a brokerage or listing agreement or a contract to buy, sell, or lease, the identity of those parties, persons, or entities paying compensation or commissions to any broker shall be disclosed to the parties to the transaction.
  7. A broker may be compensated by more than one party for services in a transaction if those parties have consented in writing to such multiple payments prior to entering into a contract to buy, sell, or lease.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 655, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-810 as it existed prior to 2019.

12-10-411. Violations.

The violation of any provision of this part 4 by a broker constitutes an act pursuant to section 12-10-217 (1)(m) for which the real estate commission may investigate and take administrative action against any such broker pursuant to sections 12-10-217 and 12-10-219.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 655, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-811 as it existed prior to 2019.

Part 5. Subdivisions

Cross references:

For regulation of subdivisions by planning commissions, see part 1 of article 28 of title 30 and part 2 of article 23 of title 31.

12-10-501. Definitions.

As used in this part 5, unless the context otherwise requires:

  1. “Commission” means the real estate commission established under section 12-10-206.
  2. “Developer” means any person, as defined in section 2-4-401 (8), that participates as owner, promoter, or sales agent in the promotion, sale, or lease of a subdivision or any part thereof.
    1. “Subdivision” means any real property divided into twenty or more interests intended solely for residential use and offered for sale, lease, or transfer.
      1. The term “subdivision” also includes:
        1. The conversion of an existing structure into a common interest community, as defined in article 33.3 of title 38, of twenty or more residential units;
        2. A group of twenty or more time shares intended for residential use; and
        3. A group of twenty or more proprietary leases in a cooperative housing corporation, as described in article 33.5 of title 38.
      2. The term “subdivision” does not include:
        1. The selling of memberships in campgrounds;
        2. Bulk sales and transfers between developers;
        3. Property upon which there has been or upon which there will be erected residential buildings that have not been previously occupied and where the consideration paid for the property includes the cost of the buildings;
        4. Lots that, at the time of closing of a sale or occupancy under a lease, are situated on a street or road and street or road system improved to standards at least equal to streets and roads maintained by the county, city, or town in which the lots are located; have a feasible plan to provide potable water and sewage disposal; and have telephone and electricity facilities and systems adequate to serve the lots, which facilities and systems are installed and in place on the lots or in a street, road, or easement adjacent to the lots and which facilities and systems comply with applicable state, county, municipal, or other local laws, rules, and regulations; or any subdivision that has been or is required to be approved after September 1, 1972, by a regional, county, or municipal planning authority pursuant to article 28 of title 30 or article 23 of title 31;
        5. Sales by public officials in the official conduct of their duties.
  3. “Time share” means a time share estate, as defined in section 38-33-110 (5), or a time share use, but the term does not include group reservations made for convention purposes as a single transaction with a hotel, motel, or condominium owner or association. For the purposes of this subsection (4), “time share use” means a contractual or membership right of occupancy, that cannot be terminated at the will of the owner, for life or for a term of years, to the recurrent, exclusive use or occupancy of a lot, parcel, unit, or specific or nonspecific segment of real property, annually or on some other periodic basis, for a period of time that has been or will be allotted from the use or occupancy periods into which the property has been divided.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 655, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-401 as it existed prior to 2019.

Cross references:

For additional definitions relating to this part 5, see § 38-30-150.

ANNOTATION

Law reviews. For article, “1974 Land Use Legislation in C olorado”, see 51 Den. L.J. 467 (1974). For article, “Representing a Purchaser of a Time Share”, see 11 C olo. Law. 1543 (1982).

Annotator’s note. The following annotations include a case decided under former § 118-16-1, C.R.S. 1963.

Trial court erred in declaring §§ 12-61-401 to 12-61-407 unconstitutional. People v. Maxwell, 162 Colo. 495, 427 P.2d 310 (1967).

The classification of subdividers is based upon a need, believed justified by the general assembly, to require registration and certain information from large subdividers for the benefit and financial safety of the public to deal with such a subdivider. People v. Maxwell, 162 Colo. 495, 427 P.2d 310 (1967).

12-10-502. Registration required.

  1. Unless exempt under the provisions of section 12-10-501 (3), a developer, before selling, leasing, or transferring or agreeing or negotiating to sell, lease, or transfer, directly or indirectly, any subdivision or any part thereof, shall register pursuant to this part 5.
  2. Upon approval by the commission, a developer who has applied for registration pursuant to section 12-10-503 may offer reservations in a subdivision during the pendency of the application and until the application is granted or denied if the fees for the reservations are held in trust by an independent third party and are fully refundable.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 657, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-402 as it existed prior to 2019.

ANNOTATION

Law reviews. For article, “Residential C ondominium C onversions”, see 11 Colo. Law. 2790 (1982).

Annotator’s note. The following annotations include a case decided under former § 118-16-2, C.R.S. 1963.

The purpose of the general assembly is to eliminate fraudulent promotions, and this is a proper exercise of the police power, which may be exercised not only to protect the health, safety, and morals of the public, but also to safeguard the public from financial loss caused by the fraud of others. People v. Maxwell, 162 Colo. 495, 427 P.2d 310 (1967).

The registration of subdivision developers statute requires that subdivision developers of a tract containing a group of 20 or more building sites not intended for commercial or industrial use must apply to the real estate commission and receive a certificate of registration as a subdivision developer before engaging in the promotion and sale of the sites. People v. Maxwell, 162 Colo. 495, 427 P.2d 310 (1967).

12-10-503. Application for registration.

  1. Every person who is required to register as a developer under this part 5 shall submit to the commission an application that contains the information described in subsections (2) and (3) of this section. If the information is not submitted, the commission may deny the application for registration. If a developer is currently regulated in another state that has registration requirements substantially equivalent to the requirements of this part 5 or that provide substantially comparable protection to a purchaser, the commission may accept proof of the registration along with the developer’s disclosure or equivalent statement from the other state in full or partial satisfaction of the information required by this section. In addition, the applicant shall be under a continuing obligation to notify the commission within ten days of any change in the information so submitted, and a failure to do so shall be a cause for disciplinary action.
    1. Registration information concerning the developer shall include:
      1. The principal office of the applicant wherever situate;
      2. The location of the principal office and the branch offices of the applicant in this state;
      3. The names and residence and business addresses of all natural persons who have a twenty-four percent or greater financial or ultimate beneficial interest in the business of the developer, either directly or indirectly, as principal, manager, member, partner, officer, director, or stockholder, specifying each such person’s capacity, title, and percentage of ownership. If no natural person has a twenty-four percent or greater financial or beneficial interest in the business of the developer, the information required in this subsection (2)(a)(III) shall be submitted regarding the natural person having the largest single financial or beneficial interest.
      4. The length of time and the locations where the applicant has been engaged in the business of real estate sales or development;
      5. Any felony of which the applicant has been convicted within the preceding ten years. In determining whether a certificate of registration shall be issued to an applicant who has been convicted of a felony within such period of time, the commission shall be governed by the provisions of section 24-5-101.
      6. The states in which the applicant has had a license or registration similar to the developer’s registration in this state granted, refused, suspended, or revoked or is currently the subject of an investigation or charges that could result in refusal, suspension, or revocation;
      7. Whether the developer or any other person financially interested in the business of the developer as principal, partner, officer, director, or stockholder has engaged in any activity that would constitute a violation of this part 5.
    2. If the applicant is a corporate developer, a copy of the certificate of authority to do business in this state or a certificate of incorporation issued by the secretary of state shall accompany the application.
  2. Registration information concerning the subdivision shall include:
    1. The location of each subdivision from which sales are intended to be made;
    2. The name of each subdivision and the trade, corporate, or partnership name used by the developer;
    3. Evidence or certification that each subdivision offered for sale or lease is registered or will be registered in accordance with state or local requirements of the state in which each subdivision is located;
    4. Copies of documents evidencing the title or other interest in the subdivision;
    5. If there is a blanket encumbrance upon the title of the subdivision or any other ownership, leasehold, or contractual interest that could defeat all possessory or ownership rights of a purchaser, a copy of the instruments creating the liens, encumbrances, or interests, with dates as to the recording, along with documentary evidence that any beneficiary, mortgagee, or trustee of a deed of trust or any other holder of the ownership, leasehold, or contractual interest will release any lot or time share from the blanket encumbrance or has subordinated its interest in the subdivision to the interest of any purchaser or has established any other arrangement acceptable to the commission that protects the rights of the purchaser;
    6. A statement that standard commission-approved forms will be used for contracts of sale, notes, deeds, and other legal documents used to effectuate the sale or lease of the subdivision or any part thereof, unless the forms to be used were prepared by an attorney representing the developer;
    7. A true statement by the developer that, in any conveyance by means of an installment contract, the purchaser shall be advised to record the contract with the proper authorities in the jurisdiction in which the subdivision is located. In no event shall any developer specifically prohibit the recording of the installment contract.
    8. A true statement by the developer of the provisions for and availability of legal access, sewage disposal, and public utilities, including water, electricity, gas, and telephone facilities, in the subdivision offered for sale or lease, including whether such are to be a developer or purchaser expense;
    9. A true statement as to whether or not a survey of each lot, site, or tract offered for sale or lease from the subdivision has been made and whether survey monuments are in place;
    10. A true statement by the developer as to whether or not a common interest community is to be or has been created within the subdivision and whether or not the common interest community is or will be a small cooperative or small and limited expense planned community created pursuant to section 38-33.3-116;
    11. A true statement by the developer concerning the existence of any common interest community association, including whether the developer controls funds in the association.
  3. The commission may disapprove the form of the documents submitted pursuant to subsection (3)(f) of this section and may deny an application for registration until such time as the applicant submits the documents in a form that is satisfactory to the commission.
  4. Each registration shall be accompanied by fees established pursuant to section 12-10-215.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 657, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-403 as it existed prior to 2019.

12-10-504. Registration of developers.

  1. The commission shall register all applicants who meet the requirements of this part 5 and provide each applicant so registered with a certificate indicating that the developer named therein is registered in the state of Colorado as a subdivision developer. The developer that will sign as seller or lessor in any contract of sale, lease, or deed purporting to convey any site, tract, lot, or divided or undivided interest from a subdivision shall secure a certificate before offering, negotiating, or agreeing to sell, lease, or transfer before the sale, lease, or transfer is made. If such person or entity is acting only as a trustee, the beneficial owner of the subdivision shall secure a certificate. A certificate issued to a developer shall entitle all sales agents and employees of the developer to act in the capacity of a developer as agent for the developer. The developer shall be responsible for all actions of the sales agents and employees.
  2. All certificates issued under this section shall expire on December 31 following the date of issuance. In the absence of any reason or condition under this part 5 that might warrant the denial or revocation of a registration, a certificate shall be renewed by payment of a renewal fee established pursuant to section 12-10-215. A registration that has expired may be reinstated within two years after the expiration upon payment of the appropriate renewal fee if the applicant meets all other requirements of this part 5.
  3. All fees collected under this part 5 shall be deposited in accordance with section 12-10-214.
  4. With regard to any subdivision for which the information required by section 12-10-503 (3) has not been previously submitted to the commission, each registered developer shall register the subdivision by providing the commission with the information before sale, lease, or transfer, or negotiating or agreeing to sell, lease, or transfer, any such subdivision or any part thereof.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 659, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-404 as it existed prior to 2019.

12-10-505. Refusal, revocation, or suspension of registration - letter of admonition - probation.

  1. The commission may impose an administrative fine not to exceed two thousand five hundred dollars for each separate offense; may issue a letter of admonition; may place a registrant on probation under its close supervision on such terms and for such time as it deems appropriate; and may refuse, revoke, or suspend the registration of any developer or registrant if, after an investigation and after notice and a hearing pursuant to the provisions of section 24-4-104, the commission determines that the developer or any director, officer, or stockholder with controlling interest in the corporation:
    1. Has used false or misleading advertising or has made a false or misleading statement or a concealment in his or her application for registration;
    2. Has misrepresented or concealed any material fact from a purchaser of any interest in a subdivision;
    3. Has employed any device, scheme, or artifice with intent to defraud a purchaser of any interest in a subdivision;
    4. Has been convicted of or pled guilty or nolo contendere to a crime involving fraud, deception, false pretense, theft, misrepresentation, false advertising, or dishonest dealing in any court;
    5. Has disposed of, concealed, diverted, converted, or otherwise failed to account for any funds or assets of any purchaser of any interest in a subdivision or any homeowners’ association under the control of the developer or director, officer, or stockholder;
    6. Has failed to comply with any stipulation or agreement made with the commission;
    7. Has failed to comply with or has violated any provision of this article 10, including any failure to comply with the registration requirements of section 12-10-503, or any lawful rule promulgated by the commission under this article 10;
    8. Has refused to honor a buyer’s request to cancel a contract for the purchase of a time share or subdivision or part thereof if the request was made within five calendar days after execution of the contract and was made either by telegram, mail, or hand delivery. A request is considered made if by electronic mail when sent, if by mail when postmarked, or if by hand delivery when delivered to the seller’s place of business. No developer shall employ a contract that contains any provision waiving a buyer’s right to such a cancellation period.
    9. Has committed any act that constitutes a violation of the “Colorado Consumer Protection Act”, article 1 of title 6;
    10. Has employed any sales agent or employee who violates the provisions of this part 5;
    11. Has used documents for sales or lease transactions other than those described in section 12-10-503 (3)(f);
    12. Has failed to disclose encumbrances to prospective purchasers or has failed to transfer clear title at the time of sale, if the parties agreed that the transfer would be made at that time.
  2. A disciplinary action relating to the business of subdivision development taken by any other state or local jurisdiction or the federal government shall be deemed to be prima facie evidence of grounds for disciplinary action, including denial of registration, under this part 5. This subsection (2) shall apply only to such disciplinary actions as are substantially similar to those set out as grounds for disciplinary action or denial of registration under this part 5.
  3. Any hearing held under this section shall be in accordance with the procedures established in sections 24-4-105 and 24-4-106.
  4. When a complaint or investigation discloses an instance of misconduct that, in the opinion of the commission, does not initially warrant formal action by the commission but that should not be dismissed as being without merit, the commission may send a letter of admonition by certified mail, return receipt requested, to the registrant who is the subject of the complaint or investigation and a copy thereof to any person making the complaint. The letter shall advise the registrant that he or she has the right to request in writing, within twenty days after proven receipt, that formal disciplinary proceedings be initiated against him or her to adjudicate the propriety of the conduct upon which the letter of admonition is based. If the request is timely made, the letter of admonition shall be deemed vacated, and the matter shall be processed by means of formal disciplinary proceedings.
  5. All administrative fines collected pursuant to this section shall be transmitted to the state treasurer, who shall credit the same to the division of real estate cash fund.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 660, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-405 as it existed prior to 2019.

ANNOTATION

Law reviews. For comment, “State and Local Regulation of Timesharing in Colorado”, see 56 U. Colo. L. Rev. 289 (1985).

Annotator’s note. The following annotations include cases decided under a former provision similar to this section.

Serving the period of suspension of registration under this section does not render the appeal of a suspension decision moot due to the possible injury to good will and reputation the public nature of such a decision can cause. Coronado Dev. Corp. v. Real Estate Comm’n, 40 Colo. App. 328, 574 P.2d 514 (1978).

Penal standards need specificity in order to be imposed. While the state needs to define offensive conduct of subdividers in language broad enough to allow revocation of a license where the public is being harmed, penalties cannot be imposed for violations of a standard whose meaning is dependent upon surmise or conjecture or uncontrolled application by the board imposing the penalty, and where ambiguous criteria such as “reputation” and “unethical practices” are sought to be the basis of a license revocation, they must be struck down as unconstitutionally void. LDS, Inc. v. Healy, 197 Colo. 19, 589 P.2d 490 (1979).

12-10-506. Powers of commission - injunction - rules.

  1. The commission may apply to a court of competent jurisdiction for an order enjoining any act or practice that constitutes a violation of this part 5, and, upon a showing that a person is engaging or intends to engage in any such act or practice, an injunction, restraining order, or other appropriate order shall be granted by the court, regardless of the existence of another remedy therefor. Any notice, hearing, or duration of any injunction or restraining order shall be made in accordance with the provisions of the Colorado rules of civil procedure.
  2. The commission may apply to a court of competent jurisdiction for the appointment of a receiver if it determines that the appointment is necessary to protect the property or interests of purchasers of a subdivision or part thereof.
  3. The commission shall issue or deny a certificate or additional registration within sixty days from the date of receipt of the application by the commission. The commission may make necessary investigations and inspections to determine whether any developer has violated this part 5 or any lawful rule promulgated by the commission. If, after an application by a developer has been submitted pursuant to section 12-10-503 or information has been submitted pursuant to section 12-10-504, the commission determines that an inspection of a subdivision is necessary, it shall complete the inspection within sixty days from the date of filing of the application or information, or the right of inspection is waived and the lack thereof shall not be grounds for denial of a registration.
  4. The commission, the director, or the administrative law judge appointed for a hearing may issue a subpoena compelling the attendance and testimony of witnesses and the production of books, papers, or records pursuant to an investigation or hearing of the commission. Any such subpoena shall be served in the same manner as for subpoenas issued by district courts.
  5. The commission has the power to make any rules necessary for the enforcement or administration of this part 5.
  6. The commission shall adopt, promulgate, amend, or repeal such rules as are necessary to:
    1. Require written disclosures to any purchasers as provided in subsection (7) of this section and to prescribe and require that standardized forms be used by subdivision developers in connection with the sale or lease of a subdivision or any part thereof, except as otherwise provided in section 12-10-503 (3)(f); and
    2. Require that developers maintain certain business records for a period of at least seven years.
  7. The commission may require any developer to make written disclosures to purchasers in their contracts of sale or by separate written documents if the commission finds that the disclosures are necessary for the protection of the purchasers.
  8. The commission or its designated representative may audit the accounts of any homeowners’ association, the funds of which are controlled by a developer.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 661, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-406 as it existed prior to 2019.

Cross references:

For the Colorado rules of civil procedure concerning subpoenas and injunctions, see C.R.C.P. 45 and 65.

ANNOTATION

Law reviews. For comment, “State and Local Regulation of Timesharing in Colorado”, see 56 U. Colo. L. Rev. 289 (1985).

12-10-507. Violation - penalty.

Any person who fails to register as a developer in violation of this part 5 commits a class 6 felony and shall be punished as provided in section 18-1.3-401. Any agreement or contract for the sale or lease of a subdivision or part thereof shall be voidable by the purchaser and unenforceable by the developer unless the developer was duly registered under the provisions of this part 5 when the agreement or contract was made.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 663, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-407 as it existed prior to 2019.

12-10-508. Repeal of part - subject to review.

This part 5 is repealed, effective September 1, 2026. Before the repeal, this part 5 is scheduled for review in accordance with section 24-34-104.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 663, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-408 as it existed prior to 2019.

Part 6. Real Estate Appraisers

Law reviews:

For article, “Professional Standards for the Appraiser”, see 22 C olo. Law. 1263 (1993).

12-10-601. Legislative declaration.

The general assembly finds, determines, and declares that sections 12-10-602 to 12-10-623 are enacted pursuant to the requirements of the “Real Estate Appraisal Reform Amendments”, Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, 12 U.S.C. secs. 3331 to 3351. The general assembly further finds, determines, and declares that sections 12-10-602 to 12-10-623 are intended to implement the requirements of federal law in the least burdensome manner to real estate appraisers and appraisal management companies. Licensed ad valorem appraisers licensed under this article 10 are not regulated by the federal “Real Estate Appraisal Reform Amendments”, Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, 12 U.S.C. secs. 3331 to 3351.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 663, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-701 as it existed prior to 2019.

12-10-602. Definitions.

As used in this part 6, unless the context otherwise requires:

    1. “Appraisal”, “appraisal report”, or “real estate appraisal” means a written or oral analysis, opinion, or conclusion relating to the nature, quality, value, or utility of specified interests in, or aspects of, identified real estate that is transmitted to the client upon the completion of an assignment. These terms include a valuation, which is an opinion of the value of real estate, and an analysis, which is a general study of real estate not specifically performed only to determine value; except that the terms include a valuation completed by an appraiser employee of a county assessor as defined in section 39-1-102 (2).
    2. The terms do not include an analysis, valuation, opinion, conclusion, notation, or compilation of data by an officer, director, regularly salaried employee, or agent of a financial institution or its affiliate, made for internal use only by the financial institution or affiliate, concerning an interest in real estate that is owned or held as collateral by the financial institution or affiliate and that is not represented or deemed to be an appraisal except to the financial institution, the agencies regulating the financial institution, and any secondary markets that purchase real estate secured loans. An appraisal prepared by an officer, director, regularly salaried employee, or agent of a financial institution who is not licensed or certified under this part 6 must contain a written notice that the preparer is not licensed or certified as an appraiser under this part 6.
    3. “Appraisal”, “appraisal report”, or “real estate appraisal” does not include a federally authorized “waiver valuation”, as defined in 49 CFR 24.2 (a)(33), as amended.
    1. “Appraisal management company” or “AMC” means, in connection with valuing properties collateralizing mortgage loans or mortgages incorporated into a securitization, any external third party authorized either by a creditor in a consumer credit transaction secured by a consumer’s principal dwelling that oversees an appraiser panel or by an underwriter of, or other principal in, the secondary mortgage markets that oversees an appraiser panel to:
      1. Recruit, select, and retain appraisers;
      2. Contract with licensed and certified appraisers to perform appraisal assignments;
      3. Manage the process of having an appraisal performed, including providing administrative duties such as receiving appraisal orders and appraisal reports, submitting completed appraisal reports to creditors and underwriters, collecting fees from creditors and underwriters for services provided, and reimbursing appraisers for services performed; or
      4. Review and verify the work of appraisers.
    2. “Appraisal management company” or “AMC” does not include:
      1. A corporation, limited liability company, sole proprietorship, or other entity that directly performs appraisal services;
      2. A corporation, limited liability company, sole proprietorship, or other entity that does not contract with appraisers for appraisal services, but that solely distributes orders to a client-selected panel of appraisers; and
      3. A mortgage company, or its subsidiary, that manages a panel of appraisers who are engaged to provide appraisal services on mortgage loans either originated by the mortgage company or funded by the mortgage company with its own funds.
  1. “Board” means the board of real estate appraisers created in section 12-10-603.
  2. “Client” means the party or parties who engage an appraiser or an appraisal management company for a specific assignment.
  3. “Consulting services” means services performed by an appraiser that do not fall within the definition of an “independent appraisal” in subsection (7) of this section. “Consulting services” includes marketing, financing and feasibility studies, valuations, analyses, and opinions and conclusions given in connection with real estate brokerage, mortgage banking, and counseling and advocacy in regard to property tax assessments and appeals thereof; except that, if in rendering the services the appraiser acts as a disinterested third party, the work is deemed an independent appraisal and not a consulting service. Nothing in this subsection (5) precludes a person from acting as an expert witness in valuation appeals.
  4. “Financial institution” means any “bank” or “savings association”, as those terms are defined in 12 U.S.C. sec. 1813, any state bank incorporated under title 11, any state or federally chartered credit union, or any company that has direct or indirect control over any of those entities.
  5. “Independent appraisal” means an engagement for which an appraiser is employed or retained to act as a disinterested third party in rendering an unbiased analysis, opinion, or conclusion relating to the nature, quality, value, or utility of specified interests in or aspects of identified real estate.
    1. “Panel” or “appraiser panel” means a network, list, or roster of licensed or certified appraisers approved by an AMC to perform appraisals as independent contractors for the AMC.
    2. Appraisers on an AMC’s appraiser panel include both:
      1. Appraisers accepted by the AMC for consideration for future appraisal assignments in covered transactions or for secondary mortgage market participants in connection with covered transactions; and
      2. Appraisers engaged by the AMC to perform one or more appraisals in covered transactions or for secondary mortgage market participants in connection with covered transactions.
    3. An appraiser is an independent contractor for purposes of this subsection (8) if the appraiser is treated as an independent contractor by the AMC for purposes of federal income taxation.
    1. “Real estate appraiser” or “appraiser” means a person who provides an estimate of the nature, quality, value, or utility of an interest in, or aspect of, identified real estate and includes one who estimates value and who possesses the necessary qualifications, ability, and experience to execute or direct the appraisal of real property.
    2. “Real estate appraiser” or “appraiser” does not include:
      1. A person who conducts appraisals strictly of personal property;
      2. A person licensed as a broker pursuant to part 2 of this article 10 who provides an opinion of value that is not represented as an appraisal and is not used for purposes of obtaining financing;
      3. A person licensed as a certified public accountant pursuant to article 100 of this title 12, and otherwise regulated, as long as the person does not represent his or her opinions of value for real estate as an appraisal;
      4. A corporation, acting through its officers or regularly salaried employees, when conducting a valuation of real estate property rights owned, to be purchased, or sold by the corporation;
      5. A person who conducts appraisals strictly of water rights or of mineral rights;
      6. A right-of-way acquisition agent, an appraiser who is licensed and certified pursuant to this part 6, or any other individual who has sufficient understanding of the local real estate market to be qualified to make a waiver valuation when the agent, appraiser, or other qualified individual is employed by or contracts with a public entity and provides an opinion of value that is not represented as an appraisal and when, for any purpose, the property or portion of property being valued is valued at twenty-five thousand dollars or less, as permitted by federal law and 49 CFR 24.102 (c)(2), as amended;
      7. An officer, director, regularly salaried employee, or agent of a financial institution or its affiliate who makes, for internal use only by the financial institution or affiliate, an analysis, evaluation, opinion, conclusion, notation, or compilation of data with respect to an appraisal so long as the person does not make a written adjustment of the appraisal’s conclusion as to the value of the subject real property;
      8. An officer, director, regularly salaried employee, or agent of a financial institution or its affiliate who makes an internal analysis, valuation, opinion, conclusion, notation, or compilation of data concerning an interest in real estate that is owned or held as collateral by the financial institution or its affiliate; or
      9. A person who represents property owners as an advocate in tax or valuation protests and appeals pursuant to title 39.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 663, § 1, effective October 1; (2)(a)(I) amended,(SB 19-046), ch. 50, p. 164, § 3, effective October 1. L. 2020: (1)(b), (9)(b)(VII), and (9)(b)(VIII) amended,(SB 20-047), ch. 17, p. 71, § 1, effective September 14.

Editor’s note: (1) This section is similar to former § 12-61-702 as it existed prior to 2019; except that § 12-61-702 (7) and (8) were relocated to § 12-10-101 (1) and (2), respectively.

(2) Before its relocation in 2019, this section was amended in SB 19-046. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from March 25, 2019, to October 1, 2019, see SB 19-046, chapter 50, Session Laws of Colorado 2019.

Cross references:

For the legislative declaration in SB 19-046, see section 1 of chapter 50, Session Laws of Colorado 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

This section does not prohibit a person licensed as a real estate broker from testifying as to an opinion of value before the Colorado state board of assessment appeals so long as such opinion is not represented as an appraisal. Miller v. Boulder County Bd. of Equaliz., 990 P.2d 1114 (Colo. App. 1998).

A real estate broker may be qualified as an expert witness before the Colorado state board of assessment appeals as to value of a car dealership so long as such broker’s opinion is not represented as an appraisal. Miller v. Boulder County Bd. of Equaliz., 990 P.2d 1114 (Colo. App. 1998).

Based on the comprehensive legislative structure regulating them, real estate appraisers practice a profession involving knowledge or skill, and their conduct should be judged according to the tenets of their field. Therefore, a buyer’s negligence claim against real estate appraisers for inaccurate appraisals involved professional negligence. Hice v. Lott, 223 P.3d 139 (Colo. App. 2009).

Establishing a standard of care in a professional negligence case normally requires an expert to explain it because ordinary persons are not conversant with it. The issue of whether a dwelling was a “mobile home” or a “modular home”, and the effect of that determination on the dwelling’s appraised value, were beyond the experience of ordinary jurors, even when assisted by generally accepted standards of professional appraisal practice. Thus, expert testimony was necessary to establish the standard of care an appraiser must employ when appraising a structure that may be a “mobile home”. Hice v. Lott, 223 P.3d 139 (Colo. App. 2009).

12-10-603. Board of real estate appraisers - creation - compensation - immunity - legislative declaration - subject to review - repeal of part.

    1. There is hereby created in the division of real estate a board of real estate appraisers consisting of seven members appointed by the governor with the consent of the senate. Of the members, three shall be licensed or certified appraisers, one of whom shall have expertise in eminent domain matters; one shall be a county assessor in office; one shall be an officer or employee of a commercial bank experienced in real estate lending; one shall be an officer or employee of an appraisal management company; and one shall be a member of the public at large not engaged in any of the businesses represented by the other members of the board.
    2. Members of the board shall hold office for terms of three years. In the event of a vacancy by death, resignation, removal, or otherwise, the governor shall appoint a member to fill the unexpired term. The governor has the authority to remove any member for misconduct, neglect of duty, or incompetence.
    1. The board shall exercise its powers and perform its duties and functions under the division of real estate as if transferred to the division by a type 1 transfer, as defined in the “Administrative Organization Act of 1968”, article 1 of title 24.
    2. The general assembly finds, determines, and declares that the organization of the board under the division as a type 1 agency will provide the autonomy necessary to avoid potential conflicts of interest between the responsibility of the board in the regulation of real estate appraisers and the responsibility of the division in the regulation of real estate brokers and salespersons. The general assembly further finds, determines, and declares that the placement of the board as atype 1 agency under the division is consistent with the organizational structure of state government.
  1. Each member of the board shall receive the same compensation and reimbursement of expenses as is provided for members of boards and commissions in the division of professions and occupations pursuant to section 12-20-103 (6). Payment for all per diem compensation and expenses shall be made out of annual appropriations from the division of real estate cash fund provided for in section 12-10-605.
  2. Members of the board, consultants, and expert witnesses are immune from liability in any civil action based upon any disciplinary proceedings or other official acts they performed in good faith pursuant to this part 6.
  3. A majority of the board constitutes a quorum for the transaction of all business, and actions of the board require a vote of a majority of the members present in favor of the action taken.
  4. This part 6 is repealed, effective September 1, 2022. Before the repeal, this part 6 is scheduled for review in accordance with section 24-34-104.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 666, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-703 as it existed prior to 2019.

12-10-604. Powers and duties of the board - rules.

  1. In addition to all other powers and duties imposed upon it by law, the board has the following powers and duties:
      1. To promulgate and amend, as necessary, rules pursuant to article 4 of title 24 for the implementation and administration of this part 6 and as required to comply with the federal “Real Estate Appraisal Reform Amendments”, Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, 12 U.S.C. secs. 3331 to 3351, and with any requirements imposed by amendments to that federal law.
      2. The board shall not establish any requirements that are more stringent than the requirements of any applicable federal law.
      3. Licensed ad valorem appraisers are not regulated by the federal “Real Estate Appraisal Reform Amendments”, Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, 12 U.S.C. secs. 3331 to 3351, but the board shall adopt rules regarding minimum qualifications and standards of practice for licensed ad valorem appraisers.
      4. In any list or registry it maintains, the board shall identify or separately account for any appraisal management company that oversees a panel of more than fifteen certified or licensed appraisers in Colorado, or more than twenty-five in all states in which it does business, within a given year.
    1. To charge application, examination, and license and certificate renewal fees established pursuant to section 12-10-215 from all applicants for licensure, certification, examination, and renewal under this part 6. The board shall not refund any fees received from applicants seeking licensure, certification, examination, or renewal.
    2. Through the department and subject to appropriations made to the department, to employ administrative law judges, appointed pursuant to part 10 of article 30 of title 24, on a full-time or part-time basis to conduct any hearings required by this part 6;
    3. To issue, deny, or refuse to renew a license or certificate pursuant to this part 6;
    4. To take disciplinary actions in conformity with this part 6;
    5. To delegate to the director the administration and enforcement of this part 6 and the authority to act on behalf of the board on occasions and in circumstances that the board directs;
      1. To develop, purchase, or contract for any examination required for the administration of this part 6, to offer each examination at least twice a year or, if demand warrants, at more frequent intervals, and to establish a passing score for each examination that reflects a minimum level of competency.
      2. If study materials are developed by a testing company or other entity, the board shall make the materials available to persons desiring to take examinations pursuant to this part 6. The board may charge fees for the materials to defray any costs associated with making the materials available.
    6. In compliance with article 4 of title 24, to make investigations; subpoena persons and documents, which subpoenas may be enforced by a court of competent jurisdiction if not obeyed; hold hearings; and take evidence in all matters relating to the exercise of the board’s power under this part 6;
    7. Pursuant to section 1119 (b) of Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, Pub.L. 101-73, as amended, to apply, if necessary, for a federal waiver of the requirement relating to certification or licensing of a person to perform appraisals and to make the necessary written determinations specified in that section for purposes of making the application; and
    8. If the board has reasonable cause to believe that a person, partnership, limited liability company, or corporation is violating this part 6, to enter an order requiring the individual or appraisal management company to cease and desist the violation.
    9. Repealed.
  2. The board shall maintain or preserve, for seven years, licensing history records of a person licensed or certified under this part 6. Complaints of record in the office of the board and board investigations, including board investigative files, are closed to public inspection. Stipulations and final agency orders are public record and are subject to sections 24-72-203 and 24-72-204.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 667, § 1, effective October 1; (1)(k) repealed,(HB 19-1264), ch. 420, p. 3681, § 11, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-704 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1264. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from June 30, 2019, to October 1, 2019, see HB 19-1264, chapter 420, Session Laws of Colorado 2019.

12-10-605. Fees, penalties, and fines collected under part 6.

All fees, penalties, and fines collected pursuant to this part 6, not including fees retained by contractors pursuant to contracts entered into in accordance with section 12-10-203, 12-10-606, or 24-34-101, shall be transmitted to the state treasurer, who shall credit the same to the division of real estate cash fund, created in section 12-10-215.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 669, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-705 as it existed prior to 2019.

12-10-606. Qualifications for licensing and certification of appraisers - continuing education - definitions - rules.

    1. The board shall, by rule, prescribe requirements for the initial licensing or certification of persons under this part 6 to meet the requirements of the “Real Estate Appraisal Reform Amendments”, Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, 12 U.S.C. secs. 3331 to 3351, and shall develop, purchase, or contract for examinations to be passed by applicants. The board shall not establish any requirements for initial licensing or certification that are more stringent than the requirements of any applicable federal law; except that all applicants shall pass an examination offered by the board. If there is no applicable federal law, the board shall consider and may use as guidelines the most recent available criteria published by the Appraiser Qualifications Board of the Appraisal Foundation or its successor organization.
    2. The four levels of appraiser licensure and certification, pursuant to subsection (1)(a) of this section, are defined as follows:
      1. “Certified general appraiser” means an appraiser meeting the requirements set by the board for general certification.
      2. “Certified residential appraiser” means an appraiser meeting the requirements set by the board for residential certification.
      3. “Licensed ad valorem appraiser” means an appraiser meeting the requirements set by the board for ad valorem appraiser certification. Only a county assessor, employee of a county assessor’s office, or employee of the division of property taxation in the department of local affairs may obtain or possess an ad valorem appraiser certification.
      4. “Licensed appraiser” means an appraiser meeting the requirements set by the board for a license.
    3. A county assessor or employee of a county assessor’s office who is a licensed ad valorem appraiser may not perform real estate appraisals outside of his or her official duties.
    4. The board shall transfer persons employed in a county assessor’s office or in the division of property taxation in the department of local affairs who are registered appraisers as of July 1, 2013, to the category of licensed ad valorem appraiser. The board shall allow these persons, until December 31, 2015, to meet any additional requirements imposed by the board pursuant to section 12-10-604 (1)(a).
    1. The board shall, by rule, prescribe continuing education requirements for persons licensed or certified as certified general appraisers, certified residential appraisers, or licensed appraisers as needed to meet the requirements of the “Real Estate Appraisal Reform Amendments”, Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, 12 U.S.C. secs. 3331 to 3351. The board shall not establish any continuing education requirements that are more stringent than the requirements of any applicable federal law; except that all persons licensed or certified under this part 6 are subject to continuing education requirements. If there is no applicable federal law, the board shall consider and may use as guidelines the most recent available criteria published by the Appraiser Qualifications Board of the Appraisal Foundation or its successor organization.
    2. The board shall, by rule, prescribe continuing education requirements for licensed ad valorem appraisers.
  1. Notwithstanding any provision of this section to the contrary, the criteria established by the board for the licensing or certification of appraisers pursuant to this part 6 shall not include membership or lack of membership in any appraisal organization.
    1. Subject to section 12-10-619 (2), all appraiser employees of county assessors shall be licensed or certified as provided in subsections (1) and (2) of this section. Obtaining and maintaining a license or certificate under either subsection (1) or (2) of this section entitles an appraiser employee of a county assessor to perform all real estate appraisals required to fulfill the person’s official duties.
    2. Appraiser employees of county assessors who are employed to appraise real property are subject to this part 6; except that appraiser employees of county assessors who are employed to appraise real property are not subject to disciplinary actions by the board on the ground that they have performed appraisals beyond their level of competency when appraising real estate in fulfillment of their official duties. County assessors, if licensed or certified as provided in subsections (1) and (2) of this section, are not subject to disciplinary actions by the board on the ground that they have performed appraisals beyond their level of competency when appraising real estate in fulfillment of their official duties.
    3. The county in which an appraiser employee of a county assessor is employed shall pay all reasonable costs incurred by the appraiser employee of the county assessor to obtain and maintain a license or certificate pursuant to this section.
  2. The board shall not issue an appraiser’s license as referenced in subsection (1)(b)(IV) of this section unless the applicant has at least twelve months’ appraisal experience.
    1. The board shall not issue a license or certification until the applicant demonstrates that he or she meets the fitness standards established by board rule and submits a set of fingerprints to the Colorado bureau of investigation for the purpose of conducting a state and national fingerprint-based criminal history record check utilizing records of the Colorado bureau of investigation and the federal bureau of investigation. Each person submitting a set of fingerprints shall pay the fee established by the Colorado bureau of investigation for conducting the fingerprint-based criminal history record check to the bureau. Upon completion of the criminal history record check, the bureau shall forward the results to the board. The board shall require a name-based criminal history record check, as defined in section 22-2-119.3 (6)(d), for an applicant who has twice submitted to a fingerprint-based criminal history record check and whose fingerprints are unclassifiable or when the results of a fingerprint-based criminal history record check of an applicant performed pursuant to this subsection (6) reveal a record of arrest without a disposition. The applicant shall pay the costs associated with a name-based criminal history record check. The board may deny an application for licensure or certification based on the outcome of the criminal history record check and may establish criminal history requirements more stringent than those established by any applicable federal law. At a minimum, the board shall adopt the criminal history requirements established by any applicable federal law.
    2. An applicant for certification as a licensed ad valorem appraiser is not subject to the fingerprinting and criminal background check requirements of subsection (6)(a) of this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 669, § 1, effective October 1; (6)(a) amended,(HB 19-1166), ch. 125, p. 565, § 69, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-706 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1166. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from April 18, 2019, to October 1, 2019, see HB 19-1166, chapter 125, Session Laws of Colorado 2019.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

This section is unconstitutional as applied to county assessors. The qualifications for county officers that are specified in article XIV, § 10 of the Colorado Constitution are exclusive. Thus, the general assembly does not have authority to require additional qualifications, including licensure. Reale v. Bd. of Real Estate Appraisers, 880 P.2d 1205 (Colo. 1994).

Based on the comprehensive legislative structure regulating them, real estate appraisers practice a profession involving knowledge or skill, and their conduct should be judged according to the tenets of their field. Therefore, a buyer’s negligence claim against real estate appraisers for inaccurate appraisals involved professional negligence. Hice v. Lott, 223 P.3d 139 (Colo. App. 2009).

Establishing a standard of care in a professional negligence case normally requires an expert to explain it because ordinary persons are not conversant with it. The issue of whether a dwelling was a “mobile home” or a “modular home”, and the effect of that determination on the dwelling’s appraised value, were beyond the experience of ordinary jurors, even when assisted by generally accepted standards of professional appraisal practice. Thus, expert testimony was necessary to establish the standard of care an appraiser must employ when appraising a structure that may be a “mobile home”. Hice v. Lott, 223 P.3d 139 (Colo. App. 2009).

Common insurance policy appraisal provision instructing parties to select an impartial appraiser requires appraisers to be unbiased, disinterested, and unswayed by personal interest based on the plain meaning of the word “impartial.” Impartial appraisers must not favor one side more than another, so they may not advocate for either party. Owners Ins. Co. v. Dakota Station II Condo. Ass’n, 2019 CO 65, 443 P.3d 47.

Contingent-cap fee agreements that tie appraisers’ compensation to the ultimate appraisal award do not necessarily render appraisers partial as a matter of law. Appraiser was found to be impartial in situation where the appraiser did not believe the cap was in effect, the award did not reach the stated cap, and there was seemingly no relationship between the fees billed by the appraiser and the estimates the appraiser put forth. Owners Ins. Co. v. Dakota Station II Condo. Ass’n, 2019 CO 65, 443 P.3d 47.

12-10-607. Appraisal management companies - application for license - exemptions.

  1. An applicant shall apply for a license as an appraisal management company, or as a controlling appraiser, to the board in a manner prescribed by the board.
  2. The board may grant appraisal management company licenses to individuals, partnerships, limited liability companies, or corporations. A partnership, limited liability company, or corporation, in its application for a license, shall designate a controlling appraiser who is actively certified in a state recognized by the appraisal subcommittee of the federal financial institutions examination council or its successor entity. The controlling appraiser is responsible for the licensed practices of the partnership, limited liability company, or corporation and all persons employed by the entity. The application of the partnership, limited liability company, or corporation and the application of the appraiser designated by it as the controlling appraiser shall be filed with the board. The board has jurisdiction over the appraiser so designated and over the partnership, limited liability company, or corporation.
  3. The board shall not issue a license to any partnership, limited liability company, or corporation unless and until the appraiser designated by the partnership, limited liability company, or corporation as controlling appraiser and each individual who owns more than ten percent of the entity demonstrates that he or she meets the fitness standards established by board rule and submits a set of fingerprints to the Colorado bureau of investigation for the purpose of conducting a state and national fingerprint-based criminal history record check utilizing records of the Colorado bureau of investigation and the federal bureau of investigation. Each person submitting a set of fingerprints shall pay the fee established by the Colorado bureau of investigation for conducting the fingerprint-based criminal history record check to the bureau. Upon completion of the criminal history record check, the bureau shall forward the results to the board. The board shall require a name-based criminal history record check, as defined in section 22-2-119.3 (6)(d), for an applicant who has twice submitted to a fingerprint-based criminal history record check and whose fingerprints are unclassifiable or when the results of a fingerprint-based criminal history record check of an applicant performed pursuant to this subsection (3) reveal a record of arrest without a disposition. The applicant shall pay the costs associated with a name-based criminal history record check. The board may deny an application for licensure or refuse to renew a license based on the outcome of the criminal history record check. The board may require criminal history requirements more stringent than those established by any applicable federal law. At a minimum, the board shall adopt the criminal history requirements established by any applicable federal law.
  4. The board shall not issue a license to any partnership, limited liability company, or corporation if the appraiser designated by the entity as controlling appraiser has previously had, in any state, an appraiser registration, license, or certificate refused, denied, canceled, surrendered in lieu of revocation, or revoked. A disciplinary action resulting in refusal, denial, cancellation, surrender in lieu of revocation, or revocation relating to a registration, license, or certification as an appraiser registered, licensed, or certified under this part 6 or any related occupation in any other state, territory, or country for disciplinary reasons is prima facie evidence of grounds for denial of a license by the board.
  5. The board shall not issue a license to any partnership, limited liability company, or corporation if it is owned, in whole or in part, directly or indirectly, by any person who has had, in any state, an appraiser license, registration, or certificate refused, denied, canceled, surrendered in lieu of revocation, or revoked. A disciplinary action resulting in refusal, denial, cancellation, surrender in lieu of revocation, or revocation relating to a license, registration, or certification as an appraiser licensed, registered, or certified under this part 6 or any related occupation in any other state, territory, or country for disciplinary reasons is prima facie evidence of grounds for denial of a license by the board.
  6. The board may deny an application for a license for any partnership, limited liability company, or corporation if the partnership, limited liability company, or corporation has previously had a license revoked or surrendered a license in lieu of revocation. A disciplinary action resulting in the surrender in lieu of revocation or the revocation of a license as an appraisal management company under this part 6 or any related occupation in any other state, territory, or country for disciplinary reasons may be deemed to be prima facie evidence of grounds for denial of a license by the board.
  7. Each appraisal management company must maintain a definite place of business. If the appraisal management company is domiciled in another state, the appraiser designated by the appraisal management company as controlling appraiser is responsible for supervising all licensed activities that occur in Colorado. All licensed actions occurring within the state of Colorado must occur under the name under which the appraisal management company is licensed or its trade name adopted in accordance with Colorado law.
  8. An application that is submitted by an appraisal management company that is:
    1. A partnership must be properly registered with the Colorado department of revenue or properly filed with the Colorado secretary of state and in good standing, proof of which must be included in the application. If an assumed or trade name is to be used, it must be properly filed with the Colorado department of revenue or filed and accepted by the Colorado secretary of state, proof of which must be included with the application.
    2. A limited liability company must be properly registered with the Colorado secretary of state and in good standing, proof of which must be included with the application. If an assumed or trade name is to be used, it must be properly filed with the Colorado secretary of state, proof of which must be included with the application.
    3. A corporation must be registered as a foreign corporation or properly incorporated with the Colorado secretary of state and in good standing, proof of which must be included with the application. If an assumed or trade name is to be used, it must be properly filed with the Colorado secretary of state, proof of which must be included with the application.
  9. Financial institutions and appraisal management company subsidiaries that are owned and controlled by the financial institution and regulated by a federal financial institution regulatory agency are not required to register with or be licensed by the board. This exemption includes a panel of appraisers who are engaged to provide appraisal services and are administered by a financial institution regulated by a federal financial regulatory agency.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 671, § 1, effective October 1; (3) amended,(HB 19-1166), ch. 125, p. 565, § 70, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-707 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1166. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from April 18, 2019, to October 1, 2019, see HB 19-1166, chapter 125, Session Laws of Colorado 2019.

12-10-608. Errors and omissions insurance - duties of the division - certificate of coverage - group plan made available - rules.

  1. Every licensee under this part 6, except an appraiser who is employed by a state or local governmental entity or an inactive appraiser or appraisal management company, shall maintain errors and omissions insurance to cover all activities contemplated under this part 6. The division shall make the errors and omissions insurance available to all licensees by contracting with an insurer for a group policy after a competitive bid process in accordance with article 103 of title 24. A group policy obtained by the division must be available to all licensees with no right on the part of the insurer to cancel any licensee. A licensee may obtain errors and omissions insurance independently if the coverage complies with the minimum requirements established by the division.
    1. If the division is unable to obtain errors and omissions insurance coverage to insure all licensees who choose to participate in the group program at a reasonable annual premium, as determined by the division, a licensee shall independently obtain the errors and omissions insurance required by this section.
    2. The division shall solicit and consider information and comments from interested persons when determining the reasonableness of annual premiums.
  2. The division shall determine the terms and conditions of coverage required under this section based on rules promulgated by the board. Each licensee shall be notified of the required terms and conditions at least thirty days before the annual premium renewal date as determined by the division. Each licensee shall file a certificate of coverage showing compliance with the required terms and conditions with the division by the annual premium renewal date, as determined by the division.
  3. In addition to all other powers and duties conferred upon the board by this part 6, the board is authorized and directed to adopt rules it deems necessary or proper to carry out the requirements of this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 673, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-708 as it existed prior to 2019.

12-10-609. Bond required.

  1. Before the board issues a license to an applicant for an appraisal management company license, the applicant shall post with the board a surety bond in the amount of twenty-five thousand dollars. A licensed appraisal management company shall maintain the required bond at all times.
  2. The surety bond shall require the surety to provide notice to the board within thirty days if payment is made from the surety bond or if the bond is canceled.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 674, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-709 as it existed prior to 2019.

12-10-610. Expiration of licenses - renewal - penalties - fees - rules.

    1. All licenses or certificates expire pursuant to a schedule established by the director and may be renewed or reinstated pursuant to this section. Upon compliance with this section and any applicable rules of the board regarding renewal, including the payment of a renewal fee plus a reinstatement fee established pursuant to subsection (1)(b) of this section, the expired license or certificate shall be reinstated. A real estate appraiser’s license or certificate that has not been renewed for a period greater than two years shall not be reinstated, and the person must submit a new application for licensure or certification.
    2. A person who fails to renew his or her license or certificate before the applicable renewal date may have it reinstated if the person submits an application as prescribed by the board:
      1. Within thirty-one days after the date of expiration, by payment of the regular renewal fee;
      2. More than thirty-one days, but within one year, after the date of expiration, by payment of the regular renewal fee and payment of a reinstatement fee equal to one-third of the regular renewal fee; or
      3. More than one year, but within two years, after the date of expiration, by payment of the regular renewal fee and payment of a reinstatement fee equal to two-thirds of the regular renewal fee.
  1. If the federal registry fee collected by the board and transmitted to the federal financial institutions examination council is increased prior to expiration of a license or certificate, the board shall collect the amount of the increase in the fee from the holder of the license or certificate and forward the amount to the council annually. The federal registry fee does not apply to licensed ad valorem appraisers licensed under this article 10.
    1. If the applicant has complied with this section and any applicable rules of the board regarding renewal, except for the continuing education requirements pursuant to section 12-10-606, the licensee may renew the license on inactive status. An inactive license may be activated if the licensee submits written certification of compliance with section 12-10-606 for the previous licensing period. The board may adopt rules establishing procedures to facilitate reactivation of licenses.
    2. The holder of an inactive license shall not perform a real estate appraisal or appraisal management duties.
    3. The holder of an inactive license shall not hold himself or herself out as having an active license pursuant to this part 6.
  2. At the time of renewal or reinstatement, every licensee, certificate holder, and person or individual who owns more than ten percent of an appraisal management company shall submit a set of fingerprints to the Colorado bureau of investigation for the purpose of conducting a state and national fingerprint-based criminal history record check utilizing records of the Colorado bureau of investigation and the federal bureau of investigation, if the person has not previously done so for issuance of a license or certification by the board. Each person submitting a set of fingerprints shall pay the fee established by the Colorado bureau of investigation for conducting the fingerprint-based criminal history record check to the bureau. The bureau shall forward the results to the board. The board shall require a name-based criminal history record check, as defined in section 22-2-119.3 (6)(d), for an applicant who has twice submitted to a fingerprint-based criminal history record check and whose fingerprints are unclassifiable or when the results of a fingerprint-based criminal history record check of an applicant performed pursuant to this section reveal a record of arrest without a disposition. The applicant shall pay the costs associated with a name-based criminal history record check. The board may refuse to renew or reinstate a license or certification based on the outcome of the criminal history record check.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 674, § 1, effective October 1; (4) amended,(HB 19-1166), ch. 125, p. 566, § 71, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-710 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1166. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from April 18, 2019, to October 1, 2019, see HB 19-1166, chapter 125, Session Laws of Colorado 2019.

12-10-611. Licensure or certification by endorsement - temporary practice.

  1. The board may issue a license or certification to an appraiser by endorsement to engage in the occupation of real estate appraisal to any applicant who has a license or certification in good standing as a real estate appraiser under the laws of another jurisdiction if:
    1. The applicant presents proof satisfactory to the board that, at the time of application for a Colorado license or certificate by endorsement, the applicant possesses credentials and qualifications that are substantially equivalent to the requirements of this part 6; or
    2. The jurisdiction that issued the applicant a license or certificate to engage in the occupation of real estate appraisal has a law similar to this subsection (1) pursuant to which it licenses or certifies persons who are licensed real estate appraisers in this state.
  2. The board may specify, by rule, what constitutes substantially equivalent credentials and qualifications and the manner in which the board will review credentials and qualifications of an applicant.
  3. Pursuant to section 1122
    1. of Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, Pub.L. 101-73, as amended, the board shall recognize, on a temporary basis, the license or certification of an appraiser issued by another state if:

      (a) The appraiser’s business is of a temporary nature; and

    2. The appraiser applies for and is granted a temporary practice permit by the board.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 675, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-711 as it existed prior to 2019.

12-10-612. Denial of license or certificate - renewal - definition.

  1. The board may determine whether an applicant for licensure or certification possesses the necessary qualifications for licensure or certification required by this part 6. The board may consider such qualities as the applicant’s fitness and prior professional licensure and whether the applicant has been convicted of a crime. As used in this subsection (1), “applicant” includes any individual who owns, in whole or in part, directly or indirectly, an appraisal management company and any appraiser designated as a controlling appraiser by a partnership, limited liability company, or corporation acting as an appraisal management company.
  2. If the board determines that an applicant does not possess the applicable qualifications required by this part 6, or the applicant has violated this part 6, rules promulgated by the board, or any board order, the board may deny the applicant a license or certificate or deny the renewal or reinstatement of a license or certificate pursuant to section 12-10-610, and, in such instance, the board shall provide the applicant with a statement in writing setting forth the basis of the board’s determination that the applicant does not possess the qualifications or professional competence required by this part 6. The applicant may request a hearing on the determination as provided in section 24-4-104 (9).

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 676, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-712 as it existed prior to 2019.

12-10-613. Prohibited activities - grounds for disciplinary actions - procedures.

  1. A real estate appraiser is in violation of this part 6 if the appraiser:
    1. Has been convicted of a felony or has had accepted by a court a plea of guilty or nolo contendere to a felony if the felony is related to the ability to act as a real property appraiser. A certified copy of the judgment of a court of competent jurisdiction of the conviction or plea is conclusive evidence of the conviction or plea. In considering the disciplinary action, the board shall be governed by the provisions of section 24-5-101.
    2. Has violated, or attempted to violate, directly or indirectly, or assisted in or abetted the violation of, or conspired to violate this part 6, a rule promulgated pursuant to this part 6, or an order of the board issued pursuant to this part 6;
    3. Has accepted any fees, compensation, or other valuable consideration to influence the outcome of an appraisal;
    4. Has used advertising that is misleading, deceptive, or false;
    5. Has used fraud or misrepresentation in obtaining a license or certificate under this part 6;
    6. Has conducted an appraisal in a fraudulent manner or used misrepresentation in any such activity;
    7. Has acted or failed to act in a manner that does not meet the generally accepted standards of professional appraisal practice as adopted by the board by rule. A certified copy of a malpractice judgment of a court of competent jurisdiction is conclusive evidence of the act or omission, but evidence of the act or omission is not limited to a malpractice judgment.
    8. Has performed appraisal services beyond his or her level of competency;
    9. Has been subject to an adverse or disciplinary action in another state, territory, or country relating to a license, certificate, or other authorization to practice as an appraiser. A disciplinary action relating to a license or certificate as an appraiser licensed or certified under this part 6 or any related occupation in any other state, territory, or country for disciplinary reasons is prima facie evidence of grounds for disciplinary action or denial of licensure or certification by the board. This subsection (1)(i) applies only to violations based upon acts or omissions in the other state, territory, or country that are also violations of this part 6.
    10. Has failed to disclose in the appraisal report the fee paid to the appraiser for a residential real property appraisal if the appraiser was engaged by an appraisal management company to complete the assignment; or
    11. Has engaged in conduct that would be grounds for the denial of a license or certification under section 12-10-612.
  2. If an applicant, a licensee, or a certified person has violated any provision of this section, the board may deny or refuse to renew the license or certificate, or, as specified in subsections (3) and (6) of this section, revoke or suspend the license or certificate, issue a letter of admonition to a licensee or certified person, place a licensee or certified person on probation, or impose public censure.
  3. When a complaint or an investigation discloses an instance of misconduct by a licensed or certified appraiser that, in the opinion of the board, does not warrant formal action by the board but should not be dismissed as being without merit, the board may send a letter of admonition by certified mail to the appraiser against whom a complaint was made. The letter shall advise the appraiser of the right to make a written request, within twenty days after receipt of the letter of admonition, to the board to begin formal disciplinary proceedings as provided in this section to adjudicate the conduct or acts on which the letter was based.
  4. The board may start a proceeding for discipline of a licensee or certified person when the board has reasonable grounds to believe that a licensee or certified person has committed any act or failed to act pursuant to the grounds established in subsection (1) of this section or when a request for a hearing is timely made under subsection (3) of this section.
  5. Disciplinary proceedings shall be conducted in the manner prescribed by the “State Administrative Procedure Act”, article 4 of title 24.
  6. As authorized in subsection (2) of this section, disciplinary actions by the board may consist of the following:
    1. Revocation of a license or certificate.   (I) Revocation of a license or certificate by the board means that the licensed or certified person shall surrender his or her license or certificate immediately to the board.

      (II) Any person whose license or certificate to practice is revoked is ineligible to apply for a license or certificate issued under this part 6 until more than two years have elapsed from the date of surrender of the license or certificate. A reapplication after the two-year period is treated as a new application.

    2. Suspension of a license or certificate.   Suspension of a license or certificate by the board is for a period to be determined by the board.
    3. Probationary status.   The board may impose probationary status on a licensee or certified person. If the board places a licensee or certified person on probation, the board may include conditions for continued practice that the board deems appropriate to assure that the licensee or certified person is otherwise qualified to practice in accordance with generally accepted professional standards of professional appraisal practice, as specified in board rules, including any or all of the following:
      1. A requirement that the licensee or certified person take courses of training or education as needed to correct deficiencies found in the hearing;
      2. A review or supervision of his or her practice as may be necessary to determine the quality of the practice and to correct deficiencies in the practice; and
      3. The imposition of restrictions upon the nature of his or her appraisal practice to assure that he or she does not practice beyond the limits of his or her capabilities.
    4. Public censure.   If, after notice and hearing, the director or the director’s designee determines that the licensee or certified person has committed any of the acts specified in this section, the board may impose public censure.
  7. In addition to any other discipline imposed pursuant to this section, any person who violates this part 6 or the rules promulgated pursuant to this article 10 may be penalized by the board upon a finding of a violation pursuant to article 4 of title 24 as follows:
    1. In the first administrative proceeding against a person, a fine of not less than three hundred dollars but not more than five hundred dollars per violation;
    2. In any subsequent administrative proceeding against a person for transactions occurring after a final agency action determining that a violation of this part 6 has occurred, a fine of not less than one thousand dollars but not more than two thousand dollars.
  8. A person participating in good faith in making a complaint or report or participating in an investigative or administrative proceeding before the board pursuant to this article 10 is immune from any liability, civil or criminal, that otherwise might result by reason of the action.
  9. A licensee or certified person who has direct knowledge that a person has violated this part 6 shall report his or her knowledge to the board.
  10. The board, on its own motion or upon application at any time after the imposition of discipline as provided in this section, may reconsider its prior action and reinstate or restore a license or certificate, terminate probation, or reduce the severity of its prior disciplinary action. The decision of whether to take any further action or hold a hearing with respect to a prior disciplinary action rests in the sole discretion of the board.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 676, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-713 as it existed prior to 2019.

ANNOTATION

Prohibition of disclosure of records during an investigation set forth in subsection (7) does not expressly make such records subject to disclosure when the investigation is complete. Only by negative implication would subsection (7) imply a disclosure requirement, and any disclosure is expressly subject to the disclosure provision of the Colorado Open Records Act. Land Owners United, LLC v. Waters, 293 P.3d 86 (Colo. App. 2011) (decided under former law).

12-10-614. Appraisal management companies - prohibited activities - grounds for disciplinary actions - procedures - rules.

  1. The board, upon its own motion, may, and upon a complaint submitted to the board in writing by any person, shall, investigate the activities of a licensed appraisal management company; an appraiser designated as a controlling appraiser by a partnership, limited liability company, or corporation acting as an appraisal management company; or a person or an entity that assumes to act in that capacity within the state. The board, upon finding a violation, may impose an administrative fine not to exceed two thousand five hundred dollars for each separate offense; censure a licensee; place the licensee on probation and set the terms of probation; or temporarily suspend or permanently revoke a license, when the licensee has performed, is performing, or is attempting to perform any of the following acts:
    1. Failing to:
      1. Exercise due diligence when hiring or engaging a real estate appraiser to ensure that the real estate appraiser is appropriately credentialed by the board and competent to perform the assignment; and
      2. In the case of an AMC, establish and comply with processes and controls reasonably designed to ensure that the AMC conducts its appraisal management services in accordance with the requirements of the federal “Truth in Lending Act”, 15 U.S.C. sec. 1639e (a) to (i), and regulations adopted pursuant to that act;
    2. Requiring an appraiser to indemnify the appraisal management company against liability, damages, losses, or claims other than those arising out of the services performed by the appraiser, including performance or nonperformance of the appraiser’s duties and obligations, whether as a result of negligence or willful misconduct;
    3. Influencing or attempting to influence the development, reporting, result, or review of a real estate appraisal or the engagement of an appraiser through coercion, extortion, collusion, compensation, inducement, intimidation, bribery, or in any other manner. This prohibition does not prohibit an appraisal management company from requesting an appraiser to:
      1. Consider additional, appropriate property information;
      2. Provide further detail, substantiation, or explanation for the appraiser’s value conclusion; or
      3. Correct errors in the appraisal report.
    4. Prohibiting an appraiser, in the completion of an appraisal service, from communicating with the client, any intended users, real estate brokers, tenants, property owners, management companies, or any other entity that the appraiser reasonably believes has information pertinent to the completion of an appraisal assignment; except that this subsection (1)(d) does not apply to communications between an appraiser and an appraisal management company’s client if the client has adopted an explicit policy prohibiting the communication. If the client has adopted an explicit policy prohibiting communication by the appraiser with the client, communication by an appraiser to the client must be made in writing and submitted to the appraisal management company.
    5. Altering or modifying a completed appraisal report without the authoring appraiser’s knowledge and written consent, and the consent of the intended user, except to modify the format of the report solely for transmission to the client and in a manner acceptable to the client;
    6. Requiring an appraiser to provide to the appraisal management company access to the appraiser’s electronic signature;
    7. Failing to validate or verify that the work completed by an appraiser who is hired or engaged by the appraisal management company complies with state and federal regulations, including the uniform standards of professional appraisal practice, by conducting an annual audit of a random sample of the appraisals received within the previous year by the appraisal management company. The board shall establish annual appraisal review requirements by rule and shall solicit and consider information and comments from interested persons.
    8. Failing to make payment to an appraiser within sixty days after completion of the appraisal, unless otherwise agreed or unless the appraiser has been notified in writing that a bona fide dispute exists regarding the performance or quality of the appraisal;
    9. Failing to perform the terms of a written agreement with an appraiser hired or engaged to complete an appraisal assignment;
    10. Failing to disclose to an appraiser, at the time of engagement, the identity of the client;
    11. Using an appraisal report for a client other than the one originally contracted with, without the original client’s written consent;
    12. Failing to maintain possession of, for future use or inspection by the board, for a period of at least five years or at least two years after final disposition of any judicial proceeding in which a representative of the appraisal management company provided testimony related to the assignment, whichever period expires last, the documents or records prescribed by the rules of the board or to produce the documents or records upon reasonable request by the board;
    13. Having been convicted of, or entering a plea of guilty, an Alford plea, or a plea of nolo contendere to, any misdemeanor or felony relating to the conduct of an appraisal, theft, embezzlement, bribery, fraud, misrepresentation, or deceit, or any other like crime under Colorado law, federal law, or the laws of other states. A certified copy of the judgment of a court of competent jurisdiction of the conviction or other official record indicating that a plea was entered is conclusive evidence of the conviction or plea in any hearing under this part 6.
    14. Having been the subject of an adverse or disciplinary action in another state, territory, or country relating to a license, registration, certification, or other authorization to practice as an appraisal management company. A disciplinary action relating to a registration, license, or certificate as an appraisal management company under this part 6 or any related occupation in any other state, territory, or country for disciplinary reasons is prima facie evidence of grounds for disciplinary action or denial of a license by the board. This subsection (1)(n) applies only to violations based upon acts or omissions in the other state, territory, or country that would violate this part 6 if committed in Colorado.
    15. Violating the “Colorado Consumer Protection Act”, article 1 of title 6;
    16. Procuring, or attempting to procure, an appraisal management company license or renewing, reinstating, or reactivating, or attempting to renew, reinstate, or reactivate, an appraisal management company license by fraud, misrepresentation, or deceit or by making a material misstatement of fact in an application for a license;
    17. Knowingly misrepresenting or making false promises through agents, advertising, or otherwise;
    18. Failing to disclose to a client the fee amount paid to the appraiser hired or engaged to complete the appraisal upon completion of the assignment; or
    19. Disregarding, violating, or abetting, directly or indirectly, a violation of this part 6, a rule promulgated by the board pursuant to this part 6, or an order of the board entered pursuant to this part 6.
  2. When a complaint or an investigation discloses an instance of misconduct that, in the opinion of the board, does not warrant formal action by the board but should not be dismissed as being without merit, the board may send a letter of admonition by certified mail, return receipt requested, to the licensee against whom the complaint was made. The letter shall advise the licensee of the right to make a written request, within twenty days after receipt of the letter of admonition, to the board to begin formal disciplinary proceedings as provided in this section to adjudicate the conduct or acts on which the letter was based.
  3. Disciplinary proceedings must be conducted in the manner prescribed by the “State Administrative Procedure Act”, article 4 of title 24.
  4. If a partnership, limited liability company, or corporation operating under the license of an appraiser designated and licensed as a controlling appraiser by the partnership, limited liability company, or corporation is guilty of any act listed in subsection (1) of this section, the board may suspend or revoke the right of the partnership, limited liability company, or corporation to conduct its business under the license of the controlling appraiser, whether or not the controlling appraiser had personal knowledge of the violation and whether or not the board suspends or revokes the individual license of the controlling appraiser.
  5. This part 6 does not relieve any person from civil liability or criminal prosecution under the laws of this state.
  6. A licensee or certified person having direct knowledge that a person or licensed partnership, limited liability company, or corporation has violated this part 6 shall report his or her knowledge to the board.
  7. The board, on its own motion or upon application, at any time after the imposition of discipline as provided in this section, may reconsider its prior action and reinstate or restore a license, terminate probation, or reduce the severity of its prior disciplinary action. The decision of whether to take any further action or hold a hearing with respect to the action rests in the sole discretion of the board.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 679, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-714 as it existed prior to 2019.

12-10-615. Judicial review of final board actions and orders.

Final actions and orders of the board under sections 12-10-612, 12-10-613, and 12-10-614 appropriate for judicial review are subject to judicial review in the court of appeals in accordance with section 24-4-106 (11).

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 682, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-715 as it existed prior to 2019.

12-10-616. Unlawful acts - penalties.

  1. It is unlawful for a person to:
    1. Violate section 12-10-613 (1)(c), (1)(e), or (1)(f) or perform a real estate appraisal without first having obtained a license or certificate from the board pursuant to this part 6;
    2. Accept a fee for an independent appraisal assignment that is contingent upon:
      1. Reporting a predetermined analysis, opinion, or conclusion; or
      2. The analysis, opinion, or conclusion reached; or
      3. The consequences resulting from the analysis, opinion, or conclusion;
    3. Misrepresent a consulting service as an independent appraisal; or
    4. Fail to disclose, in connection with a consulting service for which a contingent fee is or will be paid, the fact that a contingent fee is or will be paid.
  2. [Editor’s note: This version of subsection (2) is effective until March 1, 2022.]  Any person who violates any provision of subsection (1) of this section commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501. Any person who subsequently violates any provision of subsection (1) of this section within five years after the date of a conviction for a violation of subsection (1) of this section commits a class 5 felony and shall be punished as provided in section 18-1.3-401.

    (2) [ Editor’s note: This version of subsection (2) is effective March 1, 2022. ] Any person who violates any provision of subsection (1) of this section commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501. Any person who subsequently violates any provision of subsection (1) of this section within five years after the date of a conviction for a violation of subsection (1) of this section commits a class 5 felony and shall be punished as provided in section 18-1.3-401.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 682, § 1, effective October 1. L. 2021: (2) amended,(SB 21-271), ch. 462, p. 3153, § 136, effective March 1, 2022.

Editor’s note: (1) This section is similar to former § 12-61-716 as it existed prior to 2019.

(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.

ANNOTATION

Annotator’s note. The following annotations include cases decided under former provisions similar to this section.

Appraiser cannot present expert testimony in a property valuation proceeding under a contingent fee arrangement. City & County of Denver v. Bd. of Assessment Appeals, 947 P.2d 1373 (Colo. 1997).

A contingent fee is prohibited in all property valuation proceedings including proceedings that do not involve a federal transaction. City & County of Denver v. Bd. of Assessment Appeals, 947 P.2d 1373 (Colo. 1997).

A contingent fee is prohibited even if the individual appraiser testifying as an expert witness is a salaried employee of a party to a contingent fee agreement who did not personally execute the contingent fee agreement and would not receive fees from the agreement. This avoids the absurd result of allowing firms that employ appraisers to accept contingent fees while prohibiting individual appraisers from doing so. City & County of Denver v. Bd. of Assessment Appeals, 947 P.2d 1373 (Colo. 1997).

Proper remedy where an appraiser improperly gives expert testimony pursuant to a contingent fee agreement in a property valuation proceeding before the board of assessment appeals is a remand for de novo proceedings. City & County of Denver v. Bd. of Assessment Appeals, 947 P.2d 1373 (Colo. 1997).

Notwithstanding a contingent fee arrangement, the board of assessment appeals properly admitted documentary evidence and testimony presented by taxpayer’s expert witness as a consulting service. Such evidence was admissible in board of assessment appeals hearings if there has been proper disclosure of the contingent fee arrangement and the nature of the appraiser’s work. FirstBank Longmont v. Boulder County Bd. of Equaliz., 990 P.2d 1109 (Colo. App. 1999).

12-10-617. Appraisal management company license required - violations - injunction.

  1. Except as provided in section 12-10-607 (9), it is unlawful for any person, partnership, limited liability company, or corporation to engage in the business of appraisal management in this state without first having obtained a license from the board. The board shall not grant a license to a person, partnership, limited liability company, or corporation until the person, partnership, limited liability company, or corporation demonstrates compliance with this part 6.
  2. The board may apply to a court of competent jurisdiction for an order enjoining an act or practice that constitutes a violation of this part 6, and, upon a showing that a person, partnership, limited liability company, or corporation is engaging or intends to engage in an act or practice that violates this part 6, the court shall grant an injunction, restraining order, or other appropriate order, regardless of the existence of another remedy for the violation. Any notice, hearing, or duration of an injunction or restraining order shall be made in accordance with the Colorado rules of civil procedure.
  3. [Editor’s note: This version of subsection (3) is effective until March 1, 2022.]  Any person, partnership, limited liability company, or corporation violating this part 6 by acting as an appraisal management company without having obtained a license or acting as an appraisal management company after the appraisal management company’s license has been revoked or during any period for which the license was suspended is guilty of a misdemeanor and, upon conviction thereof:
    1. If a natural person, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment, for the first violation and, for a second or subsequent violation, shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than six months, or by both such fine and imprisonment; and
    2. If an entity, shall be punished by a fine of not more than five thousand dollars.

      (3) [ Editor’s note: This version of subsection (3) is effective March 1, 2022. ] Any person, partnership, limited liability company, or corporation violating this part 6 by acting as an appraisal management company without having obtained a license or acting as an appraisal management company after the appraisal management company’s license has been revoked or during any period for which the license was suspended commits a class 2 misdemeanor.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 683, § 1, effective October 1. L. 2021: (3) amended,(SB 21-271), ch. 462, p. 3154, § 137, effective March 1, 2022.

Editor’s note: (1) This section is similar to former § 12-61-717 as it existed prior to 2019.

(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.

12-10-618. Injunctive proceedings.

  1. The board may, in the name of the people of the state of Colorado, through the attorney general of the state of Colorado, apply for an injunction in any court of competent jurisdiction to perpetually enjoin a person or appraisal management company from committing an act prohibited by this part 6.
  2. Injunctive proceedings under this section are in addition to and not in lieu of penalties and other remedies provided in this part 6.
  3. When seeking an injunction under this section, the board is not required to allege or prove either that an adequate remedy at law does not exist or that substantial or irreparable damage would result from a continued violation.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 683, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-718 as it existed prior to 2019.

12-10-619. Special provision for appraiser employees of county assessors.

  1. Except as provided in subsection (2) of this section, unless a federal waiver is applied for and granted pursuant to section 12-10-604 (1)(i), a person acting as a real estate appraiser in this state shall be licensed or certified as provided in this part 6. No person shall practice without a license or certificate or hold himself or herself out to the public as a licensed or certified real estate appraiser unless licensed or certified pursuant to this part 6.
  2. An appraiser employee of a county assessor who is employed to appraise real property shall be licensed or certified as provided in this part 6 and shall have two years from the date of taking office or the beginning of employment to comply with this part 6.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 684, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-719 as it existed prior to 2019.

ANNOTATION

This section is unconstitutional as applied to county assessors. The qualifications for county officers that are specified in article XIV, § 10, of the Colorado Constitution are exclusive. Thus, the general assembly does not have authority to require additional qualifications, including licensure. Reale v. Bd. of Real Estate Appraisers, 880 P.2d 1205 (Colo. 1994) (decided under former law).

12-10-620. Duties of board under federal law.

  1. The board shall:
    1. Transmit to the appraisal subcommittee of the federal financial institutions examination council or its successor entity, no less than annually, a roster listing individuals and appraisal management companies that have received a certificate or license as provided in this part 6;
    2. Collect and transmit, on an annual basis, to the federal financial institutions examination council an annual registry fee, as prescribed by the appraisal subcommittee of the federal financial institutions examination council or its successor entity, from the following individuals and entities:
      1. Individuals and appraisal management companies that are licensed or certified pursuant to this part 6; and
      2. Appraisal management companies that operate as subsidiaries of federally regulated financial institutions; and
    3. Conduct its business and promulgate rules in a manner consistent with Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, Pub.L. 101-73.
  2. The board shall not collect or transmit the information required by this section for licensed ad valorem appraisers.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 684, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-720 as it existed prior to 2019.

12-10-621. Business entities.

  1. A corporation, partnership, bank, savings and loan association, savings bank, credit union, or other business entity may provide appraisal services if the appraisal is prepared by a certified general appraiser, a certified residential appraiser, or a licensed appraiser. An individual who is not a certified general appraiser, a certified residential appraiser, or a licensed appraiser may assist in the preparation of an appraisal if:
    1. The assistant is under the direct supervision of a certified or licensed appraiser; and
    2. The final appraisal document is approved and signed by an individual who is a certified or licensed appraiser.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 685, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-721 as it existed prior to 2019.

12-10-622. Provisions found not to comply with federal law null and void - severability.

  1. If any provision of this part 6 is found by a court of competent jurisdiction or by the appropriate federal agency not to comply with the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, Pub.L. 101-73, the provision is null and void, but the remaining provisions of this part 6 are valid unless the remaining provisions alone are incomplete and are incapable of being executed in accordance with the legislative intent of this part 6.
  2. If the regulation of appraisal management companies is repealed from Title XI of the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989”, as amended, Pub.L. 101-73, the board’s jurisdiction over these entities is also repealed. Before the repeal, the division shall review the regulation of appraisal management companies as provided in section 24-34-104. If the board’s jurisdiction is repealed, the director shall notify the revisor of statutes of the date of the repeal.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 685, § 1, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-722 as it existed prior to 2019.

(2) As of publication date, the revisor of statutes has not received the notice referred to in subsection (2).

12-10-623. Scope of article - regulated financial institutions - de minimis exemption.

    1. This article 10 does not apply to an appraisal relating to any real-estate-related transaction or loan made or to be made by a financial institution or its affiliate if the real-estate-related transaction or loan is excepted from appraisal regulations established by the primary federal regulator of the financial institution and the appraisal is performed by:
      1. An officer, director, regularly salaried employee, or agent of the financial institution or its affiliate; or
      2. A real estate broker licensed under this article 10 with whom the institution or affiliate has contracted for performance of the appraisal.
    2. The appraisal must not be represented or deemed to be an appraisal except to the financial institution, the agencies regulating the financial institution, and any secondary markets that purchase real estate secured loans. The appraisal must contain a written notice that the preparer is not licensed or certified as an appraiser under this part 6. Nothing in this subsection (1) exempts a person licensed or certified as an appraiser under this part 6 from regulation as provided in this part 6.
  1. Nothing in this article 10 limits the ability of any federal or state regulator of a financial institution to require the financial institution to obtain appraisals as specified by the regulator.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 685, § 1, effective October 1. L. 2020: (1)(a)(I) amended,(SB 20-047), ch. 17, p. 72, § 2, effective September 14.

Editor’s note: This section is similar to former § 12-61-723 as it existed prior to 2019.

Part 7. Mortgage Loan Originators

12-10-701. Short title.

The short title of this part 7 is the “Mortgage Loan Originator Licensing and Mortgage Company Registration Act”.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 686, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-901 as it existed prior to 2019.

12-10-702. Definitions.

As used in this part 7, unless the context otherwise requires:

  1. “Affiliate” means a person who, directly or indirectly, through intermediaries, controls, is controlled by, or is under the common control of another person addressed by this part 7.
  2. “Affordable housing dwelling unit” means an affordable housing dwelling unit as defined in section 29-26-102.
  3. “Board” means the board of mortgage loan originators created in section 12-10-703.
  4. “Borrower” means any person who consults with or retains a mortgage loan originator in an effort to obtain or seek advice or information on obtaining or applying to obtain a residential mortgage loan for himself, herself, or persons including himself or herself, regardless of whether the person actually obtains such a loan.
  5. “Community development organization” means any community housing development organization or community land trust as defined by the federal “Cranston-Gonzalez National Affordable Housing Act” of 1990 or a community-based development organization as defined by the federal “Housing and Community Development Act of 1974”, that is also either a private or public nonprofit organization that is exempt from taxation under section 501 (a) of the federal “Internal Revenue Code of 1986” pursuant to section 501 (c) of the federal “Internal Revenue Code of 1986”, 26 U.S.C. sec. 501 (a) and 501 (c), as amended, and that receives funding from the United States department of housing and urban development, Colorado division of housing, Colorado housing and finance authority, or United States department of agriculture rural development, or through a grantee of the United States department of housing and urban development, purely for the purpose of community housing development activities.
  6. “Depository institution” has the same meaning as set forth in the “Federal Deposit Insurance Act”, 12 U.S.C. sec. 1813 (c), and includes a credit union.
  7. “Dwelling” shall have the same meaning as set forth in the federal “Truth in Lending Act”, 15 U.S.C. sec. 1602 (w).
  8. “Federal banking agency” means the board of governors of the federal reserve system, the comptroller of the currency, the director of the office of thrift supervision, the national credit union administration, or the federal deposit insurance corporation.
  9. “HUD-approved housing counseling agency” means an agency that is either a private or public nonprofit organization that is exempt from taxation under section 501 (a) of the federal “Internal Revenue Code of 1986” pursuant to section 501 (c) of the federal “Internal Revenue Code of 1986”, 26 U.S.C. sec. 501 (a) and 501 (c), as amended, and approved by the United States department of housing and urban development, in accordance with the housing counseling program handbook section 7610.1 and 24 CFR 214.
  10. “Individual” means a natural person.
    1. “Loan processor or underwriter” means an individual who performs clerical or support duties at the direction of, and subject to supervision by, a state-licensed loan originator or a registered loan originator.
    2. As used in this subsection (11), “clerical or support duties” includes duties performed after receipt of an application for a residential mortgage loan, including:
      1. The receipt, collection, distribution, and analysis of information commonly used for the processing or underwriting of a residential mortgage loan; and
      2. Communicating with a borrower to obtain the information necessary to process or underwrite a loan, to the extent that the communication does not include offering or negotiating loan rates or terms or counseling consumers about residential mortgage loan rates or terms.
  11. “Mortgage company” means a person other than an individual who, through employees or other individuals, takes residential loan applications or offers or negotiates terms of a residential mortgage loan.
  12. “Mortgage lender” means a lender who is in the business of making residential mortgage loans if:
    1. The lender is the payee on the promissory note evidencing the loan; and
    2. The loan proceeds are obtained by the lender from its own funds or from a line of credit made available to the lender from a bank or other entity that regularly loans money to lenders for the purpose of funding mortgage loans.
    1. “Mortgage loan originator” means an individual who:
      1. Takes a residential mortgage loan application; or
      2. Offers or negotiates terms of a residential mortgage loan.
    2. “Mortgage loan originator” does not include:
      1. An individual engaged solely as a loan processor or underwriter;
      2. A person that only performs real estate brokerage or sales activities and is licensed or registered pursuant to part 2 of this article 10, unless the person is compensated by a mortgage lender or a mortgage loan originator;
      3. A person solely involved in extensions of credit relating to time share plans, as defined in 11 U.S.C. sec. 101 (53D);
      4. An individual who is servicing a mortgage loan; or
      5. A person that only performs the services and activities of a dealer, as defined in section 24-32-3302.
  13. “Nationwide mortgage licensing system and registry” means a mortgage licensing system developed pursuant to the federal “Secure and Fair Enforcement for Mortgage Licensing Act of 2008”, 12 U.S.C. sec. 5101 et seq., as amended, to track the licensing and registration of mortgage loan originators and that is established and maintained by:
    1. The Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators, or their successor entities; or
    2. The secretary of the United States department of housing and urban development.
  14. “Nontraditional mortgage product” means a mortgage product other than a thirty-year, fixed-rate mortgage.
  15. “Originate a mortgage” means to act, directly or indirectly, as a mortgage loan originator.
  16. “Person” means a natural person, corporation, company, limited liability company, partnership, firm, association, or other legal entity.
  17. “Quasi-government agency” means an agency that is either a private or public nonprofit organization that is exempt from taxation under section 501 (a) of the federal “Internal Revenue Code of 1986” pursuant to section 501 (c) of the federal “Internal Revenue Code of 1986”, 26 U.S.C. sec. 501 (a) and 501 (c), as amended, and was created to operate in accordance with article 4 of title 29 as a public housing authority.
  18. “Real estate brokerage activity” means an activity that involves offering or providing real estate brokerage services to the public, including, without limitation:
    1. Acting as a real estate agent or real estate broker for a buyer, seller, lessor, or lessee of real property;
    2. Bringing together parties interested in the sale, purchase, lease, rental, or exchange of real property;
    3. Negotiating, on behalf of any party, any portion of a contract relating to the sale, purchase, lease, rental, or exchange of real property, other than matters related to financing for the transaction;
    4. Engaging in an activity for which a person engaged in the activity is required under applicable law to be registered or licensed as a real estate agent or real estate broker; or
    5. Offering to engage in any activity, or act in any capacity related to the activity, described in this subsection (20).
  19. “Residential mortgage loan” means a loan that is primarily for personal, family, or household use and that is secured by a mortgage, deed of trust, or other equivalent, consensual security interest on a dwelling or residential real estate upon which is constructed or intended to be constructed a single-family dwelling or multiple-family dwelling of four or fewer units.
  20. “Residential real estate” means any real property upon which a dwelling is or will be constructed.
  21. “Self-help housing organization” means a private or public nonprofit organization that is exempt from taxation under section 501 (a) of the federal “Internal Revenue Code of 1986” pursuant to section 501 (c) of the federal “Internal Revenue Code of 1986”, 26 U.S.C. sec. 501 (a) and 501 (c), as amended, and that purely originates residential mortgage loans with interest rates no greater than zero percent for borrowers who have provided part of the labor to construct the dwelling securing the loan or that receives funding from the United States department of agriculture rural development section 502 mutual self-help housing program for borrowers that have provided part of the labor to construct the dwelling securing the loan.
  22. “Servicing a mortgage loan” means collecting, receiving, or obtaining the right to collect or receive payments on behalf of a mortgage lender, including payments of principal, interest, escrow amounts, and other amounts due on obligations due and owing to the mortgage lender.
  23. “State-licensed loan originator” means an individual who is:
    1. A mortgage loan originator or engages in the activities of a mortgage loan originator;
    2. Not an employee of a depository institution or a subsidiary that is:
      1. Owned and controlled by a depository institution; and
      2. Regulated by a federal banking agency;
    3. Licensed or required to be licensed pursuant to this part 7; and
    4. Registered as a state-licensed loan originator with, and maintains a unique identifier through, the nationwide mortgage licensing system and registry.
  24. “Unique identifier” means a number or other identifier assigned to a mortgage loan originator pursuant to protocols established by the nationwide mortgage licensing system and registry.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 686, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-902 as it existed prior to 2019.

12-10-703. Board of mortgage loan originators - creation - compensation - enforcement of part after board creation - immunity.

    1. There is hereby created in the division of real estate a board of mortgage loan originators, consisting of five members appointed by the governor with the consent of the senate.
    2. Of the members of the board:
      1. Three must be licensed mortgage loan originators. The general assembly encourages the governor to appoint to at least one of these three positions a licensed mortgage loan originator who is an employee or exclusive agent of, or works as an independent contractor for, a Colorado-based mortgage company.
      2. Two must be members of the public at large not engaged in mortgage loan origination or mortgage lending.
    3. Of the members of the board appointed for terms beginning on and after August 11, 2010, two of the members appointed as mortgage loan originators and one of the members appointed as a member of the public at large shall be appointed for terms of two years, and one of the members appointed as a mortgage loan originator and one of the members appointed as a member of the public at large shall serve for terms of four years. Thereafter, members of the board shall hold office for a term of four years.
    4. In the event of a vacancy by death, resignation, removal, or otherwise, the governor shall appoint a member to fill the unexpired term. The governor has the authority to remove any member for misconduct, neglect of duty, or incompetence.
    1. The board shall exercise its powers and perform its duties and functions under the department as if transferred to the department by a type 1 transfer, as such transfer is defined in the “Administrative Organization Act of 1968”, article 1 of title 24.
    2. Notwithstanding any other provision of this part 7, on and after the creation of the board by this section, the board shall exercise all of the rule-making, enforcement, and administrative authority of the director set forth in this part 7. The board has the authority to delegate to the director any enforcement and administrative authority under this part 7 that the board deems necessary and appropriate. If the board delegates any enforcement or administrative authority under this part 7 to the director, the director shall only be entitled to exercise such authority as specifically delegated in writing to the director by the board.
  1. Each member of the board shall receive the same compensation and reimbursement of expenses as those provided for members of boards and commissions in the division of professions and occupations pursuant to section 12-20-103 (6). Payment for all per diem compensation and expenses shall be made out of annual appropriations from the division of real estate cash fund created in section 12-10-215.
  2. Members of the board, consultants, and expert witnesses shall be immune from suit in any civil action based upon any disciplinary proceedings or other official acts they performed in good faith pursuant to this part 7.
  3. A majority of the board shall constitute a quorum for the transaction of all business, and actions of the board shall require a vote of a majority of the members present in favor of the action taken.
    1. All rules promulgated by the director prior to August 11, 2010, shall remain in full force and effect until repealed or modified by the board. The board shall have the authority to enforce any previously promulgated rules of the director under this part 7 and any rules promulgated by the board.
    2. Nothing in this section shall affect any action taken by the director prior to August 11, 2010. No person who, on or before August 11, 2010, holds a license issued under this part 7 shall be required to secure an additional license under this part 7, but shall otherwise be subject to all the provisions of this part 7. A license previously issued shall, for all purposes, be considered a license issued by the board under this part 7.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 690, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-902.5 as it existed prior to 2019.

12-10-704. License required - rules.

    1. Unless licensed by the board and registered with the nationwide mortgage licensing system and registry as a state-licensed loan originator, an individual shall not originate or offer to originate a mortgage or act or offer to act as a mortgage loan originator.
    2. On and after January 1, 2010, a licensed mortgage loan originator shall apply for license renewal in accordance with subsection (5) of this section every calendar year as determined by the board by rule.
  1. An independent contractor may not engage in residential mortgage loan origination activities as a loan processor or underwriter unless the independent contractor is a state-licensed loan originator.
  2. An applicant for initial licensing as a mortgage loan originator shall submit to the board the following:
    1. A criminal history record check in compliance with subsection (6) of this section;
    2. A disclosure of all administrative discipline taken against the applicant concerning the categories listed in section 12-10-711 (1)(c); and
    3. The application fee established by the board in accordance with section 12-10-718.
    1. In addition to the requirements imposed by subsection (3) of this section, on or after August 5, 2009, each individual applicant for initial licensing as a mortgage loan originator must have satisfactorily completed:
      1. At least twenty hours of education as administered and approved by the Nationwide Multistate Licensing System and Registry or its successor; and
      2. A written examination approved by the board. For the portion of the examination that represents the state-specific test required in the federal “Secure and Fair Enforcement for Mortgage Licensing Act of 2008”, 12 U.S.C. sec. 5101 et seq., as amended, the board may adopt the uniform state test administered through the Nationwide Multistate Licensing System and Registry or its successor.
    2. The board may contract with one or more independent testing services to develop, administer, and grade the examinations required by subsection (4)(a) of this section and to maintain and administer licensee records. The contract may allow the testing service to recover from applicants its costs incurred in connection with these functions. The board may contract separately for these functions and may allow the costs to be collected by a single contractor for distribution to other contractors.
    3. The board may publish reports summarizing statistical information prepared by the nationwide mortgage licensing system and registry relating to mortgage loan originator examinations.
  3. An applicant for license renewal shall submit to the board the following:
    1. A disclosure of all administrative discipline taken against the applicant concerning the categories listed in section 12-10-711 (1)(c); and
    2. The renewal fee established by the board in accordance with section 12-10-718.
    1. Prior to submitting an application for a license, an applicant shall submit a set of fingerprints to the Colorado bureau of investigation. Upon receipt of the applicant’s fingerprints, the Colorado bureau of investigation shall use the fingerprints to conduct a state and national criminal history record check using records of the Colorado bureau of investigation and the federal bureau of investigation. All costs arising from the criminal history record check must be borne by the applicant and must be paid when the set of fingerprints is submitted. Upon completion of the criminal history record check, the bureau shall forward the results to the board. The board shall acquire a name-based criminal history record check, as defined in section 22-2-119.3 (6)(d), for an applicant who has twice submitted to a fingerprint-based criminal history record check and whose fingerprints are unclassifiable or when the results of a fingerprint-based criminal history record check of an applicant performed pursuant to this subsection (6) reveal a record of arrest without a disposition. The applicant shall pay the costs associated with a name-based criminal history record check.
    2. If the board determines that the criminal background check provided by the nationwide mortgage licensing system and registry is a sufficient method of screening license applicants to protect Colorado consumers, the board may, by rule, authorize the use of that criminal background check instead of the criminal history record check otherwise required by this subsection (6).
    1. On and after January 1, 2010, in connection with an application for a license as a mortgage loan originator, the applicant shall furnish information concerning the applicant’s identity to the nationwide mortgage licensing system and registry. The applicant shall furnish, at a minimum, the following:
      1. Fingerprints for submission to the federal bureau of investigation and any government agency or entity authorized to receive fingerprints for a state, national, or international criminal history record check; and
      2. Personal history and experience, in a form prescribed by the nationwide mortgage licensing system and registry, including submission of authorization for the nationwide mortgage licensing system and registry to obtain:
        1. An independent credit report from the consumer reporting agency described in the federal “Fair Credit Reporting Act”, 15 U.S.C. sec. 1681a (p); and
        2. Information related to any administrative, civil, or criminal findings by a government jurisdiction.
    2. An applicant is responsible for paying all costs arising from a criminal history record check and shall pay the costs upon submission of fingerprints.
    3. The board shall acquire a name-based criminal history record check, as defined in section 22-2-119.3 (6)(d), for an applicant who has twice submitted to a fingerprint-based criminal history record check and whose fingerprints are unclassifiable or when the results of a fingerprint-based criminal history record check of an applicant performed pursuant to this subsection (7) reveal a record of arrest without a disposition. The applicant shall pay the costs associated with a name-based criminal history record check.
  4. Before granting a license to an applicant, the board shall require the applicant to post a bond as required by section 12-10-717.
  5. The board shall issue or deny a license within sixty days after:
    1. The applicant has submitted the requisite information to the board and the Nationwide Multistate Licensing System and Registry, including the completed application and any necessary supplementary information, the application fee, and proof that the applicant has posted a surety bond and obtained errors and omissions insurance; and
    2. The board receives the completed criminal history record check and all other relevant information or documents necessary to reasonably ascertain facts underlying the applicant’s criminal history.
    1. The board may require, as a condition of license renewal on or after January 1, 2009, continuing education of licensees for the purpose of enhancing the professional competence and professional responsibility of all licensees.
    2. Continuing professional education requirements shall be determined by the board by rule; except that licensees shall be required to complete at least eight credit hours of continuing education each year. The board may contract with one or more independent service providers to develop, review, or approve continuing education courses. The contract may allow the independent service provider to recover from licensees its costs incurred in connection with these functions. The board may contract separately for these functions and may allow the costs to be collected by a single contractor for distribution to other contractors.
    1. The board may require contractors and prospective contractors for services under subsections (4) and (10) of this section to submit, for the board’s review and approval, information regarding the contents and materials of proposed courses and other documentation reasonably necessary to further the purposes of this section.
    2. The board may set fees for the initial and continuing review of courses for which credit hours will be granted. The initial filing fee for review of materials shall not exceed five hundred dollars, and the fee for continued review shall not exceed two hundred fifty dollars per year per course offered.
  6. The board may adopt reasonable rules to implement this section. The board may adopt rules necessary to implement provisions required in the federal “Secure and Fair Enforcement for Mortgage Licensing Act of 2008”, 12 U.S.C. sec. 5101 et seq., as amended, and for participation in the nationwide mortgage licensing system and registry.
  7. In order to fulfill the purposes of this part 7, the board may establish relationships or contracts with the nationwide mortgage licensing system and registry or other entities designated by the nationwide mortgage licensing system and registry to collect and maintain records and process transaction fees or other fees related to licensees or other persons subject to this part 7.
  8. The board may use the nationwide mortgage licensing system and registry as a channeling agent for requesting information from or distributing information to the department of justice, a government agency, or any other source.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 691, § 1, effective October 1; (6)(a) and (7)(c) amended,(HB 19-1166), ch. 125, p. 566, § 72, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-903 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1166. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from April 18, 2019, to October 1, 2019, see HB 19-1166, chapter 125, Session Laws of Colorado 2019.

12-10-705. Registration required - rules.

  1. On or after January 1, 2011, each mortgage company shall register with the nationwide mortgage licensing system and registry, unless exempted by rule by the board, and shall renew its registration each calendar year based on the following criteria:
      1. The mortgage company is legally operating in the state of Colorado in accordance with standards determined and administered by the Colorado secretary of state; and
      2. The mortgage company is not legally barred from operating in Colorado.
    1. Sole proprietors, general partnerships, and other mortgage companies not otherwise required to register with the secretary of state shall register using a trade name.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 694, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-903.1 as it existed prior to 2019.

12-10-706. License or registration inactivation.

  1. The board may inactivate a state license or a registration with the nationwide mortgage licensing system and registry when a licensee has failed to:
    1. Comply with the surety bond requirements of sections 12-10-704 (8) and 12-10-717;
    2. Comply with the errors and omissions insurance requirement in section 12-10-707 or any rule of the board that directly or indirectly addresses errors and omissions insurance requirements;
    3. Maintain current contact information, surety bond information, or errors and omissions insurance information as required by this part 7 or by any rule of the board that directly or indirectly addresses those requirements;
    4. Respond to an investigation or examination;
    5. Comply with any of the education or testing requirements set forth in this part 7 or in any rule of the board that directly or indirectly addresses education or testing requirements; or
    6. Register with and provide all required information to the nationwide mortgage licensing system and registry.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 694, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-903.3 as it existed prior to 2019.

12-10-707. Errors and omissions insurance - duties of the board - certificate of coverage - when required - group plan made available - effect - rules.

  1. Every licensee under this part 7, except an inactive mortgage loan originator or an attorney licensee who maintains a policy of professional malpractice insurance that provides coverage for errors and omissions insurance for their activities as a licensee under this part 7, shall maintain errors and omissions insurance to cover all activities contemplated under this part 7. The division shall make the errors and omissions insurance available to all licensees by contracting with an insurer for a group policy after a competitive bid process in accordance with article 103 of title 24. A group policy obtained by the division must be available to all licensees with no right on the part of the insurer to cancel a licensee. A licensee may obtain errors and omissions insurance independently if the coverage complies with the minimum requirements established by the division.
    1. If the division is unable to obtain errors and omissions insurance coverage to insure all licensees who choose to participate in the group program at a reasonable annual premium, as determined by the division, a licensee shall independently obtain the errors and omissions insurance required by this section.
    2. The division shall solicit and consider information and comments from interested persons when determining the reasonableness of annual premiums.
  2. The division shall determine the terms and conditions of coverage required under this section based on rules promulgated by the board. Each licensee shall be notified of the required terms and conditions at least thirty days before the annual premium renewal date as determined by the division. Each licensee shall file a certificate of coverage showing compliance with the required terms and conditions with the division by the annual premium renewal date, as determined by the division.
  3. In addition to all other powers and duties conferred upon the board by this part 7, the board shall adopt such rules as it deems necessary or proper to carry out this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 695, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-903.5 as it existed prior to 2019.

12-10-708. License renewal.

  1. In order for a licensed mortgage loan originator to renew a license issued pursuant to this part 7, the mortgage loan originator shall:
    1. Continue to meet the minimum standards for issuance of a license pursuant to this part 7;
    2. Satisfy the annual continuing education requirements set forth in section 12-10-704 (10) and in rules adopted by the board; and
    3. Pay applicable license renewal fees.
  2. If a licensed mortgage loan originator fails to satisfy the requirements of subsection (1) of this section for license renewal, the mortgage loan originator’s license shall expire. The board shall adopt rules to establish procedures for the reinstatement of an expired license consistent with the standards established by the nationwide mortgage licensing system and registry.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 696, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-903.7 as it existed prior to 2019.

12-10-709. Exemptions - definition - rules.

  1. Except as otherwise provided in section 12-10-713, this part 7 does not apply to the following, unless otherwise determined by the federal bureau of consumer financial protection or the United States department of housing and urban development:
    1. With respect to a residential mortgage loan:
      1. A person, estate, or trust that provides mortgage financing for the sale of no more than three properties in any twelve-month period to purchasers of the properties, each of which is owned by the person, estate, or trust and serves as security for the loan; or
      2. An individual who acts as a mortgage loan originator, without compensation or gain to the mortgage loan originator, in providing loan financing for not more than three residential mortgage loans in any twelve-month period to a family member of the individual. The board shall define “family member” by rule. For purposes of this exemption only, “compensation or gain” excludes any interest paid under the loan financing provided.
    2. A bank and a savings association as these terms are defined in the “Federal Deposit Insurance Act”, 12 U.S.C. sec. 1811 et seq., as amended, a subsidiary that is owned and controlled by a bank or savings association, employees of a bank or savings association, employees of a subsidiary that is owned and controlled by a bank or savings association, credit unions, and employees of credit unions;
    3. An attorney who renders services in the course of practice, who is licensed in Colorado, and who is not primarily engaged in the business of negotiating residential mortgage loans;
    4. A person who:
      1. Funds a residential mortgage loan that has been originated and processed by a licensed person or by an exempt person;
      2. Does not solicit borrowers in Colorado for the purpose of making residential mortgage loans; and
      3. Does not participate in the negotiation of residential mortgage loans with the borrower, except for setting the terms under which a person may buy or fund a residential mortgage loan originated by a licensed or exempt person;
    5. A loan processor or underwriter who is not an independent contractor and who does not represent to the public that the individual can or will perform any activities of a mortgage loan originator. As used in this subsection (1)(e), “represent to the public” means communicating, through advertising or other means of communicating, or providing information, including the use of business cards, stationery, brochures, signs, rate lists, or other promotional items, that the individual is able to provide a particular service or activity for a consumer.
    6. To the extent that it is providing programs benefitting affordable housing dwelling units, an agency of the federal government, the Colorado government, or any of Colorado’s political subdivisions or employees of an agency of the federal government, of the Colorado government, or of any of Colorado’s political subdivisions;
    7. Quasi-government agencies, HUD-approved housing counseling agencies, or employees of quasi-government agencies or HUD-approved housing counseling agencies;
    8. Community development organizations or employees of community development organizations;
    9. Self-help housing organizations or employees of self-help housing organizations or volunteers acting as an agent of self-help housing organizations;
    10. A person licensed under part 2 of this article 10 who represents a person, estate, or trust providing mortgage financing under subsection (1)(a) of this section.
  2. The exemptions in subsection (1) of this section shall not apply to persons acting beyond the scope of the exemptions.
  3. The board may adopt reasonable rules modifying the exemptions in this section in accordance with rules adopted by the federal bureau of consumer financial protection or the United States department of housing and urban development.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 696, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-904 as it existed prior to 2019.

12-10-710. Originator’s relationship to borrower - rules.

  1. A mortgage loan originator shall have a duty of good faith and fair dealing in all communications and transactions with a borrower. The duty includes, but is not limited to:
    1. The duty to not recommend or induce the borrower to enter into a transaction that does not have a reasonable, tangible net benefit to the borrower, considering all of the circumstances, including the terms of a loan, the cost of a loan, and the borrower’s circumstances;
    2. The duty to make a reasonable inquiry concerning the borrower’s current and prospective income, existing debts and other obligations, and any other relevant information and, after making the inquiry, to make his or her best efforts to recommend, broker, or originate a residential mortgage loan that takes into consideration the information submitted by the borrower, but the mortgage loan originator shall not be deemed to violate this section if the borrower conceals or misrepresents relevant information; and
    3. The duty not to commit any acts, practices, or omissions in violation of section 38-40-105.
  2. For purposes of implementing subsection (1) of this section, the board may adopt rules defining what constitutes a reasonable, tangible net benefit to the borrower.
  3. A violation of this section constitutes a deceptive trade practice under the “Colorado Consumer Protection Act”, article 1 of title 6.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 698, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-904.5 as it existed prior to 2019.

12-10-711. Powers and duties of the board - rules.

  1. The board may deny an application for a license, refuse to renew, or revoke the license of an applicant or licensee who has:
    1. Filed an application with the board containing material misstatements of fact or omitted any disclosure required by this part 7;
    2. Within the last five years, been convicted of or pled guilty or nolo contendere to a crime involving fraud, deceit, material misrepresentation, theft, or the breach of a fiduciary duty, except as otherwise set forth in this part 7;
    3. Except as otherwise set forth in this part 7, within the last five years, had a license, registration, or certification issued by Colorado or another state revoked or suspended for fraud, deceit, material misrepresentation, theft, or the breach of a fiduciary duty, and the discipline denied the person authorization to practice as:
      1. A mortgage broker or a mortgage loan originator;
      2. A real estate broker, as defined by section 12-10-201 (6);
      3. A real estate salesperson;
      4. A real estate appraiser, as defined by section 12-10-602 (9);
      5. An insurance producer, as defined by section 10-2-103 (6);
      6. An attorney;
      7. A securities broker-dealer, as defined by section 11-51-201 (2);
      8. A securities sales representative, as defined by section 11-51-201 (14);
      9. An investment advisor, as defined by section 11-51-201 (9.5); or
      10. An investment advisor representative, as defined by section 11-51-201 (9.6);
    4. Been enjoined within the immediately preceding five years under the laws of this or any other state or of the United States from engaging in deceptive conduct relating to the brokering of or originating a mortgage loan;
    5. Been found to have violated the provisions of section 12-10-721;
    6. Been found to have violated the provisions of section 12-10-713;
    7. Not demonstrated financial responsibility, character, and general fitness to command the confidence of the community and to warrant a determination that the individual will operate honestly, fairly, and efficiently, consistent with the purposes of this part 7;
    8. Not completed the prelicense education requirements set forth in section 12-10-704 and any applicable rules of the board; or
    9. Not passed a written examination that meets the requirements set forth in section 12-10-704 and any applicable rules of the board.
  2. The board shall deny an application for a license, refuse to renew, or revoke the license of an applicant or licensee who has:
      1. Had a mortgage loan originator license or similar license revoked in any jurisdiction.
      2. If a revocation is subsequently formally nullified, the license is not revoked for purposes of this subsection (2)(a).
      1. At any time been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign, or military court if the felony involved an act of fraud, dishonesty, breach of trust, or money laundering.
      2. If the individual obtains a pardon of the conviction, the board shall not deem the individual convicted for purposes of this subsection (2)(b).
    1. Been convicted of, or pled guilty or nolo contendere to, a felony within the immediately preceding seven years.
  3. The board may investigate the activities of a licensee or other person that present grounds for disciplinary action under this part 7 or that violate section 12-10-720 (1).
    1. If the board has reasonable grounds to believe that a mortgage loan originator is no longer qualified under subsection (1) of this section, the board may summarily suspend the mortgage loan originator’s license pending a hearing to revoke the license. A summary suspension shall conform to article 4 of title 24.
    2. The board shall suspend the license of a mortgage loan originator who fails to maintain the bond required by section 12-10-717 until the licensee complies with that section.
  4. The board or an administrative law judge appointed pursuant to part 10 of article 30 of title 24 shall conduct disciplinary hearings concerning mortgage loan originators and mortgage companies. The hearings shall conform to article 4 of title 24.
    1. Except as provided in subsection (6)(b) of this section, an individual whose license has been revoked shall not be eligible for licensure for two years after the effective date of the revocation.
    2. If the board or an administrative law judge determines that an application contained a misstatement of fact or omitted a required disclosure due to an unintentional error, the board shall allow the applicant to correct the application. Upon receipt of the corrected and completed application, the board or administrative law judge shall not bar the applicant from being licensed on the basis of the unintentional misstatement or omission.
    1. The board or an administrative law judge may administer oaths, take affirmations of witnesses, and issue subpoenas to compel the attendance of witnesses and the production of all relevant papers, books, records, documentary evidence, and materials in any hearing or investigation conducted by the board or an administrative law judge. The board may request any information relevant to the investigation, including, but not limited to, independent credit reports obtained from a consumer reporting agency described in the federal “Fair Credit Reporting Act”, 15 U.S.C. sec. 1681a (p).
    2. Upon failure of a witness to comply with a subpoena or process, the district court of the county in which the subpoenaed witness resides or conducts business may issue an order requiring the witness to appear before the board or administrative law judge; produce the relevant papers, books, records, documentary evidence, testimony, or materials in question; or both. Failure to obey the order of the court may be punished as a contempt of court. The board or an administrative law judge may apply for an order.
    3. The licensee or individual who, after an investigation under this part 7, is found to be in violation of a provision of this part 7 shall be responsible for paying all reasonable and necessary costs of the division arising from subpoenas or requests issued pursuant to this subsection (7), including court costs for an action brought pursuant to subsection (7)(b) of this section.
    1. If the board has reasonable cause to believe that an individual is violating this part 7, including but not limited to section 12-10-720 (1), the board may enter an order requiring the individual to cease and desist the violations.
    2. The board, upon its own motion, may, and, upon the complaint in writing of any person, shall, investigate the activities of any licensee or any individual who assumes to act in such capacity within the state. In addition to any other penalty that may be imposed pursuant to this part 7, any individual violating any provision of this part 7 or any rules promulgated pursuant to this article 10 may be fined upon a finding of misconduct by the board as follows:
      1. In the first administrative proceeding, a fine not in excess of one thousand dollars per act or occurrence;
      2. In a second or subsequent administrative proceeding, a fine not less than one thousand dollars nor in excess of two thousand dollars per act or occurrence.
    3. All fines collected pursuant to this subsection (8) shall be transferred to the state treasurer, who shall credit them to the division of real estate cash fund created in section 12-10-215.
  5. The board shall keep records of the individuals licensed as mortgage loan originators and of disciplinary proceedings. The records kept by the board shall be open to public inspection in a reasonable time and manner determined by the board.
  6. The board shall maintain a system, which may include, without limitation, a hotline or website, that gives consumers a reasonably easy method for making complaints about a mortgage loan originator.
  7. The board shall promulgate rules to allow licensed mortgage loan originators to hire unlicensed mortgage loan originators under temporary licenses. If an unlicensed mortgage loan originator has initiated the application process for a license, he or she shall be assigned a temporary license for a reasonable period until a license is approved or denied. The licensed mortgage loan originator who employs an unlicensed mortgage loan originator shall be held responsible under all applicable provisions of law, including without limitation this part 7 and section 38-40-105, for the actions of the unlicensed mortgage loan originator to whom a temporary license has been assigned under this subsection (11).

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 698, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-905 as it existed prior to 2019.

12-10-712. Powers and duties of the board over mortgage companies - fines - rules.

  1. With respect to mortgage companies, the board may deny an application for registration; refuse to renew, suspend, or revoke the registration; enter cease-and-desist orders; and impose fines as set forth in this section as follows:
    1. If the board has reasonable cause to believe a person is acting without a license or registration;
    2. If the mortgage company fails to maintain possession, for future use or inspection by an authorized representative of the board, for a period of four years, of the documents or records prescribed by the rules of the board or to produce the documents or records upon reasonable request by the board or by an authorized representative of the board;
    3. If the mortgage company employs or contracts with individuals who are required to be licensed pursuant to this part 7 and who are not either:
      1. Licensed; or
      2. In the process of becoming licensed; or
    4. If the mortgage company directs, makes, or causes to be made, in any manner, a false or deceptive statement or representation with regard to the rates, points, or other financing terms or conditions for a residential mortgage loan; engages in bait and switch advertising as that term is used in section 6-1-105 (1)(n); or violates any rule of the board that directly or indirectly addresses advertising requirements.
    1. The board, upon its own motion or upon the complaint in writing of any person, may investigate the activities of any registered mortgage company or any mortgage company that is acting in a capacity that requires registration pursuant to this part 7.
    2. The board may fine a mortgage company that has violated this section or any rules promulgated pursuant to this section as follows:
      1. In the first administrative proceeding, a fine not in excess of one thousand dollars per act or occurrence;
      2. In a second or subsequent administrative proceeding, a fine not in excess of two thousand dollars per act or occurrence.
    3. All fines collected pursuant to this section shall be transmitted to the state treasurer, who shall credit them to the division of real estate cash fund created in section 12-10-215.
  2. The board may adopt reasonable rules for implementing this section.
  3. Nothing in this section automatically imputes a violation to the mortgage company if a licensed agent or employee, or an individual agent or employee who is required to be licensed, violates any other provision of this part 7.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 702, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-905.1 as it existed prior to 2019.

12-10-713. Disciplinary actions - grounds - procedures - rules.

  1. The board, upon its own motion, may, or upon the complaint in writing of any person, shall, investigate the activities of any mortgage loan originator. The board has the power to impose an administrative fine in accordance with section 12-10-711, deny a license, censure a licensee, place the licensee on probation and set the terms of probation, order restitution, order the payment of actual damages, or suspend or revoke a license when the board finds that the licensee or applicant has performed, is performing, or is attempting to perform any of the following acts:
    1. Knowingly making any misrepresentation or knowingly making use of any false or misleading advertising;
    2. Making any promise that influences, persuades, or induces another person to detrimentally rely on the promise when the licensee could not or did not intend to keep the promise;
    3. Knowingly misrepresenting or making false promises through agents, salespersons, advertising, or otherwise;
    4. Violating any provision of the “Colorado Consumer Protection Act”, article 1 of title 6, and, if the licensee has been assessed a civil or criminal penalty or been subject to an injunction under the act, the board shall revoke the licensee’s license;
    5. Acting for more than one party in a transaction without disclosing any actual or potential conflict of interest or without disclosing to all parties any fiduciary obligation or other legal obligation of the mortgage loan originator to any party;
    6. Representing or attempting to represent a mortgage loan originator other than the licensee’s principal or employer without the express knowledge and consent of that principal or employer;
    7. In the case of a licensee in the employ of another mortgage loan originator, failing to place, as soon after receipt as is practicably possible, in the custody of that licensed mortgage loan originator-employer any deposit money or other money or fund entrusted to the employee by any person dealing with the employee as the representative of that licensed mortgage loan originator-employer;
    8. Failing to account for or to remit, within a reasonable time, any money coming into his or her possession that belongs to others, whether acting as a mortgage loan originator, real estate broker, salesperson, or otherwise, and failing to keep records relative to the money, which records shall contain such information as may be prescribed by the rules of the board relative thereto and shall be subject to audit by the board;
    9. Converting funds of others, diverting funds of others without proper authorization, commingling funds of others with the licensee’s own funds, or failing to keep the funds of others in an escrow or a trustee account with a bank or recognized depository in this state, which account may be any type of checking, demand, passbook, or statement account insured by an agency of the United States government, and to keep records relative to the deposit that contain such information as may be prescribed by the rules of the board relative thereto, which records shall be subject to audit by the board;
    10. Failing to provide the parties to a residential mortgage loan transaction with such information as may be prescribed by the rules of the board;
    11. Unless an employee of a duly registered mortgage company, failing to maintain possession, for future use or inspection by an authorized representative of the board, for a period of four years, of the documents or records prescribed by the rules of the board or to produce the documents or records upon reasonable request by the board or by an authorized representative of the board;
    12. Paying a commission or valuable consideration for performing any of the functions of a mortgage loan originator, as described in this part 7, to any person who is not licensed under this part 7 or is not registered in compliance with the federal “Secure and Fair Enforcement for Mortgage Licensing Act of 2008”, 12 U.S.C. sec. 5101 et seq., as amended;
    13. Disregarding or violating any provision of this part 7 or any rule adopted by the board pursuant to this part 7; violating any lawful orders of the board; or aiding and abetting a violation of any rule, order of the board, or provision of this part 7;
    14. Conviction of, entering a plea of guilty to, or entering a plea of nolo contendere to any crime in article 3 of title 18, parts 1 to 4 of article 4 of title 18, article 5 of title 18, part 3 of article 8 of title 18, article 15 of title 18, article 17 of title 18, or any other like crime under Colorado law, federal law, or the laws of other states. A certified copy of the judgment of a court of competent jurisdiction of a conviction or other official record indicating that a plea was entered shall be conclusive evidence of the conviction or plea in any hearing under this part 7.
    15. Violating or aiding and abetting in the violation of the Colorado or federal fair housing laws;
    16. Failing to immediately notify the board in writing of a conviction, plea, or violation pursuant to subsection (1)(n) or (1)(o) of this section;
    17. Having demonstrated unworthiness or incompetency to act as a mortgage loan originator by conducting business in such a manner as to endanger the interest of the public;
    18. Procuring, or attempting to procure, a mortgage loan originator’s license or renewing, reinstating, or reactivating, or attempting to renew, reinstate, or reactivate, a mortgage loan originator’s license by fraud, misrepresentation, or deceit or by making a material misstatement of fact in an application for the license;
    19. Claiming, arranging for, or taking any secret or undisclosed amount of compensation, commission, or profit or failing to reveal to the licensee’s principal or employer the full amount of the licensee’s compensation, commission, or profit in connection with any acts for which a license is required under this part 7;
    20. Exercising an option to purchase in any agreement authorizing or employing a licensee to sell, buy, or exchange real estate for compensation or commission except when the licensee, prior to or coincident with election to exercise the option to purchase, reveals in writing to the licensee’s principal or employer the full amount of the licensee’s profit and obtains the written consent of the principal or employer approving the amount of the profit;
    21. Fraud, misrepresentation, deceit, or conversion of trust funds that results in the payment of any claim pursuant to this part 7 or that results in the entry of a civil judgment for damages;
    22. Any other conduct, whether of the same or a different character than specified in this subsection (1), that evinces a lack of good faith and fair dealing;
    23. Having had a mortgage loan originator’s license suspended or revoked in any jurisdiction or having had any disciplinary action taken against the mortgage loan originator in any other jurisdiction. A certified copy of the order of disciplinary action shall be prima facie evidence of the disciplinary action.
    24. Engaging in any unfair or deceptive practice toward any person;
    25. Obtaining property by fraud or misrepresentation;
    26. Soliciting or entering into a contract with a borrower that provides, in substance, that the mortgage loan originator may earn a fee or commission through the mortgage loan originator’s best efforts to obtain a loan even though no loan is actually obtained for the borrower;
    27. Soliciting, advertising, or entering into a contract for specific interest rates, points, or other financing terms unless the terms are actually available at the time of the solicitation, advertisement, or contract;
    28. Failing to make a disclosure to a loan applicant or a noninstitutional investor as required by section 12-10-725 and any other applicable state or federal law;
    29. Making, in any manner, any false or deceptive statement or representation with regard to the rates, points, or other financing terms or conditions for a residential mortgage loan or engaging in bait and switch advertising;
    30. Negligently making any false statement or knowingly and willfully omitting a material fact in connection with any reports filed by a mortgage loan originator or in connection with any investigation conducted by the division;
    31. In any advertising of residential mortgage loans or any other applicable mortgage loan originator activities covered by the following federal acts, failing to comply with any requirement of the “Truth in Lending Act”, 15 U.S.C. sec. 1601 and Regulation Z, 12 CFR 226 and 12 CFR 1026; the “Real Estate Settlement Procedures Act of 1974”, 12 U.S.C. sec. 2601 and Regulation X, 12 CFR 1024 et seq.; the “Equal Credit Opportunity Act”, 15 U.S.C. sec. 1691 and Regulation B, 12 CFR 202.9, 202.11, and 202.12 and 12 CFR 1002; Title V, Subtitle A of the “Financial Services Modernization Act of 1999”, also known as the “Gramm-Leach-Bliley Act”, 15 U.S.C. secs. 6801 to 6809, and the federal trade commission’s privacy rules, 16 CFR 313 and 314, mandated by the “Gramm-Leach-Bliley Act”; the “Home Mortgage Disclosure Act of 1975”, 12 U.S.C. sec. 2801 et seq. and Regulation C, home mortgage disclosure, 12 CFR 203 and 12 CFR 1003; the “Federal Trade Commission Act” of 1914, 15 U.S.C. sec. 45 (a) and 16 CFR 233; and the “Telemarketing and Consumer Fraud and Abuse Prevention Act”, 15 U.S.C. secs. 6101 to 6108, and the federal trade commission’s telemarketing sales rule, 16 CFR 310, as amended. The board may adopt rules requiring mortgage loan originators to comply with other applicable state and federal statutes and regulations.
    32. Failing to pay a third-party provider, no later than thirty days after the recording of the loan closing documents or ninety days after completion of the third-party service, whichever comes first, unless otherwise agreed or unless the third-party service provider has been notified in writing that a bona fide dispute exists regarding the performance or quality of the third-party service; or
    33. Collecting, charging, attempting to collect or charge, or using or proposing any agreement purporting to collect or charge any fee prohibited by section 12-10-725 or 12-10-726.
  2. Upon request of the board, when any mortgage loan originator is a party to any suit or proceeding, either civil or criminal, arising out of any transaction involving a residential mortgage loan and the mortgage loan originator participated in the transaction in his or her capacity as a licensed mortgage loan originator, the mortgage loan originator shall supply to the board a copy of the complaint, indictment, information, or other initiating pleading and the answer filed, if any, and advise the board of the disposition of the case and of the nature and amount of any judgment, verdict, finding, or sentence that may be made, entered, or imposed therein.
  3. This part 7 shall not be construed to relieve any person from civil liability or criminal prosecution under the laws of this state.
  4. Complaints of record in the office of the board and board investigations, including board investigative files, are closed to public inspection. Stipulations and final agency orders are public record and subject to sections 24-72-203 and 24-72-204.
  5. When a complaint or an investigation discloses an instance of misconduct that, in the opinion of the board, does not warrant formal action by the board but that should not be dismissed as being without merit, the board may send a letter of admonition by certified mail, return receipt requested, to the licensee against whom a complaint was made and a copy of the letter of admonition to the person making the complaint, but the letter shall advise the licensee that the licensee has the right to request in writing, within twenty days after proven receipt, that formal disciplinary proceedings be initiated to adjudicate the propriety of the conduct upon which the letter of admonition is based. If the request is timely made, the letter of admonition shall be deemed vacated, and the matter shall be processed by means of formal disciplinary proceedings.
  6. All administrative fines collected pursuant to this section shall be transmitted to the state treasurer, who shall credit them to the division of real estate cash fund created in section 12-10-215.
    1. The board shall not consider an application for licensure from an individual whose license has been revoked until two years after the date of revocation.
    2. If an individual’s license was suspended or revoked due to conduct that resulted in financial loss to another person, no new license shall be granted, nor shall a suspended license be reinstated, until full restitution has been made to the person suffering the financial loss. The amount of restitution shall include interest, reasonable attorney fees, and costs of any suit or other proceeding undertaken in an effort to recover the loss.
  7. When the board or the division becomes aware of facts or circumstances that fall within the jurisdiction of a criminal justice or other law enforcement authority upon investigation of the activities of a licensee, the board or division shall, in addition to the exercise of its authority under this part 7, refer and transmit the information, which may include originals or copies of documents and materials, to one or more criminal justice or other law enforcement authorities for investigation and prosecution as authorized by law.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 703, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-905.5 as it existed prior to 2019.

12-10-714. Hearing - administrative law judge - review - rules.

  1. Except as otherwise provided in this section, all proceedings before the board with respect to disciplinary actions and denial of licensure under this part 7, at the discretion of the board, may be conducted by an authorized representative of the board or an administrative law judge pursuant to sections 24-4-104 and 24-4-105.
  2. Proceedings shall be held in the county where the board has its office or in such other place as the board may designate. If the licensee is employed by another licensed mortgage loan originator or by a real estate broker, the board shall also notify the licensee’s employer by mailing, by first-class mail, a copy of the written notice required under section 24-4-104 (3) to the employer’s last-known business address.
  3. The board, an authorized representative of the board, or an administrative law judge shall conduct all hearings for denying, suspending, or revoking a license or certificate on behalf of the board, subject to appropriations made to the department of personnel. Each administrative law judge shall be appointed pursuant to part 10 of article 30 of title 24. The administrative law judge shall conduct the hearing in accordance with sections 24-4-104 and 24-4-105. No license shall be denied, suspended, or revoked until the board has made its decision.
  4. The decision of the board in any disciplinary action or denial of licensure under this section is subject to judicial review by the court of appeals. In order to effectuate the purposes of this part 7, the board has the power to promulgate rules pursuant to article 4 of title 24.
  5. In a judicial review proceeding, the court may stay the execution or effect of any final order of the board; but a hearing shall be held affording the parties an opportunity to be heard for the purpose of determining whether the public health, safety, and welfare would be endangered by staying the board’s order. If the court determines that the order should be stayed, it shall also determine at the hearing the amount of the bond and adequacy of the surety, which bond shall be conditioned upon the faithful performance by the petitioner of all obligations as a mortgage loan originator and upon the prompt payment of all damages arising from or caused by the delay in the taking effect of or enforcement of the order complained of and for all costs that may be assessed or required to be paid in connection with the proceedings.
  6. In any hearing conducted by the board or an authorized representative of the board in which there is a possibility of the denial, suspension, or revocation of a license because of the conviction of a felony or of a crime involving moral turpitude, the board or its authorized representative shall be governed by section 24-5-101.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 707, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-905.6 as it existed prior to 2019.

12-10-715. Subpoena - misdemeanor.

  1. The board or the administrative law judge appointed for hearings may issue subpoenas, as described in section 12-10-711 (7), which shall be served in the same manner as subpoenas issued by district courts and shall be issued without discrimination between public or private parties requiring the attendance of witnesses or the production of documents at hearings.
  2. [Editor’s note: This version of subsection (2) is effective until March 1, 2022.]  Any person who willfully fails or neglects to appear and testify or to produce books, papers, or records required by subpoena, duly served upon him or her in any matter conducted under this part 7, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars or imprisonment in the county jail for not more than thirty days for each such offense, or by both such fine and imprisonment. Each day a person so refuses or neglects constitutes a separate offense.

    (2) [ Editor’s note: This version of subsection (2) is effective March 1, 2022. ] Any person who willfully fails or neglects to appear and testify or to produce books, papers, or records required by subpoena, duly served upon him or her in any matter conducted under this part 7 commits a petty offense. Each day a person so refuses or neglects constitutes a separate offense.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 708, § 1, effective October 1. L. 2021: (2) amended,(SB 21-271), ch. 462, p. 3154, § 138, effective March 1, 2022.

Editor’s note: (1) This section is similar to former § 12-61-905.7 as it existed prior to 2019.

(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.

12-10-716. Immunity.

A person participating in good faith in the filing of a complaint or report or participating in an investigation or hearing before the board or an administrative law judge pursuant to this part 7 shall be immune from any liability, civil or criminal, that otherwise might result by reason of the action.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 708, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-906 as it existed prior to 2019.

12-10-717. Bond required - rules.

  1. Before receiving a license, an applicant shall post with the board a surety bond in an amount prescribed by the board by rule. A licensed mortgage loan originator shall maintain the required bond at all times. The surety bond may be held by the individual mortgage loan originator or may be in the name of the company by which the mortgage loan originator is employed. The board may adopt rules to further define surety bond requirements.
  2. The surety shall not be required to pay a person making a claim upon the bond until a final determination of fraud, forgery, criminal impersonation, or fraudulent representation has been made by a court with jurisdiction.
  3. The surety bond shall require the surety to provide notice to the board within thirty days if payment is made from the surety bond or if the bond is canceled.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 709, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-907 as it existed prior to 2019.

12-10-718. Fees.

The board may set the fees for issuance and renewal of licenses and registrations under this part 7. The fees shall be set in amounts that offset the direct and indirect costs of implementing this part 7 and section 38-40-105. The money collected pursuant to this section shall be transferred to the state treasurer, who shall credit it to the division of real estate cash fund created in section 12-10-215.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 709, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-908 as it existed prior to 2019.

12-10-719. Attorney general - district attorney - jurisdiction.

The attorney general shall have concurrent jurisdiction with the district attorneys of this state to investigate and prosecute allegations of criminal violations of this part 7.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 709, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-909 as it existed prior to 2019.

12-10-720. Violations - injunctions.

    1. [Editor’s note: This version of subsection (1)(a) is effective until March 1, 2022.]  Any individual violating this part 7 by acting as a mortgage loan originator in this state without having obtained a license or by acting as a mortgage loan originator after that individual’s license has been revoked or during any period for which the license may have been suspended is guilty of a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501; except that, if the violator is not a natural person, the violator shall be punished by a fine of not more than five thousand dollars.

      (a) [ Editor’s note: This version of subsection (1)(a) is effective March 1, 2022. ] Any individual violating this part 7 by acting as a mortgage loan originator in this state without having obtained a license or by acting as a mortgage loan originator after that individual’s license has been revoked or during any period for which the license may have been suspended commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501; except that, if the violator is not a natural person, the violator shall be punished by a fine of not more than five thousand dollars.

    2. Each residential mortgage loan negotiated or offered to be negotiated by an unlicensed person shall be a separate violation of this subsection (1).
  1. The board may request that an action be brought in the name of the people of the state of Colorado by the attorney general or the district attorney of the district in which the violation is alleged to have occurred to enjoin a person from engaging in or continuing the violation or from doing any act that furthers the violation. In such an action, an order or judgment may be entered awarding the preliminary or final injunction as is deemed proper by the court. The notice, hearing, or duration of an injunction or restraining order shall be made in accordance with the Colorado rules of civil procedure.
  2. A violation of this part 7 shall not affect the validity or enforceability of any mortgage.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 709, § 1, effective October 1. L. 2021: (1)(a) amended,(SB 21-271), ch. 462, p. 3154, § 139, effective March 1, 2022.

Editor’s note: (1) This section is similar to former § 12-61-910 as it existed prior to 2019.

(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.

12-10-721. Prohibited conduct - influencing a real estate appraisal.

  1. A mortgage loan originator shall not, directly or indirectly, compensate, coerce, or intimidate an appraiser, or attempt, directly or indirectly, to compensate, coerce, or intimidate an appraiser, for the purpose of influencing the independent judgment of the appraiser with respect to the value of a dwelling offered as security for repayment of a residential mortgage loan. This prohibition shall not be construed as prohibiting a mortgage loan originator from requesting an appraiser to:
    1. Consider additional, appropriate property information;
    2. Provide further detail, substantiation, or explanation for the appraiser’s value conclusion; or
    3. Correct errors in the appraisal report.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 710, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-910.2 as it existed prior to 2019.

12-10-722. Rule-making authority.

The board has the authority to promulgate rules as necessary to enable the board to carry out the board’s duties under this part 7.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 710, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-910.3 as it existed prior to 2019.

12-10-723. Acts of employee - mortgage loan originator’s liability.

An unlawful act or violation of this part 7 upon the part of an agent or employee of a licensed mortgage loan originator shall not be cause for disciplinary action against a mortgage loan originator unless it appears that the mortgage loan originator knew or should have known of the unlawful act or violation or had been negligent in the supervision of the agent or employee.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 710, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-911.5 as it existed prior to 2019.

12-10-724. Dual status as real estate broker - requirements.

  1. Unless a mortgage loan originator complies with both subsections (2) and (3) of this section, he or she shall not act as a mortgage loan originator in any transaction in which:
    1. The mortgage loan originator acts or has acted as a real estate broker or salesperson; or
    2. Another person doing business under the same licensed real estate broker acts or has acted as a real estate broker or salesperson.
  2. Before providing mortgage-related services to the borrower, a mortgage loan originator shall make a full and fair disclosure to the borrower, in addition to any other disclosures required by this part 7 or other laws, of all material features of the loan product and all facts material to the transaction.
    1. A real estate broker or salesperson licensed under part 2 of this article 10 who also acts as a mortgage loan originator shall carry on the mortgage loan originator business activities and shall maintain the person’s mortgage loan originator business records separate and apart from the real estate broker or sales activities conducted pursuant to part 2 of this article 10. The activities shall be deemed separate and apart even if they are conducted at an office location with a common entrance and mailing address if:
      1. Each business is clearly identified by a sign visible to the public;
      2. Each business is physically separated within the office facility; and
      3. No deception of the public as to the separate identities of the broker business firms results.
    2. This subsection (3) shall not require a real estate broker or salesperson licensed under part 2 of this article 10 who also acts as a mortgage loan originator to maintain a physical separation within the office facility for the conduct of its real estate broker or sales and mortgage loan originator activities if the board determines that maintaining the physical separation would constitute an undue financial hardship upon the mortgage loan originator and is unnecessary for the protection of the public.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 710, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-912 as it existed prior to 2019.

12-10-725. Written disclosure of fees and costs - contents - limits on fees - rules.

  1. A mortgage loan originator’s disclosures must comply with all applicable requirements of:
    1. The federal “Truth in Lending Act”, 15 U.S.C. sec. 1601 et seq., and Regulation Z, 12 CFR 226 and 12 CFR 1026;
    2. The federal “Real Estate Settlement Procedures Act of 1974”, 12 U.S.C. sec. 2601 et seq., and Regulation X, 12 CFR 1024 et seq.;
    3. The federal “Equal Credit Opportunity Act”, 15 U.S.C. sec. 1691 and Regulation B, 12 CFR 202.9, 202.11, and 202.12 and 12 CFR 1002;
    4. Title V, Subtitle A of the federal “Financial Services Modernization Act of 1999”, also known as the “Gramm-Leach-Bliley Act”, 15 U.S.C. secs. 6801 to 6809, and the federal trade commission’s privacy rules, 16 CFR 313 and 314, adopted in accordance with the federal “Gramm-Leach-Bliley Act”;
    5. The federal “Home Mortgage Disclosure Act of 1975”, 12 U.S.C. sec. 2801 et seq., and Regulation C, 12 CFR 203 and 12 CFR 1003, pertaining to home mortgage disclosure;
    6. The “Federal Trade Commission Act” of 1914, 15 U.S.C. sec. 45 (a), and 16 CFR 233;
    7. The federal “Telemarketing and Consumer Fraud and Abuse Prevention Act”, 15 U.S.C. secs. 6101 to 6108, and the federal trade commission’s telemarketing sales rule, 16 CFR 310.
  2. The board may, by rule, require mortgage loan originators to comply with other mortgage loan disclosure requirements contained in applicable statutes and regulations in connection with making any residential mortgage loan or engaging in other activity subject to this part 7.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 711, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-914 as it existed prior to 2019.

12-10-726. Fee, commission, or compensation - when permitted - amount.

  1. Except as otherwise permitted by subsection (2) or (3) of this section, a mortgage loan originator shall not receive a fee, commission, or compensation of any kind in connection with the preparation or negotiation of a residential mortgage loan unless a borrower actually obtains a loan from a lender on the terms and conditions agreed to by the borrower and mortgage loan originator.
  2. If the mortgage loan originator has obtained for the borrower a written commitment from a lender for a loan on the terms and conditions agreed to by the borrower and the mortgage loan originator, and the borrower fails to close on the loan through no fault of the mortgage loan originator, the mortgage loan originator may charge a fee, not to exceed three hundred dollars, for services rendered, preparation of documents, or transfer of documents in the borrower’s file that were prepared or paid for by the borrower if the fee is not otherwise prohibited by the federal “Truth in Lending Act”, 15 U.S.C. sec. 1601, and Regulation Z, 12 CFR 226, as amended.
  3. A mortgage loan originator may solicit or receive fees for third-party provider goods or services in advance. Fees for any goods or services not provided shall be refunded to the borrower, and the mortgage loan originator may not charge more for the goods and services than the actual costs of the goods or services charged by the third-party provider.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 712, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-915 as it existed prior to 2019.

12-10-727. Confidentiality.

  1. Except as otherwise provided in the federal “Secure and Fair Enforcement for Mortgage Licensing Act of 2008”, 12 U.S.C. sec. 5111, the requirements under any federal law or law of this state regarding privacy or confidentiality of any information or material provided to the nationwide mortgage licensing system and registry, and any privilege arising under federal or state law, including the rules of any federal or state court with respect to the information or material, shall apply to the information or material after it has been disclosed to the nationwide mortgage licensing system and registry. The information or material may be shared with all state and federal regulatory officials with mortgage industry oversight authority without the loss of privilege or confidentiality protections provided by federal or state law.
  2. The board may enter into agreements with other government agencies, the Conference of State Bank Supervisors or its successor organization, the American Association of Residential Mortgage Regulators or its successor organization, or other associations representing government agencies as established by rule.
  3. Information or material that is subject to privilege or confidentiality pursuant to subsection (1) of this section shall not be subject to the following:
    1. Disclosure under a federal or state law governing the disclosure to the public of information held by an officer or agency of the federal government or the respective state; or
    2. Subpoena, discovery, or admission into evidence in any private civil action or administrative process, unless with respect to a privilege held by the nationwide mortgage licensing system and registry regarding the information or material, the person to whom the information or material pertains waives the privilege, in whole or in part.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 712, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-916 as it existed prior to 2019.

12-10-728. Mortgage call reports - reports of violations.

  1. The board may require each licensee or registrant to submit to the nationwide mortgage licensing system and registry mortgage call reports, which shall be in the form and contain the information required by the nationwide mortgage licensing system and registry.
  2. The board may report violations of this part 7, enforcement actions, and other relevant information to the nationwide mortgage licensing system and registry.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 713, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-917 as it existed prior to 2019.

12-10-729. Unique identifier - clearly displayed.

Each person required to be licensed or registered shall show his or her or the entity’s unique identifier clearly on all residential mortgage loan application forms and any other documents as specified by the board by rule or order.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 713, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-918 as it existed prior to 2019.

12-10-730. Repeal of part - subject to review.

  1. This part 7 is repealed, effective September 1, 2029.
  2. Before the repeal, the licensing of mortgage loan originators and the registration of mortgage companies is scheduled for review in accordance with section 24-34-104. The department shall include in its review of mortgage loan originators and mortgage companies an analysis of the number and types of complaints made about mortgage loan originators and mortgage companies and whether the licensing of mortgage loan originators and the registration of mortgage companies correlates with public protection from fraudulent activities in the residential mortgage loan industry.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 713, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-919 as it existed prior to 2019.

Part 8. Hoa Information and Resource Center

12-10-801. HOA information and resource center - creation - duties - rules - subject to review - repeal.

  1. There is hereby created, within the division, the HOA information and resource center, the head of which shall be the HOA information officer. The HOA information officer shall be appointed by the executive director pursuant to section 13 of article XII of the state constitution.
  2. The HOA information officer shall be familiar with the “Colorado Common Interest Ownership Act”, article 33.3 of title 38, also referred to in this section as the “act”. No person who is or, within the immediately preceding ten years, has been licensed by or registered with the division or who owns stocks, bonds, or any pecuniary interest in a corporation subject in whole or in part to regulation by the division shall be appointed as HOA information officer. In addition, in conducting the search for an appointee, the executive director shall place a high premium on candidates who are balanced, independent, unbiased, and without any current financial ties to an HOA board or board member or to any person or entity that provides HOA management services. After being appointed, the HOA information officer shall refrain from engaging in any conduct or relationship that would create a conflict of interest or the appearance of a conflict of interest.
    1. The HOA information officer shall act as a clearing house for information concerning the basic rights and duties of unit owners, declarants, and unit owners’ associations under the act by:
      1. Compiling a database about registered associations, including the name; address; e-mail address, if any; website, if any; and telephone number of each;
      2. Coordinating and assisting in the preparation of educational and reference materials, including materials to assist unit owners, executive boards, board members, and association managers in understanding their rights and responsibilities with respect to:
        1. Open meetings;
        2. Proper use of executive sessions;
        3. Removal of executive board members;
        4. Unit owners’ right to speak at meetings of the executive board;
        5. Unit owners’ obligation to pay assessments and the association’s rights and responsibilities in pursuing collection of past-due amounts; and
        6. Other educational or reference materials that the HOA information officer deems necessary or appropriate;
      3. Monitoring changes in federal and state laws relating to common interest communities and providing information about the changes on the division’s website; and
      4. Providing information, including a “frequently asked questions” resource, on the division’s website.
    2. The HOA information officer may:
      1. Employ one or more assistants as may be necessary to carry out his or her duties; and
      2. Request certain records from associations as necessary to carry out the HOA information officer’s duties as set forth in this section.
    3. The HOA information officer shall track inquiries and complaints and report annually to the director regarding the number and types of inquiries and complaints received.
  3. The operating expenses of the HOA information and resource center shall be paid from the division of real estate cash fund, created in section 12-10-215, subject to annual appropriation.
  4. The director may adopt rules as necessary to implement this section and section 38-33.3-401. This subsection (5) shall not be construed to confer additional rule-making authority upon the director for any other purpose.
  5. This section is repealed, effective September 1, 2025. Before the repeal, the HOA information and resource center and the HOA information officer’s powers and duties under this section are scheduled for review in accordance with section 24-34-104.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 713, § 1, effective October 1. L. 2020: (6) amended,(HB 20-1200), ch. 188, p. 860, § 2, effective June 30.

Editor’s note: This section is similar to former § 12-61-406.5 as it existed prior to 2019.

Part 9. Home Warranty Service Contracts

12-10-901. Definitions.

As used in this part 9, unless the context otherwise requires:

  1. “Home warranty service company”, referred to in this part 9 as the “company”, means any person who undertakes a contractual obligation on a new or preowned home through a home warranty service contract.
    1. “Home warranty service contract” means any contract or agreement whereby a person undertakes for a predetermined fee, with respect to a specified period of time, to maintain, repair, or replace any or all of the following elements of a specified new or preowned home:
      1. Structural components, such as the roof, foundation, basement, walls, ceilings, or floors;
      2. Utility systems, such as electrical, air conditioning, plumbing, and heating systems, including furnaces; and
      3. Appliances, such as stoves, washers, dryers, and dishwashers.
    2. “Home warranty service contract” does not include:
      1. Any contract or agreement whereby a public utility undertakes for a predetermined fee, with respect to a specified period of time, to repair or replace any or all of the elements of a specified new or preowned home as specified in subsection (2)(a)(II) or (2)(a)(III) of this section; or
      2. A builder’s warranty provided in connection with the sale of a new home.
  2. “Person” includes an individual, company, corporation, association, agent, and every other legal entity.
  3. “Preowned” means a single-family residence, residential unit in a multiple-dwelling structure, or mobile home on a foundation that is occupied as a residence and not owned by the builder-developer or first occupant.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 715, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-602 as it existed prior to 2019.

12-10-902. Purchase of service contract not compulsory.

A company selling, offering to sell, or effecting the issuance of a home warranty service contract under this part 9 shall not in any manner require a home buyer or seller, or prospective home buyer or seller, or person refinancing a home to purchase a home warranty service contract.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 716, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-611 as it existed prior to 2019.

12-10-903. Contract requirements.

  1. Every home warranty service contract shall contain the following information:
    1. A specific listing of all items or elements excluded from coverage;
    2. A specific listing of all other limitations in coverage, including the exclusion of preexisting conditions if applicable;
    3. The procedure that is required to be followed in order to obtain repairs or replacements;
    4. A statement as to the time period, following notification to the company, within which the requested repairs will be made or replacements will be provided;
    5. The specific duration of the home warranty service contract, including an exact termination date that is not contingent upon an unspecified future closing date or other indefinite event;
    6. A statement as to whether the home warranty service contract is transferable;
    7. A statement that actions under a home warranty service contract may be covered by the provisions of the “Colorado Consumer Protection Act” or the “Unfair Practices Act”, articles 1 and 2 of title 6, and that a party to such a contract may have a right of civil action under those laws, including obtaining the recourse or penalties specified in those laws.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 716, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-611.5 as it existed prior to 2019.

12-10-904. Penalty for violation.

Any person who knowingly violates any provision of this part 9 commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501. Each instance of violation shall be considered a separate offense.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 716, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-612 as it existed prior to 2019.

12-10-905. Prohibitions.

It is unlawful for any lending institution to require the purchase of a home warranty service contract as a condition for granting financing for the purchase of the home.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 716, § 1, effective October 1. L. 2020: Entire section amended,(HB 20-1214), ch. 122, p. 519, § 3, effective June 24.

Editor’s note: This section is similar to former § 12-61-614 as it existed prior to 2019.

12-10-906. Repeal of part - subject to review.

This part 9 is repealed, effective September 1, 2026. Before the repeal, this part 9 is scheduled for review in accordance with section 24-34-104.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 716, § 1, effective October 1. L. 2020: Entire section amended,(HB 20-1214), ch. 122, p. 519, § 1, effective June 24.

Editor’s note: This section is similar to former § 12-61-615 as it existed prior to 2019.

Division of Conservation

Article 15. Division of Conservation

Editor’s note: This title 12 was repealed and reenacted, with relocations, in 2019. This article 15 was numbered as part 11 of article 61 of this title 12 prior to 2019. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated. For a detailed comparison of this title 12, see the comparative tables located in the back of the index or https://leg.colorado.gov/sites/default/files/images/olls/title-12-2019-table.pdf.

12-15-101. Legislative declaration.

  1. The general assembly finds, determines, and declares that:
    1. Colorado’s conservation easement program is an important preservation tool used to balance economic needs with natural resources such as land and water preservation. Colorado’s conservation easement tax credit and the federal tax deduction have allowed many farmers and ranchers the opportunity to donate their development rights to preserve a legacy of open spaces in Colorado for wildlife, agriculture, and ranching.
    2. Citizens throughout Colorado believe good, sound conservation practices are important to Colorado’s quality of life, agriculture, and natural heritage;
    3. Colorado’s conservation easement tax credit program was designed to give landowners an incentive to conserve and preserve their land in a predominantly natural, scenic, or open condition;
    4. Creating a division of conservation within the department of regulatory agencies will keep a firewall between professional evaluation and professional discipline, while creating a division to ensure this program allows landowners to exercise their private property rights while protecting taxpayers from the fraud and abuse that existed in the program prior to 2009;
    5. Establishing the division of conservation to administer the conservation easement tax credit program will:
      1. Allow the division to continue to certify conservation easement holders to identify fraudulent or unqualified organizations and prevent them from holding conservation easements for which tax credits are claimed in the state;
      2. Allow the conservation easement oversight commission to advise the division and the department of revenue regarding conservation easements for which a tax credit is claimed and to review applications for conservation easement holder certification;
      3. Ensure that the division and the department of revenue are sharing relevant information concerning conservation easement appraisals in order to ensure compliance with accepted appraisal practices and other provisions of law; and
      4. Ensure that the fees paid by taxpayers are adequate to pay for the administrative costs of the division and the conservation easement oversight commission in administering the requirements of this article 15, but not so high as to act as a disincentive to the creation of conservation easements in the state.
  2. Before its relocation in 2019, this section was amended in HB 19-1264. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from June 30, 2019, to October 1, 2019, see HB 19-1264, chapter 420, Session Laws of Colorado 2019.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 717, § 1, effective October 1; (1)(e)(II) and (1)(e)(III) amended and (1)(e)(IV) added,(HB 19-1264), ch. 420, p. 3681, § 12, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-1101 as it existed prior to 2019.

12-15-102. Division of conservation - creation - director.

  1. There is hereby created within the department the division of conservation, referred to in this article 15 as the “division”. The executive director is authorized by this section to employ, subject to the provisions of the state personnel system laws of the state, a director of the division, who in turn shall employ such deputies, clerks, and assistants as are necessary to discharge the duties imposed by this article 15. The division and the director of the division shall exercise their powers and perform their duties and functions under the department as if they were transferred to the department by a type 2 transfer.
  2. It is the duty of the director of the division, or his or her designee, to aid in the administration and enforcement of this article 15 and to administer, in consultation with the conservation easement oversight commission, the certification of conservation easement holders and issuance of tax credit certificates as provided in this article 15.
  3. To aid in the administration and enforcement of this article 15, the division has the authority to accept grants for and act as a holder of conservation easements in gross.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 717, § 1, effective October 1. L. 2021: (3) added,(HB 21-1233), ch. 385, p. 2577, § 1, effective June 30.

Editor’s note: This section is similar to former § 12-61-1102 as it existed prior to 2019.

12-15-103. Conservation easement oversight commission - created - repeal.

  1. There is hereby created in the division a conservation easement oversight commission, referred to in this article 15 as the “commission”. The commission shall exercise its powers and perform its duties and functions under the division as if transferred thereto by a type 2 transfer, as defined in the “Administrative Organization Act of 1968”, article 1 of title 24. The commission consists of eight members as follows:
    1. One member representing the great outdoors Colorado program, appointed by and serving as an advisory, nonvoting member at the pleasure of the state board of the great outdoors Colorado trust fund established in article XXVII of the state constitution;
    2. One voting member representing the department of natural resources, appointed by and serving at the pleasure of the executive director of the department of natural resources;
    3. One voting member representing the department of agriculture, appointed by and serving at the pleasure of the commissioner of agriculture;
    4. Three voting members appointed by the governor as follows:
      1. Two voting representatives of certified conservation easement holders; and
      2. A voting individual who is competent and qualified to analyze the conservation purpose of conservation easements; and
    5. Two voting members of the general public, one appointed by the president of the senate to serve at the pleasure of the president and one appointed by the speaker of the house of representatives to serve at the pleasure of the speaker. Appointments made pursuant to this subsection (1)(e) are for three-year terms and no member shall serve more than two consecutive terms.
  2. In making appointments to the commission, the governor shall consult with the three members of the commission appointed pursuant to subsections (1)(a) to (1)(c) of this section and with appropriate organizations representing the particular interest or area of expertise that the appointees in subsections (1)(d)(I) and (1)(d)(II) of this section represent. Not more than two of the governor’s appointees serving at the same time shall be from the same political party. In making the initial appointments, the governor shall appoint one member for a term of two years. All other appointments by the governor are for terms of three years. No member shall serve more than two consecutive terms. In the event of a vacancy by death, resignation, removal, or otherwise, the governor shall appoint a member to fill the unexpired term. The governor may remove any member for misconduct, neglect of duty, or incompetence.
    1. At the request of the division or the department of revenue, the commission shall advise the division and the department of revenue regarding conservation easements for which a state income tax credit is claimed pursuant to section 39-22-522.
    2. The commission shall review conservation easement tax credit certificate applications and requests for optional preliminary advisory opinions in accordance with section 12-15-106.
  3. The commission shall meet at least quarterly. The division shall convene the meetings of the commission and provide staff support as requested by the commission. A majority of the voting members of the commission constitutes a quorum for the transaction of all business, and actions of the commission require a vote of a majority of the voting members present in favor of the action taken. The commission may delegate to the director of the division the authority to act on behalf of the commission on occasions and in circumstances that the commission deems necessary for the efficient and effective administration and execution of the commission’s responsibilities under this article 15.
  4. The commission shall establish a conflict-of-interest policy to ensure that any member of the commission is disqualified from performing an act that conflicts with a private pecuniary interest of the member or from participating in the deliberation or decision-making process for certification for an applicant represented by the member.
  5. The commission shall advise and make recommendations to the director of the division regarding the certification of conservation easement holders in accordance with section 12-15-104.
  6. Commission members are immune from liability in accordance with the provisions of the “Colorado Governmental Immunity Act”, article 10 of title 24.
  7. This section is repealed, effective July 1, 2026.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 718, § 1, effective October 1; (8) amended,(HB 19-1264), ch. 420, p. 3681, § 13, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-1103 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1264. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from June 30, 2019, to October 1, 2019, see HB 19-1264, chapter 420, Session Laws of Colorado 2019.

12-15-104. Certification of conservation easement holders - rules - definition - repeal.

  1. The division shall, in consultation with the commission created in section 12-15-103, establish and administer a certification program for qualified organizations under section 170 (h) of the federal “Internal Revenue Code of 1986”, as amended, that hold conservation easements for which a tax credit is claimed pursuant to section 39-22-522. The purposes of the program are to:
    1. Establish minimum qualifications for certifying organizations that hold conservation easements to encourage professionalism and stability; and
    2. Identify fraudulent or unqualified applicants, as determined under the rules of the division, to prevent them from becoming certified by the program.
  2. The division shall establish and accept applications for certification. The division shall conduct a review of each application and consider the recommendations of the commission before making a final determination to grant or deny certification. In reviewing an application and in granting certification, the division and the commission may consider:
    1. The applicant’s process for reviewing, selecting, and approving a potential conservation easement;
    2. The applicant’s stewardship practices and capacity, including the ability to maintain, monitor, and defend the purposes of the easement;
    3. An audit of the applicant’s financial records;
    4. The applicant’s system of governance and ethics regarding conflicts of interest and transactions with related parties as described in section 267 (b) of the federal “Internal Revenue Code of 1986”, as amended, donors, board members, and insiders. For purposes of this subsection (2)(d), “insiders” means board and staff members, substantial contributors, parties related to those above, those who have an ability to influence decisions of the organization, and those with access to information not available to the general public.
    5. Any other information deemed relevant by the division or the commission; and
    6. The unique circumstances of the different entities to which this certification applies as set forth in subsection (4) of this section.
  3. At the time of submission of an application, and each year the entity is certified pursuant to this section, the applicant shall pay the division a fee, as prescribed by the division, to cover the costs of the division and the commission in administering the certification program for entities that hold conservation easements for which tax credits are claimed pursuant to section 39-22-522. The division shall have the authority to accept and expend gifts, grants, and donations for the purposes of this section. The state treasurer shall credit fees, gifts, grants, and donations collected pursuant to this subsection (3) to the conservation cash fund created in section 12-15-107. On or before each January 1, the division shall certify to the general assembly the amount of the fee prescribed by the division pursuant to this subsection (3).
  4. The certification program applies to:
    1. Nonprofit entities holding easements on property with conservation values consisting of recreation or education, protection of environmental systems, or preservation of open space;
    2. Nonprofit entities holding easements on property for historic preservation; and
    3. The state and any municipality, county, city and county, special district, or other political subdivision of the state that holds an easement.
  5. The certification program shall contain a provision allowing for the expedited or automatic certification of an entity that is currently accredited by national land conservation organizations that are broadly accepted by the conservation industry.
  6. The commission shall meet at least quarterly and make recommendations to the division regarding the certification program. The division is authorized to determine whether an applicant for certification possesses the necessary qualifications for certification required by the rules adopted by the division. If the division determines that an applicant does not possess the applicable qualifications for certification or that the applicant has violated any provision of this article 15, the rules promulgated by the division, or any division order, the division may deny the applicant a certification or deny the renewal of a certification, and, in such instance, the division shall provide the applicant with a statement in writing setting forth the basis of the division’s determination. The applicant may request a hearing on the determination as provided in section 24-4-104 (9). The division shall notify successful applicants in writing. An applicant that is not certified may reapply for certification in accordance with procedures established by the division.
  7. The division shall promulgate rules to effectuate the duties of the commission pursuant to article 4 of title 24. The rules shall specifically address the following:
    1. Allowing for the expedited or automatic certification of an entity that is currently accredited by national land conservation organizations that are broadly accepted by the conservation industry; and
    2. A streamlined and lower-cost process for conservation easement holders that do not intend to accept new donations of conservation easements for which tax credits would be claimed that focuses on the holder’s stewardship capabilities.
    3. (Deleted by amendment, L. 2019.)
  8. A conservation easement tax credit certificate application may be submitted pursuant to section 12-15-106 only if the entity has been certified in accordance with this section at the time the donation of the easement is made. The division shall make information available to the public concerning the date that it commences accepting applications for entities that hold conservation easements and the requirements of this subsection (8).
  9. The division shall maintain and update an online list, accessible to the public, of the organizations that have applied for certification and whether each has been certified, rejected for certification, or had its certification revoked or suspended in accordance with this section.
  10. The division may investigate the activities of any entity that is required to be certified pursuant to this section and to impose discipline for noncompliance, including the suspension or revocation of a certification or the imposition of fines. The division may promulgate rules in accordance with article 4 of title 24 for the certification program and discipline authorized by this section.
  11. The division may subpoena persons and documents, which subpoenas may be enforced by a court of competent jurisdiction if not obeyed, for purposes of conducting investigations pursuant to subsection (10) of this section.
  12. Nothing in this section:
    1. Affects any tax credit that was claimed pursuant to section 39-22-522 before certification was required by this section; or
    2. Requires the certification of an entity that holds a conservation easement for which a tax credit is not claimed pursuant to section 39-22-522.
  13. This section is repealed, effective July 1, 2026.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 719, § 1, effective October 1; (7) and (13) amended,(HB 19-1264), ch. 420, p. 3682, § 14, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-1104 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1264. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from June 30, 2019, to October 1, 2019, see HB 19-1264, chapter 420, Session Laws of Colorado 2019.

12-15-105. Conservation easement tax credit certificates - rules.

  1. The division shall receive tax credit certificate applications from and issue certificates to landowners for income tax credits for conservation easements donated on or after January 1, 2011, in accordance with section 39-22-522 (2.5) and this article 15. Nothing in this section restricts or limits the authority of the division to enforce this article 15. The division may promulgate rules in accordance with article 4 of title 24 for the issuance of the certificates. In promulgating rules, the division may include provisions governing:
    1. The review of the tax credit certificate application pursuant to this article 15;
    2. The administration and financing of the certification process;
    3. The notification to the public regarding the aggregate amount of tax credit certificates that have been issued and that are on the wait list pursuant to section 39-25-522 (2.5);
    4. The notification to the landowner, the entity to which the easement was granted, and the department of revenue regarding the tax credit certificates issued; and
    5. Any other matters related to administering section 39-22-522 (2.5) or this article 15.
  2. The division shall apply the amount claimed in a completed tax credit certificate application against the annual tax credit limit in the order that completed applications are received. The division shall apply claimed tax credit amounts that exceed the annual limit in any year against the limit for the next available year and issue tax credit certificates for use in the year in which the amount was applied to the annual limit.
  3. The division shall not issue tax credit certificates that in aggregate exceed the limit set forth in section 39-22-522 (2.5) during a particular calendar year.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 722, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-1105 as it existed prior to 2019.

12-15-106. Conservation easement tax credit certificate application process - definitions - rules.

  1. For purposes of this section:
    1. “Application” means an application for a tax credit certificate submitted pursuant to section 12-15-105 or this section.
    2. “Conservation purpose” means conservation purpose as defined in section 170 (h) of the federal “Internal Revenue Code of 1986”, as amended, and any federal regulations promulgated in connection with that section.
    3. “Credibility” means the results are worthy of belief and are supported by relevant evidence and logic to the degree necessary for the intended use.
    4. “Deficiency” means noncompliance with a requirement for obtaining a tax credit certificate that, unless the noncompliance is remedied, is grounds for the denial of a tax credit certificate application submitted pursuant to this section.
    5. “Director” means the director of the division of conservation or his or her designee.
    6. “Landowner” means the record owner of the surface of the land and, if applicable, owner of the water or water rights beneficially used thereon who creates a conservation easement in gross pursuant to section 38-30.5-104.
    7. “Tax credit certificate” means the conservation easement tax credit certificate issued pursuant to section 12-15-105 and this section.
    1. The division shall establish and administer a process by which a landowner seeking to claim an income tax credit for any conservation easement donation made on or after January 1, 2014, must apply for a tax credit certificate as required by section 39-22-522 (2.5) and (2.7). The purpose of the application process is to determine whether a conservation easement donation for which a tax credit will be claimed:
      1. Is a contribution of a qualified real property interest to a qualified organization to be used exclusively for a conservation purpose;
      2. Is substantiated with a qualified appraisal prepared by a qualified appraiser in accordance with the substance and principles of uniform standards of professional appraisal practice or an alternative method acceptable to the division and the commission; and
      3. Complies with the requirements of this section.
    2. The landowner has the burden of proof regarding compliance with all applicable laws, rules, and regulations.
  2. For the purpose of reviewing applications and making determinations regarding the issuance of tax credit certificates, including the dollar amount of the tax credit certificate to be issued:
    1. Division staff shall review each application and advise and make recommendations to the director and the commission regarding the application.
    2. The director has authority and responsibility to determine the credibility of the appraisal. In determining credibility, the director shall consider, at a minimum, compliance with the following requirements:
      1. The appraisal for a conservation easement donation for which a tax credit is claimed pursuant to section 39-22-522 is a qualified appraisal from a qualified appraiser, as defined in section 170 (f) of the federal “Internal Revenue Code of 1986”, as amended, and any federal regulations promulgated in connection with that section;
      2. The appraisal conforms with the substance and principles of the uniform standards of professional appraisal practice promulgated by the Appraisal Standards Board of the Appraisal Foundation and any other provision of law; and
      3. The appraiser holds a valid license as a certified general appraiser in accordance with part 6 of article 10 of this title 12.
      4. Repealed.
    3. The director has the authority and responsibility to determine compliance with the requirements of section 12-15-104.
    4. The commission has the authority and responsibility to determine whether a conservation easement donation for which a tax credit is claimed pursuant to section 39-22-522 is a qualified conservation contribution as defined in section 170 (h) of the federal “Internal Revenue Code of 1986”, as amended, and any federal regulations promulgated in connection with that section.
  3. The department of revenue is not authorized to disallow a conservation easement tax credit based on any requirements that are under the jurisdiction of the division, the director, or the commission pursuant to this section.
  4. A complete tax credit certificate application must be made by the landowner to the division and must include:
    1. A copy of the final conservation easement appraisal;
    2. A copy of the recorded deed granting the conservation easement;
    3. Documentation supporting the conservation purpose of the easement;
    4. Any other information or documentation the director or the commission deems necessary to make a final determination regarding the application; and
    5. The fee required pursuant to subsection (6) of this section.
  5. A landowner submitting an application for a tax credit certificate pursuant to this section or an application for an optional preliminary advisory opinion pursuant to subsection (14) of this section shall pay the division a fee as prescribed by the division. The application fee for an optional preliminary advisory opinion may be a different dollar amount than the application fee for a tax credit certificate. The fees must be adequate to pay for the administrative costs of the division and the commission in administering the requirements of this section, but not so high as to act as a disincentive to the creation of conservation easements in the state. The state treasurer shall credit the fees collected pursuant to this subsection (6) to the conservation cash fund created in section 12-15-107. On or before January 1, 2014, and on or before each January 1 thereafter, the division shall certify to the general assembly the amount of any fees prescribed by the division pursuant to this subsection (6).
    1. If, during the review of an application for a tax credit certificate, the director or the commission identifies any potential deficiencies, the director or commission shall document the potential deficiencies in a letter sent to the landowner by first-class mail. The division shall send letters documenting potential deficiencies to landowners in a timely manner so that the number of days between the date a completed application is received by the division and the mailing date of the division’s letter to the landowner does not exceed one hundred twenty days.
    2. The landowner has sixty days after the mailing date of the division’s letter to address the potential deficiencies identified by the director and the commission and provide additional information or documentation that the director or the commission deems necessary to make a final determination regarding the application.
    3. The director and the commission have ninety days after the date of receipt of any additional information or documentation provided by the landowner to review the information and documentation and make a final determination regarding the application.
    4. The deadlines prescribed by this subsection (7) may be extended upon mutual agreement between the director and the commission and the landowner.
  6. The director or the commission may deny an application if the landowner:
    1. Has not demonstrated to the satisfaction of the director or the commission that the application complies with any requirement of this article 15;
    2. Does not provide the information and documentation required pursuant to this article 15; or
    3. Fails to timely respond to any written request or notice from the division, the director, or the commission.
  7. If the director reasonably believes that any appraisal submitted in accordance with this section is not credible, the director, after consultation with the commission, may request that the landowner, at the landowner’s expense, obtain either a second appraisal or a review of the appraisal submitted with the application from an appraiser who meets the requirements of part 6 of article 10 of this title 12 and is in good standing with the board of real estate appraisers before making a final determination regarding the application.
  8. If the director and the commission do not identify any potential deficiencies with an application, the director and the commission shall approve the application, and the division shall issue a tax credit certificate to the landowner pursuant to section 12-15-105 in a timely manner so that the number of days between the date a completed application is received by the division and the date the tax credit certificate is issued does not exceed one hundred twenty days. Once a tax credit certificate is issued, the landowner may claim and use the tax credit subject to any other applicable procedures and requirements under title 39.
    1. If all potential deficiencies that have been identified are subsequently addressed to the satisfaction of the director and the commission, the director and the commission shall approve the application, and the division shall issue a tax credit certificate to the landowner pursuant to section 12-15-105. Once a tax credit certificate is issued, the landowner may claim and use the tax credit subject to any other applicable procedures and requirements under title 39.
    2. If any potential deficiencies that have been identified are not subsequently addressed to the satisfaction of the director and the commission, the division shall issue a written denial of the application to the landowner documenting those deficiencies that were the specific basis for the denial. The division shall date the written denial and send it by first-class mail to the landowner at the address provided by the landowner on the application. The director may act on behalf of the commission for purposes of administering the process for issuing approvals and denials of applications and for administering subsection (12) of this section.
    1. The landowner may appeal to the director either the director’s or the commission’s denial of an application, in writing, within thirty days after the issuance of the denial. This written appeal constitutes a request for an administrative hearing.
    2. If the landowner fails to appeal the denial of an application within thirty days after the issuance of the denial, the denial becomes final, and the division shall not issue a tax credit certificate to the landowner.
    3. Administrative hearings must be conducted in accordance with section 24-4-105. At the discretion of the director, hearings may be conducted by an authorized representative of the director or the commission or an administrative law judge from the office of administrative courts in the department of personnel. All hearings must be held in the county where the division is located unless the director designates otherwise. The decision of the director or the commission is subject to judicial review by the court of appeals and is subject to the provisions of section 24-4-106.
    4. In conducting settlement discussions with a landowner, the director and the commission may compromise on any of the deficiencies identified in the application and supporting documentation, including the dollar amount of the tax credit certificate to be issued. The director shall place on file in the division a record of any compromise and the reasons for the compromise.
    5. The director may promulgate rules pursuant to article 4 of title 24 to effectuate the purposes of this subsection (12).
    1. Commencing with the 2014 calendar year, and for each calendar year thereafter, the division shall create a report, which shall be made available to the public, containing the following aggregate information:
      1. The total number of tax credit certificate applications received, approved, and denied in accordance with this section, along with average processing times;
      2. For applications approved in accordance with this section:
        1. The total acreage under easement summarized by the allowable conservation purposes as defined in section 170 (h) of the federal “Internal Revenue Code of 1986”, as amended, and any federal regulations promulgated in connection with that section;
        2. The total appraised value of the easements;
        3. The total donated value of the easements; and
        4. The total dollar amount of tax credit certificates issued.
    2. The division may include additional easement-specific information in the public report that, notwithstanding the provisions of this article 15 or any other law to the contrary, would otherwise be publicly available.
    3. The director is authorized to share publicly available information regarding conservation easements with a third-party vendor for the purpose of developing and maintaining a registry of conservation easements in the state with a corresponding map displaying the boundaries of each easement in the state relative to county boundaries and other relevant mapping information. For purposes of this subsection (13)(c), “publicly available information” means any document showing evidence of its recordation in the records of a county clerk and recorder or other information readily available to the general public. Prior to sharing the information, the director shall consult with the commission regarding the appropriate types of information and the methods used for collecting the information. The department of regulatory agencies shall annually report on the information contained in the registry as a part of its presentation to its committee of reference at a hearing held pursuant to section 2-7-203 (2)(a) of the “State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act”. The information to be shared shall include the following:
      1. Any deeds, contracts, or other instruments creating, assigning, or terminating the easement, including the reception numbers on all instruments;
      2. The location and acreage of each easement, delineated by county;
      3. The name of the original grantor of the easement and the name of the original grantee of the easement;
      4. Whether the holder of the easement is a certified organization pursuant to section 12-15-104;
      5. The conservation purposes of the easement; and
      6. If a tax credit was issued.
    1. In addition to the tax credit certificate application process set forth in this section, a landowner may submit a proposed conservation easement donation to the division to obtain an optional preliminary advisory opinion regarding the transaction. The opinion may address the proposed deed of conservation easement, appraisal, conservation purpose, or other relevant aspect of the transaction.
    2. The division, the director, and the commission shall review the information and documentation provided in a manner consistent with the scope of their authority and responsibilities for reviewing tax credit certificate applications as outlined in subsection (3) of this section and issue either a favorable opinion or a nonfavorable opinion.
    3. The director or the commission may request that the landowner submit additional information or documentation that the director or the commission deems necessary to complete the review and issue an opinion.
    4. A nonfavorable opinion shall set forth any potential deficiencies identified by the director or the commission and that fall within the scope of the director’s and the commission’s review of the conservation easement transaction. The preliminary opinion is advisory only and is not binding for any purpose upon the division, the director, the commission, or the department of revenue.

    (14.5)

    1. The division shall convene a working group in conjunction with the department of law and the department of revenue to develop proposed statutes and regulations for the following:
      1. An alternative method to the appraisal process set forth in section 39-22-522 (3.3) to establish the amount of tax credits for which a qualified conservation easement contribution would be eligible;
      2. A process to provide retroactive tax credits, payments, or refunds to taxpayers who claimed credits pursuant to section 39-22-522 between January 1, 2000, and December 31, 2013, and whose tax credits were denied in whole or in part, including the development of eligibility criteria for receiving such retroactive tax credits, payments, or refunds; and
      3. Recommendations for administering orphaned conservation easements.
    2. The working group shall consist of eight members. The president of the senate, the minority leader of the senate, the speaker of the house of representatives, and the minority leader of the house of representatives shall each appoint two members to the working group prior to June 1, 2019. In making appointments, consideration should be given to appointing individuals who are certified easement holders, taxpayers who have considered conveying a conservation easement or conveyed a conservation easement and claimed a tax credit, conservation easement appraisers, and conservation attorneys. The working group shall convene its first meeting in a hearing room at the state capitol building at 9:00 a.m. on June 25, 2019. The working group shall select a chairperson at the first meeting. At each meeting of the working group, it shall designate the date, place, and time of its next meeting.
    3. The working group shall submit a report to the rural affairs and agriculture committee of the house of representatives and the agriculture and natural resources committee of the senate by no later than December 1, 2019. The report must include any recommendations for legislation or rule-making to address the issues addressed pursuant to this subsection (14.5).
  9. The division may promulgate rules to effectuate the purpose, implementation, and administration of this section pursuant to article 4 of title 24. The authority to promulgate rules includes the authority to:
    1. Define further in rule the administrative processes and requirements, including application processing and review time frames, for obtaining and issuing an optional preliminary advisory opinion pursuant to subsection (14) of this section; and
    2. Adopt best practices, processes, and procedures used by other entities that regularly review conservation easement transactions, including a practice, process, or procedure deeming qualified conservation easement appraisals approved by these entities based on their independent reviews as credible for purposes of the conservation easement tax credit.
  10. Notwithstanding the provisions of the “Colorado Open Records Act”, part 2 of article 72 of title 24, the division, the director, and the commission shall deny the right of public inspection of any documentation or other record related to information obtained as part of an individual landowner’s application for a tax credit certificate or an optional preliminary advisory opinion pursuant to the requirements of this section, including documentation or other records related to administrative hearings and settlement discussions held pursuant to subsection (12) of this section. The division, the director, and the commission may share documentation or other records related to information obtained pursuant to this section with the department of revenue.
  11. Nothing in this section affects any tax credit that is claimed or used pursuant to section 39-22-522 for conservation easement donations occurring prior to January 1, 2014.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 723, § 1, effective October 1; (2)(a)(II), (3)(b)(II), IP(13)(c), and (15) amended, (3)(b)(IV) repealed, and (14.5) added,(HB 19-1264), ch. 420, p. 3682, § 15, effective October 1.

Editor’s note: (1) This section is similar to former § 12-61-1106 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in HB 19-1264. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from June 30, 2019, to October 1, 2019, see HB 19-1264, chapter 420, Session Laws of Colorado 2019.

12-15-107. Conservation cash fund.

There is hereby created in the state treasury the conservation cash fund, which consists of any money transferred pursuant to sections 12-15-104 and 12-15-106 and any gifts, grants, and donations provided to carry out the purposes of this article 15. All money in the fund shall be used as provided in this article 15. Interest earned on the fund shall remain in the fund and shall not be deposited in or transferred to the general fund or any other fund.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 729, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-61-1107 (1) as it existed prior to 2019.

Division of Professions and Occupations

Article 20. Division of Professions and Occupations

Editor’s note: This title 12 was repealed and reenacted, with relocations, in 2019. This article 20 contains provisions from several former C.R.S. sections of this title 12 and article 34 of title 24, as they existed prior to 2019. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated. For a detailed comparison of this title 12, see the comparative tables located in the back of the index or https://leg.colorado.gov/sites/default/files/images/olls/title-12-2019-table.pdf.

Part 1. General Provisions

12-20-101. Scope.

This article 20 applies to every article in this title 12 except articles 10 and 15 and except to the extent otherwise specified in this article 20 or another part or article of this title 12. The requirements of this article 20 are in addition to the requirements established in any other part or article of this title 12.

History. Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 729, § 1, effective October 1.

12-20-102. Definitions.

As used in this title 12, unless the context otherwise requires:

  1. “Applicant” means a person applying, pursuant to a part or article of this title 12, for a new license, certification, or registration or to renew, reinstate, or reactivate a license, certification, or registration that is authorized pursuant to that part or article.
  2. “Board” means a board created within the division by a part or article of this title 12 that has regulatory authority concerning the practice of a profession or occupation regulated by that part or article.
  3. “Certificate” or “certification” means a credential that demonstrates that a person has the qualifications required by a part or article of this title 12 to practice the profession or occupation regulated by that part or article.
  4. “Certificate holder” or “certificant” means a person that has a valid certificate.
  5. “Commission” means a commission created within the division by a part or article of this title 12 that has regulatory authority concerning the practice of a profession or occupation regulated by that part or article.
  6. “Director” means the director of the division or the director’s designee.
  7. “Division” means the division of professions and occupations created in the department pursuant to section 12-20-103.

    1. (7.5) (a) “Driver’s history” means a driver’s history record made and maintained in accordance with section 42-2-121 (2).
    2. “Driver’s history” does not include a misdemeanor or felony conviction, notwithstanding that the conviction is included within the driver’s history record made and maintained in accordance with section 42-2-121 (2).
  8. “Law” means the federal and state constitutions, statutes, rules, and case law.
  9. “License” means a grant of authority issued by the director or a board or commission pursuant to a part or article of this title 12 that authorizes a person to engage in a profession or occupation regulated by that part or article.
  10. “Licensee” means a person regulated by a part or article of this title 12 that is licensed pursuant to that part or article.

    (10.5) “Occupational credential portability program” means the program established pursuant to section 12-20-202 (3) and rules adopted by a regulator pursuant to that section.

  11. “Register” means to record the information required by a part or article of this title 12 in the form and manner determined by the regulator that regulates the practice of a profession or occupation pursuant to that part or article. “Registered” and “registration” have corresponding meanings.
  12. “Registrant” means a person that is currently registered.
  13. “Regulate” means to subject a person to a requirement, including a requirement to obtain a license, certification, or registration, pursuant to a part or article of this title 12 and rules adopted pursuant to that part or article of this title 12 in order to practice a profession or occupation. “Regulation” has a corresponding meaning.
  14. “Regulator” means, within a particular part or article of this title 12, the director or a board or commission, as appropriate, that has regulatory authority concerning the practice of a profession or occupation regulated by that part or article.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 729, § 1, effective October 1. L. 2020: (10.5) added,(HB 20-1326), ch. 126, p. 528, § 3, effective June 25. L. 2021: (7.5) added,(SB 21-040), ch. 59, p. 239, § 1, effective September 7.

Cross references:

For the short title (“Red Tape Reduction Act”) and the legislative declaration in HB 20-1326, see sections 1 and 2 of chapter 126, Session Laws of Colorado 2020.

12-20-103. Division of professions and occupations - creation - duties of division and department head - office space - per diem for board or commission members - review of functions.

  1. Division created.
    1. There is hereby created a division of professions and occupations in the department of regulatory agencies, the head of which is the director of professions and occupations. The executive director of the department shall appoint the director in accordance with section 13 of article XII of the state constitution. Except as provided in subsection (1)(b) of this section, the director shall appoint other personnel as necessary for the efficient operation of the division.
    2. Subject to available appropriations, the director shall give good-faith consideration to the recommendations of any type 1 board or commission relating to the employment of the primary administrator to assist the board or commission, whether the person is designated as an executive secretary, a program administrator, or another title or position.
  2. Supervision and support.   The division has supervision and control of thetype 2 entities within the division pursuant to the “Administrative Organization Act of 1968”, article 1 of title 24. Fortype 1 entities, the division shall provide necessary management support.
  3. Approval of rules.   The supervision and control of, and the management support for, boards, commissions, and programs by the department of regulatory agencies and the division also includes the approval or disapproval of rules of the boards, commissions, and director relating to the examination and licensure, certification, or registration of applicants to ensure that the rules are fair and impartial.
  4. Staff.   Subject to subsection (1) of this section, each board, commission, or program may employ and pay out of money appropriated to it by the general assembly only that number of employees and subordinate officers as are certified by it and approved by the executive director of the department of regulatory agencies to be necessary. All salaries to be paid to the employees and subordinate officers shall be within the appropriation made therefor by the general assembly.
  5. Office space.
    1. Each board, commission, and program shall be provided with suitable offices in the capitol buildings group if space is available in any of the buildings and, if not, then in a suitable office building in the city and county of Denver selected by the executive director of the department of personnel. It is lawful and proper for two or more of the boards, commissions, or programs to be assigned space in the same office room or suite, if the grouping or joint occupancy, in the opinion of the executive director of the department of regulatory agencies, will not unreasonably interfere with the efficient operation of the boards, commissions, or programs so grouped or joined.
    2. Each board, commission, or program to which office space is provided shall pay into the general fund of the state, out of the money the general assembly appropriates to the division for use by the board, commission, or program, a monthly or annual charge for rental, heat, light, telephone, collection, legal, and other state services made available to the board, commission, or program. The executive director of the department of personnel, with the approval of the executive director of the department of regulatory agencies, may fix the amount of the charges, which must not be more than twenty-five percent of the money appropriated by the general assembly to the division for use by a board, commission, or program.
  6. Per diem.   Notwithstanding any law to the contrary, each member of a board or commission is entitled to receive a per diem allowance of fifty dollars for each day spent in attendance at board or commission meetings, hearings, or examinations and to be reimbursed for actual and necessary expenses incurred in the discharge of the member’s official duties. The per diem compensation for board or commission members must not exceed that sum in any fiscal year that the state personnel board approves for employees not under the state personnel system. The general assembly shall annually appropriate money from the division of professions and occupations cash fund, created in section 12-20-105 (3), for the payment of per diem compensation and expenses. A state employee shall not receive per diem compensation for services performed during normal working hours, when on paid administrative leave, or when otherwise prohibited by fiscal rules adopted by the state controller.
  7. Periodic evaluation of division functions.   The department of regulatory agencies shall analyze and evaluate the division and its functions as set forth in this title 12. The department shall conduct the analysis and evaluation in accordance with section 24-34-104 (5) and shall submit its report and recommendations for legislation, if any, in accordance with that section. The department shall initially analyze and evaluate the division and submit its report by October 15, 2015, and shall analyze and evaluate the division every ten years thereafter. This section does not require the repeal of the division or its functions as specified in this title 12.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 730, § 1, effective October 1.

Editor’s note: Subsection (1) is similar to former § 24-34-102 (1); subsection (2) is similar to former § 24-34-102 (2); subsection (3) is similar to former § 24-34-102 (3); subsection (4) is similar to former § 24-34-102 (4); subsection (5)(a) is similar to former § 24-34-102 (5); subsection (5)(b) is similar to former § 24-34-102 (6); subsection (6) is similar to former § 24-34-102 (13); and subsection (7) is similar to former § 24-34-102 (15), as those sections existed prior to 2019.

12-20-104. Excise tax on renewal fees - report to joint budget committee - definition.

  1. Notwithstanding any provision of law to the contrary, there is imposed, and the executive director shall collect, an excise tax of one dollar for each year of the renewal period upon the payment of renewal fees that are required to be paid by individuals for the renewal of a license, registration, or certificate granting the individual authority or permission from the state to continue the practice of a profession or occupation; except that the excise tax shall not be imposed on the renewal fee paid by nurse aides pursuant to section 12-255-107.
  2. For the purposes of this section, “renewal fees” includes all fees for the renewal, reinstatement, and continuation of a license, registration, or certificate for the practice of a profession or occupation in this state as provided in section 12-20-202 (1) and (2). “Renewal fees” does not include fees paid for initial licensure, registration, or certification; application fees; examination fees; penalty late fees; duplicate license fees; regulator action fees; verification fees; license change fees; fees for the verification of licensure, registration, or certification status to other states; electrical inspection permit fees; plumbing inspection fees; and fees for certification of grades.
  3. Money collected pursuant to subsection (1) of this section shall be credited to the legal defense account created within the division of professions and occupations cash fund pursuant to section 12-20-105 (5).
  4. On October 1 of each year, the executive director shall report to the joint budget committee the amount of money credited to the legal defense account created within the division of professions and occupations cash fund pursuant to subsection (3) of this section for the preceding fiscal year.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 732, § 1, effective October 1. L. 2020: (1) amended,(HB 20-1183), ch. 157, p. 695, § 33, effective July 1.

Editor’s note: This section is similar to former § 24-34-104.4 as it existed prior to 2019.

12-20-105. Fee adjustments - division of professions and occupations cash fund created - legal defense account created - definition.

  1. This section applies to all activities of the division and all regulators.
    1. The director shall propose, as part of the division’s annual budget request, an adjustment in the amount of each fee that each regulator is authorized by law to collect. The budget request and the adjusted fees for each regulator must reflect direct and indirect costs that are appropriated in the annual general appropriation act.
      1. Except as otherwise provided in subsection (2)(b)(II) of this section, based upon the appropriation made and subject to the approval of the executive director, each regulator shall adjust the fees the regulator is authorized by law to collect so that the revenue generated from the fees approximates its direct and indirect costs.
      2. The costs of the state board of psychologist examiners, the state board of marriage and family therapist examiners, the state board of licensed professional counselor examiners, the state board of social work examiners, the state board of unlicensed psychotherapists, and the state board of addiction counselor examiners shall be considered collectively in the renewal fee-setting process. Subsequent revenue generated by the fees set by the boards plus revenues generated pursuant to section 12-245-703 shall be compared to those collective costs to determine recovery of direct and indirect costs.
      3. The fees set pursuant to this subsection (2)(b) remain in effect for the fiscal year for which the budget request applies.
  2. All fees collected by a regulator, not including any fees retained by contractors as established pursuant to section 24-34-101 (10), shall be transmitted to the state treasurer, who shall credit them to the division of professions and occupations cash fund, which fund is hereby created. All money credited to the division of professions and occupations cash fund shall be used as provided in this section and shall not be deposited in or transferred to the general fund of this state or any other fund.
  3. Any fees established pursuant to section 24-34-101 (10) or (11) may be received by a contractor and retained as payment for the costs of examination or other services rendered pursuant to the contract with the executive director. Fees retained by a contractor and not collected by the state or deposited with the state treasurer are not subject to article 36 of title 24.
    1. The excise tax collected pursuant to section 12-20-104 shall be credited to the legal defense account, which account is hereby created within the division of professions and occupations cash fund. The excise tax is the sole source of funding for the account, and no other fee or portion of a fee collected by a regulator and credited to the division of professions and occupations cash fund shall be deposited in or transferred to the account. The account shall be used to supplement revenues received by the division but shall only be used for the purpose of paying legal expenses incurred by a regulator. Upon a determination of the need of a regulator for additional revenues for the payment of legal expenses, the director may authorize the allocation of revenues from the legal defense account to a regulator for legal expenses.
    2. For purposes of this subsection (5), “legal expenses” includes costs relating to holding administrative hearings and charges for legal services provided by the department of law, administrative law judge services, investigative services, expert witnesses, and consultants.
  4. Each July 1, whenever money appropriated to the division for the activities of a regulator for the prior fiscal year is unexpended, the money shall be made a part of the appropriation to the division for the next fiscal year, and the amount shall not be raised from fees collected by the regulator. If a supplemental appropriation is made to the division for the activities of a regulator, the fees of the regulator, when adjusted for the fiscal year following the fiscal year in which the supplemental appropriation was made, shall be adjusted by an additional amount that is sufficient to compensate for the supplemental appropriation. Money appropriated to the division in the annual long appropriation bill shall be designated as cash funds and shall not exceed the amount anticipated to be raised from fees collected by the regulators.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 733, § 1, effective October 1. L. 2020: (2)(b)(II) amended,(HB 20-1206), ch. 304, p. 1543, § 42, effective July 14.

Editor’s note: This section is similar to former § 24-34-105 as it existed prior to 2019.

Part 2. General Powers and Duties of Division, Boards, and Commissions

12-20-201. Payment of fees - condition of licensure, certification, or registration.

The division shall not license, certify, or register a person who has applied to, and has otherwise satisfied the requirements for licensure, certification, or registration by, a regulator until the applicant has paid and the division has received all applicable fees.

History. Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 735, § 1, effective October 1.

12-20-202. Licenses, certifications, and registrations - renewal - reinstatement - fees - occupational credential portability program - temporary authority for military spouses - definitions - exceptions for military personnel - rules - consideration of criminal convictions or driver’s history - executive director authority.

  1. Renewal.
    1. Licenses, certifications, and registrations issued pursuant to a part or article of this title 12 expire pursuant to a schedule established by the director and must be renewed or reinstated in accordance with this section. The director shall establish renewal fees and delinquency fees for reinstatement pursuant to section 12-20-105. If a person fails to renew the person’s license, certification, or registration pursuant to the schedule established by the director, the license, certification, or registration expires. A person whose license, certification, or registration has expired is subject to the penalties set forth in this section and any other penalties authorized in the applicable part or article of this title 12 that regulates the person’s profession or occupation.
    2. Notwithstanding any provision of the law to the contrary, the director may change the renewal date of any license, certification, or registration issued by a regulator so that approximately the same number of licenses, certifications, or registrations are scheduled for renewal in each month of the year. Where any renewal date is so changed, the fee for the license, certification, or registration is proportionately increased or decreased, as the case may be. A license, certification, or registration is valid for a period of no less than one year and no longer than three years, as determined by the director in consultation with the applicable regulator. A licensee, certificate holder, or registrant shall submit an application for renewal to the applicable regulator on forms and in the manner prescribed by the director.
    3. Notwithstanding any provision of the law to the contrary, upon the approval and recommendation of a regulator, the executive director may change the period of the validity of any license, certification, or registration issued by the regulator for a period not to exceed three years. If the executive director changes the period of validity of a license, certification, or registration pursuant to this subsection (1)(c), the director shall proportionately increase or decrease the fee for the license, certification, or registration, as the case may be, but the director shall not impose a fee increase that would result in hardship to the licensee, certificate holder, or registrant.
    4. A regulator may prescribe renewal requirements, which must include compliance with any continuing education or continuing competency requirements adopted pursuant to the regulator’s authority.
    5. The director shall allow for a grace period for licenses, certifications, or registrations issued by a regulator. A licensee, certificate holder, or registrant has a sixty-day grace period after the expiration of his or her license, certification, or registration to renew the license, certification, or registration without the imposition of a disciplinary sanction by the regulator for the profession for practicing on an expired license, certification, or registration. The licensee, certificate holder, or registrant shall satisfy all renewal requirements pursuant to the applicable part or article of this title 12 and shall pay a delinquency fee in an amount determined pursuant to sections 12-20-105 and 24-79.5-102.
  2. Reinstatement.
    1. If a licensee, registrant, or certificate holder does not renew his or her license, registration, or certificate within the sixty-day grace period pursuant to subsection (1)(e) of this section, the license, registration, or certificate is treated as an expired license, registration, or certificate, and the licensee, registrant, or certificate holder is ineligible to practice until the license, registration, or certificate is reinstated.
    2. The regulator shall reinstate the expired license, certificate, or registration of any active military personnel, including any National Guard member or reservist who is currently on active duty for a minimum of thirty days, and any veteran who has not been dishonorably discharged, if the military personnel or veteran meets the requirements of this subsection (2).
    3. The regulator, in its discretion and pursuant to its authority, may reinstate an expired license, registration, or certificate of any person other than the active military personnel or veterans specified in subsection (2)(b) of this section pursuant to the following requirements:
        1. The licensee, registrant, or certificate holder submits an application for reinstatement of the license, registration, or certificate to the regulator sixty days or more after the date of expiration, and the licensee, registrant, or certificate holder complies with all requirements of the applicable part or article of this title 12.
        2. If the licensee, registrant, or certificate holder practiced with an expired license, registration, or certificate, the regulator may impose disciplinary actions against the licensee, registrant, or certificate holder.
      1. If the license, registration, or certificate has been expired for more than two years, the person with the expired license, registration, or certificate shall pay all applicable renewal and reinstatement fees and shall satisfactorily demonstrate to the regulator that the person is competent to practice within his or her profession. The regulator, as it deems appropriate, shall accept one or more of the following as a demonstration of competency to practice:
        1. A license, registration, or certificate from another state that is in good standing for the applicant where the applicant demonstrates active practice;
        2. Practice for a specified time under a restricted license, registration, or certificate;
        3. Successful completion of prescribed remedial courses ordered by the regulator that are within the authority of the regulator to require;
        4. Successful completion of any continuing education or continuing competency requirements prescribed by the regulator that are within the authority of the regulator to require;
        5. Passage of an examination for licensure, registration, or certification as approved by the regulator that the regulator has the authority to require; or
        6. Other professional standards or measures of continued competency as determined by the regulator.
      2. The regulator may waive the requirements for reinstatement of an expired license, registration, or certificate by an applicant who demonstrates hardship, so long as the regulator considers the protection of the public in the hardship petition.
  3. Occupational credential portability program.
    1. There is hereby created in the division the occupational credential portability program by which a regulator may approve an application for licensure, certification, registration, or enrollment by endorsement, reciprocity, or transfer. Each regulator shall strive to reduce barriers for applicants under the occupational credential portability program, including through reciprocity agreements, compacts, or other means to expedite licensure, certification, registration, or enrollment and shall adopt rules to implement the program in the least burdensome way necessary to protect the public. Unless there are specific reasons to withhold a license, certification, registration, or enrollment, a regulator shall issue a license, certification, registration, or enrollment, as applicable, to an applicant who meets the requirements of this subsection (3) and rules adopted by the regulator pursuant to this subsection (3).
      1. Except as specified in subsections (3)(c) and (3)(f) of this section, a person duly licensed, certified, registered, or enrolled in good standing in another state or United States territory to practice a particular profession or occupation is, upon application to the division for licensure, certification, registration, or enrollment in that profession or occupation in this state, entitled to the issuance of the applicable license, certification, registration, or enrollment upon:
        1. Submission of satisfactory proof to the regulator, under penalty of perjury, of the applicant’s substantially equivalent experience or credentials, as required by the part or article of this title 12 that regulates the applicable profession or occupation, and that the applicant has not committed an act that would be grounds for disciplinary action under the law governing the applicable profession or occupation;
        2. Payment of applicable fees established pursuant to section 12-20-105; and
        3. Compliance with any other applicable requirement, including passing an exam, of the part or article of this title 12 that regulates the applicable profession or occupation.
      2. For the purposes of this subsection (3)(b), “in good standing” means that a license, certification, registration, or enrollment has not been revoked or suspended and against which there are no outstanding disciplinary or adverse actions.
    2. An applicant is not entitled to licensure, certification, registration, or enrollment pursuant to this subsection (3) if approving the licensure, certification, registration, or enrollment would violate an existing compact or reciprocity agreement or if the regulator demonstrates by a preponderance of evidence, after notice and opportunity for a hearing, that the applicant:
      1. Lacks the requisite substantially equivalent experience or credentials to practice the applicable profession or occupation; or
      2. Has committed an act that would be grounds for disciplinary action under the law governing the applicable profession or occupation.
    3. A regulator may specify by rule what constitutes substantially equivalent experience or credentials and, unless otherwise prohibited by this title 12, shall allow an applicant for certification, registration, or licensure by endorsement to demonstrate competency in a specific profession or occupation as determined by the regulator in lieu of a requirement that the applicant has worked or practiced in that profession or occupation for a period of time prior to the application for endorsement.
    4. Subsections (3)(a) to (3)(d) of this section do not apply to the following professions or occupations:
      1. Combative sports, regulated pursuant to article 110 of this title 12;
      2. Electricians, regulated pursuant to article 115 of this title 12;
      3. Repealed.
      4. Mortuaries and crematories, regulated pursuant to article 135 of this title 12;
      5. Nontransplant tissue banks, regulated pursuant to article 140 of this title 12;
      6. Outfitters and guides, regulated pursuant to article 145 of this title 12;
      7. Passenger tramways, regulated pursuant to article 150 of this title 12;
      8. Plumbers, regulated pursuant to article 155 of this title 12;
      9. Private investigators, regulated pursuant to article 160 of this title 12;
      10. Direct-entry midwives, regulated pursuant to article 225 of this title 12; or
      11. Surgical assistants and surgical technologists, regulated pursuant to article 310 of this title 12.
    5. Effective January 1, 2021:
      1. Except as specified in subsection (3)(f)(III) of this section, a military spouse duly licensed, certified, registered, or enrolled in good standing in another state or United States territory to practice a particular profession or occupation is, upon application to the division for licensure, certification, registration, or enrollment in that profession or occupation in this state, entitled to the issuance of a temporary license, certification, registration, or enrollment upon submission of satisfactory proof to the regulator, under penalty of perjury, of the applicant’s active license, certification, registration, or enrollment in another state or United States territory in good standing, and that the applicant has not committed an act that would be grounds for disciplinary action under the law governing the applicable profession or occupation.
      2. For the purposes of this subsection (3)(f):
        1. “In good standing” means that a license, certification, registration, or enrollment has not been revoked, expired, or suspended and against which there are no outstanding disciplinary or adverse actions.
        2. “Military spouse” means the spouse of a person who is actively serving in the United States armed forces and who is stationed in Colorado in accordance with military orders.
      3. An applicant is not entitled to temporary licensure, certification, registration, or enrollment pursuant to this subsection (3)(f) if approving the temporary licensure, certification, registration, or enrollment would violate an existing compact or reciprocity agreement or if the regulator demonstrates by a preponderance of evidence, after notice and opportunity for a hearing, that:
        1. The applicant has committed an act that would be grounds for disciplinary action under the law governing the applicable profession or occupation; or
        2. The applicant’s license, certification, registration, or enrollment issued by another state or United States territory is not in good standing.
      4. Notwithstanding any provision of law to the contrary:
        1. A temporary license, certification, registration, or enrollment issued to a military spouse pursuant to this subsection (3)(f) is valid for three years after the date of issuance and may not be renewed.
        2. Each regulator shall waive the application fee for temporary licenses, certifications, registrations, or enrollments issued pursuant to this subsection (3)(f).
  4. Military personnel.   A regulator shall, upon presentation of satisfactory evidence by an applicant for licensure, certification, or registration, accept education, training, or service completed by an individual as a member of the armed forces or reserves of the United States, the National Guard of any state, the military reserves of any state, or the naval militia of any state toward the qualifications to receive the license, certification, or registration. Each regulator shall promulgate rules to implement this subsection (4).
  5. Criminal convictions.   Unless there is a specific statutory disqualification that prohibits an applicant from obtaining licensure, certification, or registration based on a criminal conviction, if a regulator determines that an applicant for licensure, certification, or registration has a criminal record, the regulator is governed by section 24-5-101 for purposes of granting or denying, or placing any conditions on, licensure, certification, or registration.

    (5.5) Driver’s history. A regulator shall not consider an event in an applicant’s driver’s history when determining whether to issue to the applicant a new, renewal, reactivated, or reinstated license, certification, or registration unless:

    1. The event is relevant to the performance of the profession or occupation that is the subject of the application; and
      1. The operation of a motor vehicle is a duty of the profession or occupation that is the subject of the application;
      2. The event is a part of a pattern of behavior that is relevant to the performance of the profession or occupation that is the subject of the application; or
      3. The event occurred within three years before the date that the applicant submitted the application to the regulator.
  6. Executive director authority.Review of examinations and procedures.Employment of administrative law judges.
    1. Form of license, certification, or registration. The executive director, after consultation with the regulator concerned, shall determine the form and content of any license, certification, or registration issued by the regulator, including any document evidencing renewal of a license, certification, or registration.
    2. Review of examinations and procedures.   Notwithstanding anytype 1 transfer as such transfer is defined by the “Administrative Organization Act of 1968”, article 1 of title 24, the executive director may review any examination or procedure for granting a license, certification, or registration by any regulator prior to the execution of the examination or procedure. After the review, if the executive director has reason to believe the examination or procedure is unfair to the applicants or unreasonable in content, the executive director shall call on five people licensed, certified, or registered in the occupation or profession to review the examination or procedure jointly with the executive director. The executive director and the licensees, certificate holders, or registrants, acting jointly, may make findings of fact and recommendations to the regulator concerning any examination or procedure. The findings of fact and recommendations are public documents.
    3. Employment of administrative law judges.   Notwithstanding anytype 1 transfer as such transfer is defined by the “Administrative Organization Act of 1968”, article 1 of title 24, the executive director may employ an administrative law judge, and may require any regulator to use an administrative law judge in lieu of a hearing by the regulator, to conduct hearings on any matter within the jurisdiction of the regulator, subject to appropriations made to the department of personnel. Administrative law judges are appointed pursuant to part 10 of article 30 of title 24. An administrative law judge employed pursuant to this subsection (6)(c) shall conduct hearings in accordance with section 24-4-105, and the administrative law judge has the authority specified in section 24-4-105.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 735, § 1, effective October 1. L. 2020: (3) amended,(HB 20-1326), ch. 126, p. 528, § 4, effective June 25. L. 2021: (3)(e)(III) repealed,(SB 21-266), ch. 423, p. 2796, § 9, effective July 2; (5.5) added,(SB 21-040), ch. 59, p. 239, § 2, effective September 7.

Editor’s note: Subsection (1)(a) is similar to former § 12-5.5-202 (2); subsection (1)(b) is similar to former § 24-34-102 (8)(a); subsection (1)(c) is similar to former § 24-34-102 (7); subsection (1)(d) is similar to former § 24-34-102 (8)(b); subsection (1)(e) is similar to former § 24-34-102 (8)(c); subsection (2) is similar to former § 24-34-102 (8)(d); subsection (3) is similar to former § 24-34-102 (8)(e); subsection (4) is similar to former § 24-34-102 (8.5); subsection (5) is similar to former § 24-34-102 (8.7); subsection (6)(a) is similar to former § 24-34-102 (10); subsection (6)(b) is similar to former § 24-34-102 (11); and subsection (6)(c) is similar to former § 24-34-102 (12), as those sections existed prior to 2019.

Cross references:

For the short title (“Red Tape Reduction Act”) and the legislative declaration in HB 20-1326, see sections 1 and 2 of chapter 126, Session Laws of Colorado 2020.

12-20-203. Inactive license or certification - rights and responsibilities.

  1. Persons licensed or certified to practice any profession or occupation under this title 12 for which postgraduate study or attendance at educational institutions is required in order to obtain renewal of the license or certification may have their names transferred to an inactive licensees or certificate holders category under this section. Every regulator authorized under this title 12 to issue licenses or certifications shall maintain a list of inactive licensees or certificate holders, as applicable, and upon written notice to the regulator, the licensee or certificate holder shall not be required to comply with any postgraduate educational requirements so long as the licensee or certificate holder remains inactive in the profession or occupation. Each inactive licensee or certificate holder shall continue to meet the normal registration requirements imposed upon the licensee’s or certificate holder’s profession or occupation.
  2. The inactive status shall be noted on the face of any license or certification issued while the licensee or certificate holder remains inactive. If the person seeks to resume the practice of the person’s profession or occupation after being placed on an inactive list, the person shall file a proper application to reactivate the license or certification, pay the applicable renewal fee, and meet any postgraduate study or in-service requirements that the regulator may determine to be applicable in order to resume the practice.
  3. Engaging in the practice of a profession or occupation while on inactive status pursuant to this section may be grounds for revocation.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 739, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-70-101 as it existed prior to 2019.

12-20-204. Regulator’s rule-making authority.

  1. Except as specified in subsection (2) of this section, in addition to any specific rule-making authority that a regulator has pursuant to a part or article of this title 12, a regulator may adopt rules necessary to administer the part or article of this title 12 pursuant to which the regulator has regulatory authority.
  2. Subsection (1) of this section does not apply to the following:
    1. Article 110 of this title 12 concerning combative sports;
    2. Repealed.
    3. Article 135 of this title 12 concerning mortuaries and crematories; and
    4. Article 140 of this title 12 concerning nontransplant tissue banks.

History. Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 739, § 1, effective October 1. L. 2020: (2)(b) repealed, (HB 20-1286), ch. 269, p. 1312, § 6, effective July 10.

Part 3. Military Personnel

12-20-301. Definitions.

As used in this part 3, unless the context otherwise requires:

  1. “Agency” means an agency of the state that regulates a profession or occupation under this title 12.
  2. “Authority to practice” or “authorized to practice” means the holding of a currently valid license to practice in a profession or occupation or a currently valid certification or registration necessary to practice in a profession or occupation if the person is licensed, certified, or registered under this title 12 or a substantially similar law in another state.
  3. Repealed.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 740, § 1, effective October 1. L. 2020: (3) repealed,(HB 20-1326), ch. 126, p. 531, § 5, effective January 1, 2021.

Editor’s note: This section is similar to former § 12-71-101 as it existed prior to 2019.

Cross references:

For the short title (“Red Tape Reduction Act”) and the legislative declaration in HB 20-1326, see sections 1 and 2 of chapter 126, Session Laws of Colorado 2020.

12-20-302. Active military personnel - exemptions from licensing requirements.

  1. Each board or division that regulates persons licensed, certified, or registered pursuant to this title 12 shall exempt licensed, certified, or registered military personnel who have been called to federally funded active duty for more than one hundred twenty days for the purpose of serving in a war, emergency, or contingency from the payment of any professional or occupational license, certification, or registration fees, including renewal fees, and from any continuing education or professional competency requirements pursuant to this title 12 for a renewal cycle that falls within the period of service or within the six months following the completion of service in the war, emergency, or contingency.
  2. This section applies to persons licensed, certified, or registered pursuant to this title 12 as it existed on August 8, 2017.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 740, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-70-102 as it existed prior to 2019.

12-20-303. Continuing education - regulated service members - rules.

  1. An agency may accept, from a person with authority to practice, continuing education, training, or service completed as a member of the armed forces or reserves of the United States, the National Guard of any state, the military reserves of any state, or the naval militia of any state toward the educational qualifications to renew the person’s authority to practice.
  2. An agency may promulgate rules establishing educational standards and procedures necessary to implement this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 741, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-71-104 as it existed prior to 2019.

12-20-304. Military spouse - authority to practice - reciprocity - notice. (Repealed)

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 741, § 1, effective October 1. L. 2020: Entire section repealed,(HB 20-1326), ch. 126, p. 531, § 6, effective January 1, 2021.

Editor’s note: Subsection (1) is similar to former § 12-71-102 (1); subsection (2) is similar to former § 12-71-103 (1); subsection (3) is similar to former § 12-71-103 (2); subsections IP(4) and (4)(a) are similar to former § 12-71-102 (2); and subsection (4)(b) is similar to former § 12-71-102 (3), as those sections existed prior to 2019.

Cross references:

For the short title (“Red Tape Reduction Act”) and the legislative declaration in HB 20-1326, see sections 1 and 2 of chapter 126, Session Laws of Colorado 2020.

12-20-305. Rules.

The director may promulgate rules reasonably necessary to implement this part 3.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 741, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-71-105 as it existed prior to 2019.

Part 4. Discipline, Enforcement, and Review

Cross references:

For alternative disciplinary actions for persons licensed, registered, or certified to practice a profession or occupation pursuant to this title 12, see § 24-34-106; for the Colorado rules of civil procedure concerning subpoenas, injunctions, and civil contempt, see C.R.C.P. 45, 65, and 107.

12-20-401. Procedures for complaints concerning licensees, certificate holders, and registrants - executive director authority - rules.

  1. The executive director is responsible for receiving and monitoring the disposition of complaints. The executive director may require an investigation of a complaint concerning a person regulated by a regulator in accordance with this section.
  2. A regulator shall refer all complaints relating to persons licensed, certified, or registered by the regulator to the executive director.
  3. For the purpose of facilitating the handling of complaints, the executive director shall devise simple, standard complaint forms designed to supply the information necessary to properly conduct an investigation of complaints. The complainant shall reduce each complaint to writing before any formal action begins on the complaint. The receipt of the forms shall be acknowledged on behalf of the executive director. The complainant shall be advised in writing of the final disposition of the complaint.
    1. The executive director may:
      1. Assign a complaint to the appropriate regulator;
      2. Assign a complaint specially for investigation; or
      3. Take such other action on the complaint as appears to the executive director to be warranted in the circumstances.
    2. Assignments of investigations of complaints to others is subject to specified time limits set by the executive director for completion of investigations.
  4. Nothing in this section supersedes sections 24-4-104 to 24-4-106 or the statutory power to issue, suspend, revoke, or renew licenses, certifications, and registrations.
  5. The executive director may promulgate rules, pursuant to section 24-4-103 and not inconsistent with the requirements of this article 20, to assist in the efficient performance of the duties imposed by this section. The executive director may also render advice to the general assembly, as well as to the general public, upon the question of the proper role of the state in regulating professions and occupations.
  6. Information about a substantiated finding of mistreatment of an at-risk adult or the appeal of a finding that the department of human services shares with the department or a regulator for the purposes of a regulatory investigation conducted pursuant to this section is confidential and must be de-identified to protect the privacy of the at-risk adult.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 742, § 1, effective October 1. L. 2021: (7) added,(HB 21-1123), ch. 106, p. 429, § 5, effective September 7.

Editor’s note: Subsection (1) is similar to former § 24-34-102 (9); subsection (2) is similar to former § 24-34-103 (1); subsection (3) is similar to former § 24-34-103 (2); subsection (4) is similar to former § 24-34-103 (3); subsection (5) is similar to former § 24-34-103 (4); and subsection (6) is similar to former § 24-34-103 (5), as those sections existed prior to 2019.

ANNOTATION

Law reviews. For article, “Representing a Professional Licensee in A Regulatory Board Investigation”, see 21 C olo. Law. 1397 (1992).

To make out a prima facie case under this section, the applicant bears the burden of showing that he is handicapped within the meaning of § 24-34-301 (4), that he was otherwise qualified to perform the job, and that an employer refused to hire him due to the handicap. Once these three conditions are met, the burden shifts to the employer to show that there is no reasonable accommodation that the employer can make with regard to the handicap, that the handicap actually disqualifies the applicant from the job and that the handicap has a significant impact on the job. If the employer presents credible evidence that no reasonable accommodation is possible, the applicant must go forward with evidence of his individual capabilities as well as suggestions for possible accommodation. Civil Rights Comm’n v. Fire Prot. Dist., 772 P.2d 70 (Colo. 1989) (decided prior to 1993 amendment to former § 24-34-301 (4)).

12-20-402. Immunity.

  1. The director, any member of a board or commission, any member of a regulator’s staff, any person acting as a witness or consultant to a regulator, any witness testifying in a proceeding authorized by a part or article of this title 12 governing a particular profession or occupation, and any person who lodges a complaint pursuant to a part or article of this title 12 governing a particular profession or occupation is immune from liability in any civil action brought against the individual for acts occurring while acting in the individual’s capacity as director, board or commission member, staff, consultant, or witness, respectively, if the individual:
    1. Was acting in good faith within the scope of the individual’s respective capacity;
    2. Made a reasonable effort to obtain the facts of the matter as to which the individual acted; and
    3. Acted in the reasonable belief that the action taken by the individual was warranted by the facts.
  2. Any person participating in good faith in lodging or making a complaint or report or participating in any investigative or administrative proceeding pursuant to a part or article of this title 12 governing a particular profession or occupation is immune from any civil or criminal liability that may result from that participation; except that a person participating as described in this subsection (2) under article 135 of this title 12 concerning mortuaries and crematories is immune from only civil liability.
    1. The immunity granted by subsection (1) of this section to a witness testifying in a proceeding does not apply to proceedings under article 310 of this title 12 concerning surgical assistants and surgical technologists.
    2. The immunity granted by subsection (1) of this section to a person who lodges a complaint does not apply to proceedings under:
      1. Article 130 of this title 12 concerning landscape architects; or
      2. Article 230 of this title 12 concerning hearing aid providers.
  3. This section does not apply to articles 140 and 150 of this title 12 concerning nontransplant tissue banks and passenger tramways, respectively.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 743, § 1, effective October 1. L. 2020: (4) amended,(HB 20-1212), ch. 228, p. 1114, § 3, effective July 2; (4) amended,(HB 20-1286), ch. 269, p. 1312, § 7, effective July 10.

Editor’s note: (1) This section is similar to former § 12-36-118 (3)(b) as it existed prior to 2019.

(2) Amendments to subsection (4) by HB 20-1212 and HB 20-1286 were harmonized.

12-20-403. Disciplinary procedures - investigations - hearings - oaths - witness statements - subpoenas - appointment of administrative law judge - driver’s history.

  1. In accordance with article 4 of title 24 and the part or article of this title 12 governing the particular profession or occupation over which a regulator has regulatory authority, a regulator may investigate, hold hearings, and gather evidence in all matters related to the exercise and performance of the regulator’s powers and duties.
    1. In order to aid the regulator in any hearing or investigation instituted pursuant to this section, the regulator or an administrative law judge appointed pursuant to subsection (3) of this section may administer oaths, take affirmations of witnesses, and issue subpoenas compelling the attendance of witnesses and the production of all relevant records, papers, books, documentary evidence, and materials in any hearing, investigation, accusation, or other matter before the regulator or an administrative law judge.
      1. Upon failure of any witness, licensee, certificate holder, or registrant to comply with a subpoena or process, the district court of the county in which the subpoenaed person, licensee, certificate holder, or registrant resides or conducts business, upon application by the regulator with notice to the subpoenaed person, licensee, certificate holder, or registrant, may issue to the person, licensee, certificate holder, or registrant an order requiring that person, licensee, certificate holder, or registrant to:
        1. Appear before the regulator;
        2. Produce the relevant papers, books, records, documentary evidence, or materials if so ordered; or
        3. Give evidence touching the matter under investigation or in question.
      2. If the person, licensee, certificate holder, or registrant fails to obey the order of the court, the court may hold the person, licensee, certificate holder, or registrant in contempt of court.
    2. For purposes of the regulation of nontransplant tissue banks under article 140 of this title 12, the authority granted under subsection (2)(a) of this section does not apply with respect to investigations.
  2. The regulator may appoint an administrative law judge pursuant to part 10 of article 30 of title 24 and, if otherwise authorized in the part or article of this title 12 governing the particular profession or occupation, may employ an administrative law judge or hearing officer, to conduct hearings, take evidence, make findings, and report the findings to the regulator.
    1. Unless subsection (4)(b) of this section applies, a regulator shall not consider an event within the driver’s history of a licensee, certificant, or registrant when determining:
      1. Whether to impose discipline;
      2. The type of discipline to impose; or
      3. The severity of discipline to impose.
    2. A regulator may consider an event within a driver’s history if:
      1. The event is relevant to the performance of the profession or occupation for which the licensee, certificant, or registrant is licensed, certified, or registered; and
        1. The operation of a motor vehicle is a duty of the profession or occupation for which the licensee, certificant, or registrant is licensed, certified, or registered;
        2. The event is a part of a pattern of behavior that is relevant to the performance of the profession or occupation for which the licensee, certificant, or registrant is licensed, certified, or registered; or
        3. The event occurred within three years before the act upon which the discipline is based.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 743, § 1, effective October 1. L. 2021: (4) added,(SB 21-040), ch. 59, p. 240, § 3, effective September 7.

Editor’s note: Subsection (1) is similar to former § 12-40.5-110 (7)(b)(I); subsection (2)(a) is similar to former § 12-40.5-110 (7)(b)(II); subsection (2)(b) is similar to former § 12-40.5-110 (7)(b)(III); and subsection (3) is similar to former § 12-40.5-110 (7)(c), as those sections existed prior to 2019.

12-20-404. Disciplinary actions - regulator powers - disposition of fines - mistreatment of at-risk adult.

  1. General disciplinary authority.   If a regulator determines that an applicant, licensee, certificate holder, or registrant has committed an act or engaged in conduct that constitutes grounds for discipline or unprofessional conduct under a part or article of this title 12 governing the particular profession or occupation, the regulator may:
    1. Issue a letter of admonition in accordance with subsection (4) of this section;
      1. Place a licensee, certificate holder, or registrant on probation, except as provided in subsection (1)(b)(II) of this section.
      2. A regulator is not authorized under this subsection (1)(b) to impose probation on a licensee, certificate holder, or registrant regulated under the following:
        1. Article 150 of this title 12 concerning passenger tramways;
        2. Repealed.
        3. Article 255 of this title 12 concerning nurse aides; or
        4. Article 310 of this title 12 concerning surgical assistants and surgical technologists.
      1. Impose an administrative fine, subject to any limitations or requirements specified in the part or article of this title 12 governing a particular profession or occupation and except as provided in subsection (1)(c)(II) of this section.
      2. A regulator is not authorized under this subsection (1)(c) to impose a fine on a licensee, certificate holder, or registrant regulated under the following:
        1. Repealed.
        2. Article 140 of this title 12 concerning nontransplant tissue banks;
        3. Article 200 of this title 12 concerning acupuncturists;
        4. Article 205 of this title 12 concerning athletic trainers;
        5. Article 255 of this title 12 concerning nurse aides;
        6. Article 265 of this title 12 concerning nursing home administrators;
        7. Article 270 of this title 12 concerning occupational therapists and occupational therapy assistants;
        8. Article 300 of this title 12 concerning respiratory therapists; or
        9. Article 310 of this title 12 concerning surgical assistants and surgical technologists.
      1. Deny, refuse to renew, revoke, or suspend the license, certification, or registration of an applicant, licensee, certificate holder, or registrant, except as provided in subsection (1)(d)(II) of this section.
      2. A regulator is not authorized under this subsection (1)(d) to refuse to renew the license, certification, or registration of a licensee, certificate holder, or registrant regulated under the following:
        1. Article 105 of this title 12 concerning barbers and cosmetologists;
        2. Article 110 of this title 12 concerning combative sports;
        3. Repealed.
        4. Article 140 of this title 12 concerning nontransplant tissue banks;
        5. Article 145 of this title 12 concerning outfitters and guides;
        6. Article 160 of this title 12 concerning private investigators;
        7. Article 200 of this title 12 concerning acupuncturists;
        8. Article 225 of this title 12 concerning direct-entry midwives;
        9. Article 240 of this title 12 concerning medical practice;
        10. Article 250 of this title 12 concerning naturopathic doctors;

          (J.5) Article 255 of this title 12 concerning nurses;

        11. Article 255 of this title 12 concerning nurse aides;
        12. Article 305 of this title 12 concerning speech-language pathologists; or
        13. Article 315 of this title 12 concerning veterinarians.
  2. Deferral precluded.
    1. When a complaint or investigation discloses an instance of misconduct that, in the opinion of a regulator, warrants formal action, the regulator shall not resolve the complaint by a deferred settlement, action, judgment, or prosecution.
    2. This subsection (2) does not apply to the following:
      1. Repealed.
      2. Article 140 of this title 12 concerning nontransplant tissue banks;
      3. Article 150 of this title 12 concerning passenger tramways; and
      4. Article 255 of this title 12 concerning nurse aides.
  3. Waiting period after revocation or surrender.
      1. Except as provided in subsections (3)(a)(III) and (3)(c) of this section, a person whose license, certification, or registration to practice a profession or occupation under this title 12 is revoked is ineligible to apply for a new license, certification, or registration under the part or article of this title 12 that governs the particular profession or occupation for two years after the date of revocation of the license, certification, or registration.
      2. In addition, the waiting period specified in subsection (3)(a)(I) of this section applies when a person regulated under any of the following articles surrenders a license, certification, or registration to avoid discipline:
        1. Article 105 of this title 12 concerning barbers and cosmetologists;
        2. Article 145 of this title 12 concerning outfitters and guides;
        3. Article 160 of this title 12 concerning private investigators;

          (C.5) Article 165 of this title 12 concerning radon professionals;

        4. Article 200 of this title 12 concerning acupuncturists;

          (D.5) Article 205 of this title 12 concerning athletic trainers;

        5. Article 210 of this title 12 concerning audiologists;
        6. Article 230 of this title 12 concerning hearing aid providers;
        7. Article 235 of this title 12 concerning massage therapists;
        8. Article 240 of this title 12 concerning medical practice;
        9. Article 250 of this title 12 concerning naturopathic doctors;
        10. Article 255 of this title 12 concerning nurses and nurse aides;
        11. Article 270 of this title 12 concerning occupational therapists and occupational therapy assistants;
        12. Article 285 of this title 12 concerning physical therapists and physical therapist assistants;
        13. Article 300 of this title 12 concerning respiratory therapists;
        14. Article 305 of this title 12 concerning speech-language pathologists; and
        15. Article 310 of this title 12 concerning surgical assistants and surgical technologists.
        1. For a person whose license as a nursing home administrator issued under article 265 of this title 12 is revoked, the person is ineligible to apply for a new nursing home administrator license under that article for one year after the date of revocation.
        2. For a person whose license, certification, or registration as a mental health professional issued under article 245 of this title 12 is revoked, or who surrenders the license, certification, or registration to avoid discipline, the person is ineligible to apply for a new license, certification, or registration under that article for three years after the date of revocation or surrender.
    1. This subsection (3) applies to a person enrolled as an engineer-intern pursuant to part 2 of article 120 of this title 12 or as a land surveyor-intern under part 3 of article 120 of this title 12.
    2. This subsection (3) does not apply to the following:
      1. Article 110 of this title 12 concerning combative sports;
      2. Repealed.
      3. Article 140 of this title 12 concerning nontransplant tissue banks;
      4. Article 150 of this title 12 concerning passenger tramways;
      5. Repealed.
      6. Article 215 of this title 12 concerning chiropractors; and
      7. Repealed.
      8. Article 295 of this title 12 concerning psychiatric technicians.
      9. Repealed.
  4. Letter of admonition.
    1. When a complaint or investigation discloses an instance of misconduct that, in the opinion of a regulator, does not warrant formal action by the regulator but that should not be dismissed as being without merit, the regulator may issue and send a letter of admonition to the licensee, certificate holder, or registrant.
      1. When a regulator sends a letter of admonition to a licensee, certificate holder, or registrant pursuant to subsection (4)(a) of this section, the regulator shall also advise the licensee, certificate holder, or registrant that the person has the right to request in writing, within twenty days after receipt of the letter, that the regulator initiate formal disciplinary proceedings to adjudicate the propriety of the conduct upon which the letter of admonition is based.
      2. If the licensee, certificate holder, or registrant timely requests adjudication, the regulator shall vacate the letter of admonition and shall process the matter by means of formal disciplinary proceedings.
    2. Repealed.
  5. Confidential letter of concern.
    1. When a complaint or investigation discloses an instance of conduct that does not warrant formal action by a regulator and, in the opinion of the regulator, should be dismissed, but the regulator has noticed indications of possible errant conduct by the licensee, certificate holder, or registrant that could lead to serious consequences if not corrected, the regulator may or shall, in accordance with the part or article of this title 12 governing the particular profession or occupation, send the licensee, certificate holder, or registrant a confidential letter of concern.
    2. This subsection (5) does not apply to the following:
      1. Repealed.
      2. Article 140 of this title 12 concerning nontransplant tissue banks; and
      3. Article 150 of this title 12 concerning passenger tramways.
      4. and (V) Repealed.
  6. Disposition of fines.
    1. Except as specified in subsection (6)(b) of this section, a regulator shall transmit all fines collected pursuant to a part or article of this title 12 to the state treasurer, who shall credit them to the general fund.
    2. The disposition of fines collected by:
      1. The state electrical board is governed by section 12-115-122 (5)(a);
      2. The director for violations of laws governing the activities of outfitters and guides is governed by section 12-145-110 (3); and
      3. The state plumbing board is governed by section 12-155-123 (4)(a).
  7. Mistreatment of at-risk adult.   A licensee, certificate holder, or registrant substantiated in a case of mistreatment of an at-risk adult while performing professional duties shall provide the licensee’s, certificate holder’s, or registrant’s professional license number to county adult protective services, upon request.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 744, § 1, effective October 1. L. 2020: (1)(b)(II)(C), (1)(c)(II)(E), (1)(d)(II)(K), (2)(b)(IV), and (3)(a)(II)(J) amended and (3)(c)(VII) repealed,(HB 20-1183), ch.157, p. 695, § 34, effective July 1; (1)(d)(II)(J.5) added,(HB 20-1216), ch. 190, p. 878, § 22, effective July 1; (1)(c)(II)(A), (1)(d)(II)(C), (2)(b)(I), (3)(c)(II), and (5)(b)(I) repealed,(HB 20-1286), ch. 269, p. 1312, § 8, effective July 10. L. 2021: (1)(b)(II)(B), (3)(c)(V), and (5)(b)(IV) repealed, (3)(a)(II)(D.5) added, and (4)(c) amended,(SB 21-147), ch. 174, p. 950, § 2, effective September 1; (3)(a)(II)(M), (3)(a)(II)(N), (3)(c)(VI), (3)(c)(VIII), (4)(c), (5)(b)(III), and (5)(b)(IV) amended, (3)(a)(II)(O) added, and (3)(c)(IX) and (5)(b)(V) repealed,(SB 21-092), ch. 139, p. 781, § 3, effective September 1; IP(4)(c) repealed,(SB 21-266), ch. 423, p. 2796, § 10, effective September 1; (3)(a)(II)(C.5) added,(HB 21-1195), ch. 398, p. 2645, § 3, effective September 7; (7) added,(HB 21-1123), ch. 106, p. 429, § 6, effective September 7.

Editor’s note: (1) This section is similar to former § 12-5.5-302 as it existed prior to 2019.

(2) (a) Amendments to subsections IP(4)(c) and (4)(c) by SB 21-092, SB 21-147, and SB 21-266 were harmonized.

(b) Amendments to subsection (5)(b)(IV) by SB 21-092 and SB 21-147 were harmonized.

(3) Section 47 of chapter 423 (SB 21-266), Session Laws of Colorado 2021, provides that the act changing this section takes effect only if both SB 21-092 and SB 21-147 become law, in which case the changes to this section take effect September 1, 2021. SB 21-092 and SB 21-147 both became law and the changes to this section take effect September 1, 2021.

Cross references:

For the legislative declaration in HB 20-1216, see section 1 of chapter 190, Session Laws of Colorado 2020.

12-20-405. Cease-and-desist orders.

    1. If it appears to a regulator, based upon credible evidence as presented in a written complaint by any person, that a licensee, certificate holder, or registrant is acting in a manner that is an imminent threat to the health and safety of the public, or a person is acting or has acted without the license, certification, or registration required to practice a profession or occupation, the regulator that regulates the particular profession or occupation may issue an order to cease and desist the activity. The order must set forth the statutes and rules alleged to have been violated, the facts alleged to have constituted the violation, and the requirement that all unlawful acts or unlicensed, uncertified, or unregistered practices immediately cease.
    2. Within ten days after service of the order to cease and desist pursuant to subsection (1)(a) of this section, the respondent may request a hearing on the question of whether acts or practices in violation of the part or article of this title 12 governing the particular profession or occupation have occurred. The hearing must be conducted pursuant to sections 24-4-104 and 24-4-105.
    1. If it appears to the regulator, based upon credible evidence as presented in a written complaint by any person, that a person has violated any other portion of the part or article of this title 12 governing the particular profession or occupation, then, in addition to any specific powers granted pursuant to the part or article of this title 12 governing the particular profession or occupation, the regulator may issue to the person an order to show cause as to why the regulator should not issue a final order directing the person to cease and desist from the unlawful act or unlicensed, uncertified, or unregistered practice.
    2. The regulator shall promptly notify the person of the issuance of the order to show cause and shall include in the notice a copy of the order, the factual and legal basis for the order, and the date set by the regulator for a hearing on the order. The regulator may serve the notice by personal service, by first-class United States mail, postage prepaid, or as may be practicable upon any person against whom the order is issued. Personal service or proof of receipt of mailing of an order or document pursuant to this subsection (2)(b) constitutes notice to the person of the existence and contents of the order or document.
      1. The regulator shall commence the hearing on an order to show cause no sooner than ten, and no later than forty-five, calendar days after the date the regulator sent or served notice as provided in subsection (2)(b) of this section. The regulator may continue the hearing by agreement of all parties based upon the complexity of the matter, number of parties to the matter, and legal issues presented in the matter, but in no event may the regulator commence the hearing later than sixty calendar days after the date of transmission or service of the notification. Sections 24-4-104 and 24-4-105 govern the conduct of the hearing held under this subsection (2)(c).
      2. If a person against whom the regulator has issued an order to show cause pursuant to subsection (2)(a) of this section does not appear at the hearing, the regulator may present evidence that the regulator properly sent or served the notification upon the person pursuant to subsection (2)(b) of this section and any other evidence related to the matter as the regulator deems appropriate. The regulator shall issue the order within ten days after the regulator’s determination related to reasonable attempts to notify the respondent, and the order becomes final as to that person by operation of law.
      3. If the regulator reasonably finds that the person against whom the regulator issued the order to show cause is acting or has acted without the required license, certification, or registration or has or is about to engage in acts or practices constituting violations of the part or article of this title 12 governing the particular profession or occupation, the regulator may issue a final cease-and-desist order directing the person to cease and desist from further unlawful acts or unlicensed, uncertified, or unregistered practices.
      4. The regulator shall provide notice, in the manner set forth in subsection (2)(b) of this section, of the final cease-and-desist order within ten calendar days after the hearing conducted pursuant to this subsection (2)(c) to each person against whom the regulator has issued the final order. The final order issued pursuant to subsection (2)(c)(III) of this section is effective when issued and constitutes a final order for purposes of judicial review.
  1. The regulator may enter into a stipulation with a person if it appears to the regulator, based upon credible evidence presented to the regulator, that the person has engaged in or is about to engage in:
    1. An unlicensed, uncertified, or unregistered act or practice;
    2. An act or practice constituting a violation of the part or article of this title 12 governing the particular profession or occupation or a rule adopted or an order issued pursuant to those laws; or
    3. An act or practice constituting grounds for administrative sanction pursuant to the part or article of this title 12 governing the particular profession or occupation.
  2. If any person fails to comply with a final cease-and-desist order or a stipulation, the regulator may request the attorney general or the district attorney for the judicial district in which the alleged violation exists to bring, and if so requested the attorney shall bring, suit for a temporary restraining order and for injunctive relief to prevent any further or continued violation of the final order.
  3. A person aggrieved by the regulator’s final determination with regard to a cease-and-desist order may seek judicial review in accordance with section 12-20-408.
  4. This section does not apply to articles 140 and 150 of this title 12 concerning nontransplant tissue banks and passenger tramways, respectively.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 749, § 1, effective October 1. L. 2020: (6) amended,(HB 20-1286), ch. 269, p. 1313, § 9, effective July 10.

Editor’s note: This section is similar to former § 12-5.5-303 as it existed prior to 2019.

12-20-406. Injunctive relief.

  1. Except as otherwise specified in a part or article of this title 12 or subsection (3) of this section:
    1. A regulator, in the name of the people of the state of Colorado and through the attorney general of the state of Colorado, may apply for an injunction in any court of competent jurisdiction to enjoin any person from committing any act prohibited by a part or article of this title 12.
    2. If the regulator establishes that the defendant has been or is committing an act prohibited by the part or article, the court shall enter a decree perpetually enjoining the defendant from further committing the act.
    3. An injunctive proceeding may be brought pursuant to this section in addition to, and not in lieu of, all penalties and other remedies provided in the part or article.
    1. Except as specified in subsection (2)(b) of this section, when seeking an injunction under subsection (1) of this section, a regulator is not required to allege or prove the inadequacy of any remedy at law or that substantial or irreparable damage is likely to result from a continued violation.
    2. Subsection (2)(a) of this section does not apply to the following:
      1. Article 105 of this title 12 concerning barbers and cosmetologists;
      2. Part 4 of article 120 of this title 12 concerning architects;
      3. Article 135 of this title 12 concerning mortuaries and crematories;
      4. Article 150 of this title 12 concerning passenger tramways;
      5. Article 210 of this title 12 concerning audiologists;
      6. Article 215 of this title 12 concerning chiropractors;
      7. Article 230 of this title 12 concerning hearing aid providers;
      8. Article 240 of this title 12 concerning medical practice;
      9. Article 255 of this title 12 concerning nurses and nurse aides;
      10. Repealed.
      11. Article 275 of this title 12 concerning optometrists;
      12. Article 280 of this title 12 concerning pharmacists, pharmacy businesses, and pharmaceuticals;
      13. Article 285 of this title 12 concerning physical therapists and physical therapist assistants; and
      14. Article 290 of this title 12 concerning podiatrists.
  2. This section does not apply to the following:
    1. Article 100 of this title 12 concerning accountants;
    2. Article 110 of this title 12 concerning combative sports;
    3. Repealed.
    4. Article 130 of this title 12 concerning landscape architects;
    5. Article 140 of this title 12 concerning nontransplant tissue banks;
    6. Article 220 of this title 12 concerning dentists and dental hygienists;
    7. Article 250 of this title 12 concerning naturopathic doctors;
    8. Article 295 of this title 12 concerning psychiatric technicians; and
    9. Article 315 of this title 12 concerning veterinarians.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 752, § 1, effective October 1. L. 2020: (2)(b)(IX) amended and (2)(b)(X) repealed,(HB 20-1183), ch. 157, p. 696, § 35, effective July 1; (3)(c) repealed,(HB 20-1286), ch. 269, p.1313, § 10, effective July 10.

Editor’s note: This section is similar to former § 12-36-129 (6) as it existed prior to 2019.

12-20-407. Unauthorized practice of profession or occupation - penalties - exclusions.

    1. [Editor’s note: This version of the introductory portion to subsection (1)(a) is effective until March 1, 2022.]  A person commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501 for the first offense and, for the second or any subsequent offense, commits a class 6 felony and shall be punished as provided in section 18-1.3-401 if the person:

      [ Editor’s note: This version of the introductory portion to subsection (1)(a) is effective March 1, 2022. ] A person commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501 if the person:

      1. Violates section 12-100-112 or 12-100-116 (1)(a);
      2. Engages in or offers or attempts to engage in the conduct, promotion, or performance of live boxing matches without an active license or permit issued under article 110 of this title 12;
      3. Engages or offers or attempts to engage in activities as an outfitter without an active registration issued under article 145 of this title 12;
      4. Engages in or works at or offers or attempts to engage in or work at the business, trade, or calling of a residential, journeyman, master, or apprentice plumber; a water conditioning contractor; a water conditioning installer; or a water conditioning principal without an active license, permit, or registration issued under article 155 of this title 12; or
      5. Practices or offers or attempts to practice any of the following professions or occupations without an active license, certification, or registration issued under the part or article of this title 12 governing the particular profession or occupation:
        1. Barbering, hairstyling, esthetics, manicuring, or cosmetology, as regulated under article 105 of this title 12;
        2. The profession of an electrician, as regulated under article 115 of this title 12;
        3. Professional engineering, as regulated under article 120 of this title 12;
        4. Professional land surveying, as regulated under article 120 of this title 12;
        5. Architecture, as regulated under article 120 of this title 12;
        6. Landscape architecture, as regulated under article 130 of this title 12;
        7. Acupuncture, as regulated under article 200 of this title 12;
        8. Audiology, as regulated under article 210 of this title 12;
        9. Chiropractic, as regulated under article 215 of this title 12;
        10. Dentistry or dental hygiene, as regulated under article 220 of this title 12;
        11. Direct-entry midwifery, as regulated under article 225 of this title 12;
        12. Practice as a hearing aid provider or engages in the practice of dispensing, fitting, or dealing in hearing aids, as regulated under article 230 of this title 12;
        13. Medicine, practice as a physician assistant, or practice as an anesthesiologist assistant, as regulated under article 240 of this title 12;
        14. Practice as a psychologist, social worker, marriage and family therapist, licensed professional counselor, unlicensed psychotherapist, or addiction counselor, as regulated under article 245 of this title 12;
        15. Practical or professional nursing, as regulated under article 255 of this title 12;
        16. Nursing home administration, as regulated under article 265 of this title 12;
        17. Optometry, as regulated under article 275 of this title 12;
        18. Pharmacy or as a pharmacy technician, as regulated under article 280 of this title 12;
        19. Physical therapy, as regulated under part 1 of article 285 of this title 12;
        20. Podiatry, as regulated under article 290 of this title 12;
        21. Practice as a psychiatric technician, as regulated under article 295 of this title 12;
        22. Respiratory therapy, as regulated under article 300 of this title 12; or

          (V) (W) Veterinary medicine, as regulated under article 315 of this title 12.

    2. [Editor’s note: This version of the introductory portion to subsection (1)(b) is effective until March 1, 2022.]  A person commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501 for the first offense and, for the second or any subsequent offense, commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, if the person engages in any of the following activities:

      [ Editor’s note: This version of the introductory portion to subsection (1)(b) is effective March 1, 2022. ] A person commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501 if the person engages in any of the following activities:

      1. Conducts private investigations or presents himself or herself as a, or uses the title of, “private investigator”, “private detective”, “licensed private detective”, or “licensed private investigator” without an active license issued under article 160 of this title 12;
      2. Practices or offers or attempts to practice athletic training without an active registration issued under article 205 of this title 12;
      3. Practices or offers or attempts to practice massage therapy without an active license issued under article 235 of this title 12 or knowingly aids or abets the unlicensed practice of massage therapy;
      4. Practices or offers or attempts to practice occupational therapy without an active license as required by and issued under article 270 of this title 12 for occupational therapists or occupational therapy assistants;
      5. Practices or offers or attempts to practice speech-language pathology without an active certification issued under article 305 of this title 12;
      6. Performs the duties of a surgical assistant or surgical technologist without being registered under article 310 of this title 12; or
      7. Conducts radon measurement or radon mitigation, claims to be a radon measurement professional or radon mitigation professional, or uses the title “radon measurement professional” or “radon mitigation professional” or any other title suggesting that the individual is qualified to perform radon measurement or radon mitigation without an active license issued under article 165 of this title 12.
    3. A person who practices or offers or attempts to practice as a naturopathic doctor without an active registration issued under article 250 of this title 12 commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501.
    4. A person who violates section 12-285-202 or 12-285-203 without an active certification issued under part 2 of article 285 of this title 12 to practice as a physical therapist assistant commits a class 2 misdemeanor and shall be punished as provided in section 18-1.3-501.
  1. The penalties for:
    1. Engaging in unauthorized activities regarding mortuaries and crematories are governed by section 12-135-108;
    2. Violating article 140 of this title 12 concerning nontransplant tissue banks are governed by section 12-140-108;
    3. Engaging in unauthorized activities regarding passenger tramways are governed by section 12-150-108 (4); and
    4. Engaging in unauthorized activities regarding nurse aide practice are governed by section 12-255-215.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 753, § 1, effective October 1; (1)(a)(V)(R) amended,(HB 19-1242), ch. 434, p. 3756, § 16, effective October 1. L. 2020: (2)(d) amended,(HB 20-1183), ch. 157, p. 696, § 36, effective July 1; (1)(a)(V)(N) amended,(HB 20-1206), ch. 304, p. 1544, § 43, effective July 14. L. 2021: (1)(b)(V) and (1)(b)(VI) amended and (1)(b)(VII) added,(HB 21-1195), ch. 398, p. 2645, § 4, effective September 7; IP(1)(a) and IP(1)(b) amended,(SB 21-271), ch. 462, p. 3154, § 140, effective March 1, 2022.

Editor’s note: (1) Subsection (1)(a) is similar to former § 12-23-119 (2); subsection (1)(b) is similar to former § 12-58.5-104 (2); subsection (1)(c) is similar to former § 12-37.3-113; and subsection (1)(d) is similar to former § 12-41-216, as those sections existed prior to 2019.

(2) Section 803(2) of chapter 462 (SB 21-271), Session Laws of Colorado 2021, provides that the act changing this section applies to offenses committed on or after March 1, 2022.

12-20-408. Judicial review.

  1. Except as specified in subsection (2) of this section, the court of appeals has initial jurisdiction to review all final actions and orders of a regulator that are subject to judicial review and shall conduct the judicial review proceedings in accordance with section 24-4-106 (11); except that, with regard only to cease-and-desist orders, a district court of competent jurisdiction has initial jurisdiction to review a final action or order of a regulator that is subject to judicial review and shall conduct the judicial review proceedings in accordance with section 24-4-106 (3) for the following:
    1. Article 115 of this title 12 concerning electricians;
    2. Part 4 of article 120 of this title 12 concerning architects;
    3. Article 225 of this title 12 concerning direct-entry midwives;
    4. Article 250 of this title 12 concerning naturopathic doctors;
    5. Article 275 of this title 12 concerning optometrists; and
    6. Article 315 of this title 12 concerning veterinarians.
  2. A district court of competent jurisdiction has initial jurisdiction to review all final actions and orders of a regulator that are subject to judicial review and shall conduct the judicial review proceedings in accordance with section 24-4-106 (3) for the following:
    1. Repealed.
    2. Article 130 of this title 12 concerning landscape architects;
    3. Article 135 of this title 12 concerning mortuaries and crematories;
    4. Article 140 of this title 12 concerning nontransplant tissue banks; and
    5. Article 200 of this title 12 concerning acupuncturists.
    6. Repealed.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 756, § 1, effective October 1. L. 2020: (2)(a) repealed,(HB 20-1286), ch. 269, p. 1313, § 11, effective July 10; (2)(e) and (2)(f) amended and (2)(g) repealed,(HB 20-1218), ch. 299, p. 1484, § 4, effective September 1; (2)(e) amended and (2)(f) repealed,(HB 20-1219), ch. 300, p. 1494, § 7, effective September 1.

Editor’s note: (1) This section is similar to former § 12-42.5-125 as it existed prior to 2019.

(2) Amendments to subsection (2)(f) by HB 20-1218 and HB 20-1219 were harmonized.

Article 30. Provisions Applicable to Health Care Professions and Occupations

Editor’s note: This title 12 was repealed and reenacted, with relocations, in 2019. This article 30 contains provisions from several former C.R.S. sections of this title 12 and article 34 of title 24, as they existed prior to 2019. Former C.R.S. section numbers are shown in editor’s notes following those sections that were relocated. For a detailed comparison of this title 12, see the comparative tables located in the back of the index or https://leg.colorado.gov/sites/default/files/images/olls/title-12-2019-table.pdf.

Part 1. Miscellaneous Provisions Applicable to Health Care Professions and Occupations

12-30-101. Scope.

This article 30 applies to articles 200 to 315 of this title 12 except to the extent otherwise specified in this article 30 or another part or article of this title 12. The requirements of this article 30 are in addition to the requirements established in any other part or article of this title 12.

History. Source: L. 2019: Entire title R&RE with relocations, (HB 19-1172), ch. 136, p. 757, § 1, effective October 1.

12-30-102. Medical transparency act of 2010 - disclosure of information about health-care providers - fines - rules - short title - legislative declaration - review of functions - repeal.

  1. The short title of this section is the “Michael Skolnik Medical Transparency Act of 2010”.
    1. The general assembly hereby finds and determines that:
      1. The people of Colorado need to be fully informed about the past practices of persons practicing a health-care profession in this state in order to make informed decisions when choosing a health-care provider and determining whether to proceed with a particular regimen of care recommended by a health-care provider;
      2. The purpose of this section is to provide transparency to the public regarding the competency of persons engaged in the practice of certain health-care professions in this state to assist citizens in making informed health-care decisions.
    2. The general assembly further finds and declares that it is important to make information about persons engaged in the practice of a health-care profession available to the public in a manner that is efficient, cost-effective, and maintains the integrity of the information, and to that end, the general assembly encourages persons to file the required information with the division electronically, to the extent possible.
    1. As used in this section, “applicant” means a person applying for a new, active license, certification, or registration or to renew, reinstate, or reactivate an active license, certification, or registration to practice:
      1. Audiology pursuant to article 210 of this title 12;
      2. As a licensed hearing aid provider pursuant to part 2 of article 230 of this title 12;
      3. Acupuncture pursuant to article 200 of this title 12;
      4. Podiatry pursuant to article 290 of this title 12;
      5. Chiropractic pursuant to article 215 of this title 12;
      6. Dentistry pursuant to article 220 of this title 12;
      7. Dental hygiene pursuant to article 220 of this title 12;
      8. Medicine pursuant to article 240 of this title 12 or part 36 of article 60 of title 24;
      9. As a physician assistant or an anesthesiologist assistant pursuant to article 240 of this title 12;
      10. Direct-entry midwifery pursuant to article 225 of this title 12;
      11. Practical nursing, professional nursing, or advanced practice registered nursing pursuant to article 255 of this title 12;
      12. Optometry pursuant to article 275 of this title 12;
      13. Physical therapy pursuant to article 285 of this title 12;
      14. Psychology pursuant to part 3 of article 245 of this title 12;
      15. Social work pursuant to part 4 of article 245 of this title 12;
      16. Marriage and family therapy pursuant to part 5 of article 245 of this title 12;
      17. Professional counseling pursuant to part 6 of article 245 of this title 12;
      18. Psychotherapy pursuant to part 7 of article 245 of this title 12;
      19. Addiction counseling pursuant to part 8 of article 245 of this title 12;
      20. Speech-language pathology pursuant to article 305 of this title 12;
      21. Athletic training pursuant to article 205 of this title 12;
      22. Massage therapy pursuant to article 235 of this title 12;
      23. As a certified nurse aide pursuant to article 255 of this title 12;
      24. Occupational therapy pursuant to article 270 of this title 12;
      25. Respiratory therapy pursuant to article 300 of this title 12;
      26. Pharmacy pursuant to article 280 of this title 12;
      27. As a psychiatric technician pursuant to article 295 of this title 12;
      28. As a surgical assistant or surgical technologist pursuant to article 310 of this title 12; and
      29. Naturopathic medicine pursuant to article 250 of this title 12.
    2. A person who is an applicant under this subsection (3) is not, by virtue of inclusion in this section, a health-care provider for purposes of any other provision of Colorado law.
  2. When applying for a new license, certification, or registration or to renew, reinstate, or reactivate a license, certification, or registration in this state, each applicant shall provide the following information to the director, in a form and manner determined by the director, as applicable to each profession:
      1. The applicant’s full name, including any known aliases;
      2. The applicant’s current address of record and telephone number;
      3. The applicant’s location of practice, if different than the address of record;
      4. The applicant’s education and training related to the applicant’s profession;
      5. Information pertaining to any license, certification, or registration to practice in the profession for which the applicant seeks licensure, certification, or registration, issued or held during the immediately preceding ten years, including the license, certification, or registration status and year of issuance;
      6. Any board certifications and specialties, if applicable;
      7. Any affiliations with or clinical privileges held in hospitals or health-care facilities;
      8. Any health-care-related business ownership interests;
      9. Information pertaining to the applicant’s employer, if any, including name, current address, and telephone number; and
      10. Information pertaining to any health-care-related employment contracts or contracts establishing an independent contractor relationship with any entities if the annual aggregate value of the contracts exceeds five thousand dollars, as adjusted by the director during each license, certification, or registration renewal cycle to reflect changes in the United States department of labor, bureau of labor statistics, consumer price index for Denver-Aurora-Lakewood for all items and all urban consumers, or its applicable predecessor or successor index. Nothing in this subsection (4)(a)(X) requires an applicant to report such information regarding contracts with insurance carriers for reimbursement of health-care services provided to patients.
    1. Any public disciplinary action taken against the applicant by the applicable regulator or the board or licensing agency of any other state or country. The applicant shall provide a copy of the action to the director at the time the application is made.
    2. Any agreement or stipulation entered into between the applicant and the regulator or the board or licensing agency of any other state or country whereby the applicant agrees to temporarily cease or restrict the applicant’s practice, or any regulator’s order restricting or suspending the applicant’s license, certification, or registration. The applicant shall provide a copy of the agreement, stipulation, or order to the director at the time the application is made.
      1. Any final action that results in an involuntary limitation or probationary status on, or a reduction, nonrenewal, denial, revocation, or suspension of, the applicant’s medical staff membership or clinical privileges at any hospital or health- care facility occurring on or after September 1, 1990. The applicant shall not be required to report a precautionary or administrative suspension of medical staff membership or clinical privileges, as defined by the director by rule, unless the applicant resigns the applicant’s medical staff membership or clinical privileges while the precautionary or administrative suspension is pending. To report the information required by this subsection (4)(d), the applicant shall complete a form developed by the director that requires the applicant to report only the following information regarding the action:
        1. The name of the facility or entity that took the action;
        2. The date the action was taken;
        3. The type of action taken, including any terms and conditions of the action;
        4. The duration of the action; and
        5. Whether the applicant has fulfilled the terms or conditions of the action, if applicable.
      2. Notwithstanding part 2 of this article 30, article 3 of title 25, and any provision of law to the contrary, the form completed by the applicant pursuant to this subsection (4)(d) is a public record and is not confidential. Compliance with this subsection (4)(d) does not constitute a waiver of any privilege or confidentiality conferred by any applicable state or federal law.
    3. Any final action of an employer that results in the applicant’s loss of employment where the grounds for termination constitute a violation of the laws governing the applicant’s practice. To report the information required by this subsection (4)(e), the applicant shall complete a form developed by the director that requires the applicant to report only the following information regarding the action:
      1. The name of the employer that terminated the employment; and
      2. The date the termination occurred or became effective.
    4. Any involuntary surrender of the applicant’s federal drug enforcement administration registration. The applicant shall provide a copy of the order requiring the surrender of the registration to the director at the time the application is made.
    5. Any final criminal conviction or plea arrangement resulting from the commission or alleged commission of a felony or crime of moral turpitude in any jurisdiction at any time after the applicant has been issued a license, certification, or registration to practice the applicant’s health-care profession in any state or country. The applicant shall provide a copy of the final conviction or plea arrangement to the director at the time the application is made.
    6. Any final judgment against, settlement entered into by, or arbitration award paid on behalf of the applicant on or after September 1, 1990, for malpractice. To report the information required by this subsection (4)(h), the applicant shall complete a form developed by the director that requires the applicant to report only the following information regarding the malpractice action:
      1. Whether the action was resolved by a final judgment against, settlement entered into by, or arbitration award paid on behalf of the applicant;
      2. The date of the judgment, settlement, or arbitration award;
      3. The location or jurisdiction in which the action occurred or was resolved; and
      4. The court in which the final judgment was ordered, the mediator that aided in the settlement, if applicable, or the arbitrator that granted the arbitration award.
    7. Any refusal by an issuer of professional liability insurance to issue a policy to the applicant due to past claims experience. The applicant shall provide a copy of the refusal to the director at the time the application is made.
  3. In addition to the information required by subsection (4) of this section, an applicant may submit information regarding awards and recognitions the applicant has received or charity care the applicant has provided. The director may remove information regarding awards and recognitions that the director finds to be unrelated to the applicant’s profession or offensive or inappropriate.
  4. The director shall make the information specified in subsections (4) and (5) of this section that is submitted by an applicant readily available to the public in a manner that allows the public to search the information by name, license number, board certification or specialty area, if applicable, or city of the applicant’s address of record. The director may satisfy this requirement by posting and allowing the ability to search the information on the director’s website or on the website for the applicable regulator that oversees the applicant’s practice. If the information is made available on either website, the director shall ensure that the website is updated at least monthly and that the date on which the update occurs is indicated on the website. If the information made available pursuant to this subsection (6) is the same or substantially similar to information the director must make available pursuant to section 12-310-103 (3), the director may elect to use this database as the exclusive means for making the information required by section 12-310-103 (3) publicly available.
  5. When disclosing information regarding an applicant to the public, the applicable regulator shall include the following statement or a similar statement that communicates the same meaning:

    Some studies have shown that there is no significant correlation between malpractice history and a [insert applicable type of health-care provider]’s competence. At the same time, the [insert name of applicable regulator] believes that consumers should have access to malpractice information. To make the best health-care decisions, you should view this information in perspective. You could miss an opportunity for high-quality care by selecting a health-care provider based solely on malpractice history. When considering malpractice data, please keep in mind:

    Malpractice histories tend to vary by profession and, as applicable, by specialty. Some professions or specialties are more likely than others to be the subject of litigation.

    You should take into account how long the health-care provider has been in practice when considering malpractice averages.

    The incident causing the malpractice claim may have happened years before a malpractice action is finally resolved. Sometimes, it takes a long time for a malpractice lawsuit to move through the legal system.

    Some health-care providers work primarily with high-risk patients. These health-care providers may have malpractice histories that are higher than average because they specialize in cases or patients who are at very high risk for problems.

    Settlement of a claim may occur for a variety of reasons that do not necessarily reflect negatively on the professional competence or conduct of the health-care provider. A payment in settlement of a malpractice action or claim should not be construed as creating a presumption that malpractice has occurred.

    You may wish to discuss information provided by the [insert name of applicable regulator], and malpractice generally, with your health-care provider.

    The information posted on the [applicable regulator’s] website was provided by applicants for a license and applicants for renewal, reinstatement, or reactivation of a license.

    1. Except as specified in subsection (8)(b) of this section, an applicant, licensee, certificate holder, or registrant shall ensure that the information required by subsection (4) of this section is current and shall report any updated information and provide copies of the required documentation to the director within thirty days after the date of the action described in said subsection (4) or as otherwise provided in the part or article of this title 12 that regulates the applicant’s, licensee’s, certificate holder’s, or registrant’s profession to ensure that the information provided to the public is as accurate as possible.
    2. An applicant shall report updated information regarding the applicant’s employer, any health-care-related business ownership interests, and any health-care-related employment contracts or contracts establishing an independent contractor relationship, as required by subsection (4)(a) of this section, within one year after a change in that information.
    1. The director may impose an administrative fine not to exceed five thousand dollars against an applicant, licensee, certificate holder, or registrant who fails to comply with this section. The director shall notify the applicable regulator when the director imposes a fine pursuant to this subsection (9). Any fine imposed pursuant to this subsection (9) shall be deposited in the general fund.
    2. The imposition of an administrative fine pursuant to this subsection (9) shall not constitute a disciplinary action pursuant to the laws governing the applicant’s, licensee’s, certificate holder’s, or registrant’s practice area and shall not preclude the applicable regulator from taking disciplinary action against an applicant, licensee, certificate holder, or registrant for failure to comply with this section. A license, certification, or registration shall not be issued, renewed, reinstated, or reactivated if the applicant has failed to pay a fine imposed pursuant to this subsection (9).
    3. Failure of an applicant, licensee, certificate holder, or registrant to comply with this section constitutes unprofessional conduct or grounds for discipline under the specific part or article of this title 12 that regulates the applicant’s, licensee’s, certificate holder’s, or registrant’s profession.
  6. Nothing in this section relieves an applicant, licensee, certificate holder, or registrant from the obligation to report adverse actions to the applicable regulator, as required by the applicable laws in this title 12 regulating that profession.
  7. The director may adopt rules, as necessary, to implement this section.
  8. This section is repealed, effective September 1, 2028. Before the repeal, the functions of the program under this section are scheduled for review in accordance with section 24-34-104.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 757, § 1, effective October 1. L. 2020: (4)(f) amended,(HB 20-1402), ch. 216, p. 1044, § 19, effective June 30; (3)(a)(XXIII) amended,(HB 20-1183), ch. 157, p. 696, § 37, effective July 1. L. 2021: (12) amended,(SB 21-097), ch. 111, p. 438, § 2, effective September 1.

Editor’s note: This section is similar to former § 24-34-110 as it existed prior to 2019.

12-30-103. Solicitation of accident victims - waiting period - definitions.

  1. Except as permitted by subsection (2) of this section, neither a health-care practitioner nor an agent of a health-care practitioner shall engage in solicitation for professional employment concerning a personal injury unless the incident for which employment is sought occurred more than thirty days before the solicitation.
  2. This section does not apply to any person providing emergency health care at the time of the incident or follow-up referrals to physicians from the emergency health-care providers.
  3. Any agreement made in violation of this section is voidable at the option of the individual suffering the personal injury or the individual’s authorized representative.
  4. As used in this section:
    1. “Health-care practitioner” means:
      1. An acupuncturist licensed under article 200 of this title 12;
      2. An audiologist licensed under article 210 of this title 12;
      3. A chiropractor licensed under article 215 of this title 12;
      4. A dentist or dental hygienist licensed under article 220 of this title 12;
      5. A massage therapist licensed under article 235 of this title 12;
      6. A physician, physician assistant, or anesthesiologist assistant licensed under article 240 of this title 12;
      7. A psychologist, social worker, marriage and family therapist, professional counselor, or addiction counselor licensed under part 3, 4, 5, 6, or 8 of article 245 of this title 12;
      8. A practical or professional nurse licensed under article 255 of this title 12;
      9. A nursing home administrator licensed under article 265 of this title 12;
      10. An occupational therapist or occupational therapy assistant licensed under article 270 of this title 12;
      11. An optometrist licensed under article 275 of this title 12;
      12. A pharmacist licensed under article 280 of this title 12;
      13. A physical therapist or physical therapist assistant licensed under article 285 of this title 12;
      14. A podiatrist licensed under article 290 of this title 12;
      15. A psychiatric technician licensed under article 295 of this title 12; or
      16. A respiratory therapist licensed under article 300 of this title 12.
    2. “Solicitation” means an initial contact initiated in person, through any form of electronic or written communication, or by telephone, telegraph, or facsimile, any of which is directed to a specific individual, unless the contact is requested by the individual, a member of the individual’s family, or the individual’s authorized representative. “Solicitation” does not include radio, television, newspaper, or yellow pages advertisements.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 764, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-29.1-102 as it existed prior to 2019.

12-30-104. Health-care prescriber boards - disciplinary procedures - definitions.

  1. As used in this section, unless the context otherwise requires:
    1. “Health-care prescriber board” or “board” means:
      1. The Colorado podiatry board created in section 12-290-105;
      2. The Colorado dental board created in section 12-220-105;
      3. The Colorado medical board created in section 12-240-105;
      4. The state board of nursing created in section 12-255-105;
      5. The state board of optometry created in section 12-275-107; and
      6. The state board of veterinary medicine created in section 12-315-106.
    2. “Licensee” means an individual who is licensed or otherwise regulated by a board.
  2. Except as specified in subsection (4) of this section, notwithstanding any other provision of law in title 24 or this title 12, each health-care prescriber board shall:
    1. Within fifteen days after receipt of a complaint, provide the complainant with a written notice providing contact information for the board and a summary of the regulatory and statutory procedures, timelines, and complainant and respondent rights that apply to the processing and resolution of complaints, including, if the complainant is the patient of the licensee who is the subject of the complaint, a notice of the patient’s right to receive from the licensee a copy of the complainant’s patient records pursuant to sections 25-1-801 and 25-1-802;
    2. If an investigation was initiated by a complaint and the board took public formal action regarding the alleged misconduct, provide the complainant, within thirty days after the action, with written notice of the action taken by the board;
    3. If a complaint is still pending after six months, notify the complainant that the complaint remains pending, subject to applicable restrictions in the board’s governing law; and
    4. Update its website within thirty days after suspending or revoking a license to separately list each licensee subject to the suspension or revocation.
  3. If patient records are potentially relevant to resolution of a complaint against a licensee and the licensee is the custodian of the records, the licensee shall provide the board with the patient records within thirty days after the board requests the records.
  4. If any provision of article 4 of title 24, part 1 of article 255 of this title 12, or article 220, 240, 275, 290, or 315 of this title 12 is more protective of complainants’ rights or results in a more expeditious resolution of disciplinary proceedings than a corresponding provision of this section, that provision applies rather than the corresponding provision of this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 766, § 1, effective October 1. L. 2020: (4) amended,(HB 20-1183), ch. 157, p. 697, § 38, effective July 1.

Editor’s note: This section is similar to former § 24-34-112 as it existed prior to 2019.

12-30-105. Nurse-physician advisory task force for Colorado health care - creation - duties - definition - repeal.

  1. There is hereby created, within the division, the nurse-physician advisory task force for Colorado health care, referred to in this section as “NPATCH”. The purpose of the NPATCH is to promote public safety and improve health care in Colorado by supporting collaboration and communication between the practices of nursing and medicine. The NPATCH shall:
    1. Promote patient safety and quality care;
    2. Address issues of mutual concern at the interface of the practices of nursing and medicine;
    3. Inform public policy-making; and
    4. Make consensus recommendations to policy-making and rule-making entities, including recommendations to the executive director.
    1. The NPATCH consists of twelve members appointed as follows:
      1. One member of the state board of nursing, appointed by the president of the board;
      2. One member of the Colorado medical board, appointed by the president of the board;
      3. Ten members appointed by the governor as follows:
        1. Three members recommended by and representing a statewide professional nursing organization;
        2. Three licensed physicians recommended by and representing a statewide physicians’ organization that represents multi-specialty physicians and whose membership includes at least one-third of the doctors of medicine and osteopathy licensed in the state;
        3. One member representing the nursing community who may or may not be a member of a statewide professional nursing organization;
        4. One member representing the physician community who may or may not be a member of a statewide physicians’ organization; and
        5. Two members representing consumers.
    2. The members of the NPATCH shall serve on a voluntary basis without compensation and shall serve three-year terms; except that, in order to ensure staggered terms of office, four of the initial appointees shall serve initial one-year terms and four of the initial appointees shall serve initial two-year terms.
    1. Except as provided in subsection (3)(b) of this section, the NPATCH may develop its own bylaws and procedures to govern its operations.
    2. A recommendation of the NPATCH requires the consensus of the members of the task force. For purposes of this section, “consensus” means an agreement, decision, or recommendation that all members of the task force can actively support and that no member actively opposes.
  2. The division shall staff the NPATCH. The division’s costs for administering and staffing the NPATCH shall be funded by an increase in fees for professional and advanced practice nursing and medical license renewal fees, as authorized in sections 12-240-130 and 12-255-107 (1)(b)(I), with fifty percent of the funding derived from the physician license renewal fees and fifty percent derived from the professional and advanced practice registered nursing fees.
  3. The NPATCH shall prioritize consideration of and make recommendations on the following topics:
    1. Repealed.
    2. Quality assurance mechanisms for all medication prescribers;
    3. Evidence-based guidelines;
    4. Decision support tools;
    5. Safe prescribing metrics for all medication prescribers;
    6. Methods to foster effective communication between health professions;
    7. Health-care delivery system integration and related improvements;
    8. Physician standards, process, and metrics to ensure appropriate consultation, collaboration, and referral regarding advanced practice registered nurse prescriptive authority; and
    9. Prescribing issues regarding providers other than physicians and advanced practice registered nurses.
  4. The NPATCH shall make recommendations pursuant to this section to the executive director.
  5. This section is repealed, effective September 1, 2027. Before the repeal, the functions of the NPATCH are scheduled for review in accordance with section 2-3-1203.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 767, § 1, effective October 1. L. 2020: (2)(a)(III)(B) and (7) amended,(HB 20-1209), ch. 189, p. 863, § 2, effective June 30; (1)(d) amended and (5)(a) and (5)(b) repealed,(HB 20-1216), ch. 190, p. 880, § 27, effective July 1.

Editor’s note: This section is similar to former § 24-34-109 as it existed prior to 2019.

Cross references:

For the legislative declaration in HB 20-1216, see section 1 of chapter 190, Session Laws of Colorado 2020.

12-30-106. Health-care work force data collection - repeal.

  1. On or before July 1, 2013, the director of the division shall implement a system to collect health-care work force data from health-care professionals who are eligible for the Colorado health service corps pursuant to part 5 of article 1.5 of title 25, from practical and professional nurses licensed pursuant to part 1 of article 255 of this title 12, and from pharmacists licensed pursuant to article 280 of this title 12, collectively referred to in this section as “health-care professionals”. Each health-care professional shall submit the data as part of the initial licensure process and upon the renewal of the health-care professional’s license. Neither an executive department nor a board in an executive department is responsible for verifying the data or disciplining a health-care professional for noncompliance with this section.
  2. The director of the division shall request each health-care professional to provide data recommended by the director of the primary care office created pursuant to section 25-1.5-403 in the department of public health and environment, in consultation with the advisory group formed pursuant to subsection (3) of this section. The director of the division has final approval authority regarding the form and manner of the data collected. The data collected concerns:
    1. Each practice address of the health-care professional;
    2. The number of hours the health-care professional provides direct patient care at each practice location;
    3. Any specialties of the health-care professional, if applicable;
    4. Information about each practice setting type;
    5. The health-care professional’s education and training related to the health- care professional’s profession; and
    6. The year of birth of the health-care professional.
      1. The director of the primary care office shall designate an advisory group comprised of:
        1. A representative of the department of regulatory agencies as determined by the executive director;
        2. The director of the division or the director’s designee;
        3. Representatives of the affected health-care professions; and
        4. Individuals with expertise in health-care work force research, analysis, and planning.
      2. The advisory group is to be convened by a nonprofit statewide membership organization that provides programs and services to enhance rural health care in Colorado.
      3. The members of the advisory group shall serve without compensation or reimbursement for actual or necessary expenses incurred in the performance of their duties.
      4. The advisory group shall recommend the structure of the data elements in subsection (2) of this section. The advisory group shall consider, but is not limited to using, the division’s existing data fields as a possible structure for the data elements recommended in this section. The director of the division has final approval authority regarding the structure of the data elements.
    1. The director of the division shall ensure that the data provided by health-care professionals is available to the primary care office in electronic format for analysis. A member of the public may request, in writing, unanalyzed data from the primary care office. Data available to the public must be limited to unique records that do not include names or other identifying information.
    2. The advisory group is repealed, effective September 1, 2022. Before the repeal, the advisory group is scheduled for review in accordance with section 2-3-1203.
  3. The director of the division may seek and accept gifts, grants, or donations from private or public sources for the purposes of this section; except that the director may not accept a gift, grant, or donation that is subject to conditions that are inconsistent with this section or any other law of the state. The director shall transmit all private and public money received through gifts, grants, or donations to the state treasurer, who shall credit the money to the division of professions and occupations cash fund created in section 12-20-105. The money in the fund is subject to annual appropriation by the general assembly to the director for the direct and indirect costs associated with implementing this section.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 769, § 1, effective October 1. L. 2020: (1) amended,(HB 20-1183), ch. 157, p. 697, § 39, effective July 1.

Editor’s note: This section is similar to former § 24-34-110.5 as it existed prior to 2019.

12-30-107. Mammography report - dense breast tissue - required notice.

  1. Each person who is required by 42 U.S.C. sec. 263b to provide a patient, the patient’s physician, or a medical institution with a mammography report and who has determined that the patient has dense breast tissue, as determined by the interpreting physician based on breast imaging reporting and data system standards promulgated by the American College of Radiology, shall include the following notice with the mammography report:Your mammogram shows that your breast tissue is dense. Dense breast tissue is common and is not abnormal. However, dense breast tissue can make it harder to evaluate the results of your mammogram and may also be associated with an increased risk of breast cancer. This information about the results of your mammogram is given to you to raise your awareness and to inform your conversations with your doctor. Together, you can decide which screening options are right for you. A report of your results was sent to your physician.
  2. Notwithstanding any other law, this section does not create a cause of action or create a standard of care, obligation, or duty that provides a basis for a cause of action.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 771, § 1, effective October 1.

Editor’s note: This section is similar to former § 12-1.5-201 as it existed prior to 2019.

12-30-108. Confidential agreement to limit practice - violation grounds for discipline.

    1. If a licensee, registrant, or certificate holder has a physical illness, physical condition, or behavioral or mental health disorder that renders the person unable to practice the applicable health-care profession or occupation with reasonable skill and safety to patients or clients, the licensee, registrant, or certificate holder shall notify the regulator that regulates the person’s profession or occupation of the physical illness, physical condition, or behavioral or mental health disorder in a manner and within a period determined by the regulator.
    2. The regulator may require the licensee, registrant, or certificate holder to submit to an examination or refer the licensee, registrant, or certificate holder to a peer health assistance program, if one exists, to evaluate the extent of the physical illness, physical condition, or behavioral or mental health disorder and its effect on the licensee’s, registrant’s, or certificate holder’s ability to practice with reasonable skill and safety to patients or clients.
    1. Upon determining that a licensee, registrant, or certificate holder with a physical illness, physical condition, or behavioral or mental health disorder is able to render limited services with reasonable skill and safety to patients or clients, the regulator may enter into a confidential agreement with the licensee, registrant, or certificate holder in which the licensee, registrant, or certificate holder agrees to limit the person’s practice based on the restrictions imposed by the physical illness, physical condition, or behavioral or mental health disorder, as determined by the regulator.
    2. As part of the agreement, the licensee, registrant, or certificate holder is subject to periodic reevaluations or monitoring as determined appropriate by the regulator. The regulator may refer the licensee, registrant, or certificate holder to a peer assistance health program, if one exists, for reevaluation or monitoring.
    3. The parties may modify or dissolve the agreement as necessary based on the results of a reevaluation or of monitoring.
  1. By entering into an agreement with the regulator pursuant to this section, the licensee, registrant, or certificate holder is not engaging in activities that constitute grounds for discipline. The agreement does not constitute a restriction or discipline by the regulator. However, if the licensee, registrant, or certificate holder fails to comply with the terms of an agreement entered into pursuant to this section, the failure constitutes grounds for discipline or unprofessional conduct, as applicable, and the licensee, registrant, or certificate holder is subject to discipline in accordance with section 12-20-404 and the part or article of this title 12 that governs the particular profession or occupation.
    1. This section does not apply to:
      1. The following health-care professionals:
        1. Repealed.
        2. Hearing aid providers regulated pursuant to article 230 of this title 12;
        3. Repealed.
        4. Nurse aides regulated pursuant to article 255 of this title 12; or
        5. Nursing home administrators regulated pursuant to article 265 of this title 12; or
        6. Repealed.
      2. A licensee, registrant, or certificate holder subject to discipline for habitual or excessive use or abuse of alcohol beverages, a habit-forming drug, or a controlled substance as defined in section 18-18-102 (5).
    2. Subsection (1)(a) of this section regarding notification for confidential agreements does not apply to:
      1. Article 275 of this title 12 concerning optometrists;
      2. Article 315 of this title 12 concerning veterinarians.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 771, § 1, effective October 1; (4)(a)(I)(F) repealed,(SB 19-153), ch. 369, p. 3379, § 9, effective October 1; (4)(a)(I)(G) repealed,(SB 19-154), ch. 169, p. 1978, § 20, effective October 1. L. 2020: (4)(a)(I)(A) repealed,(HB 20-1210), ch. 158, p. 708, § 5, effective July 1; (4)(a)(I)(C) repealed,(HB 20-1216), ch. 190, p. 865, § 4, effective July 1; (4)(a)(I)(D) amended,(HB 20-1183), ch. 157, p. 697, § 40, effective July 1. L. 2021: (4)(a)(I)(D) amended and (4)(a)(I)(H) repealed,(SB 21-092), ch. 139, p. 783, § 5, effective September 1.

Editor’s note: This section is similar to former § 12-43-221.5 as it existed prior to 2019.

Cross references:

For the legislative declaration in HB 20-1216, see section 1 of chapter 190, Session Laws of Colorado 2020.

12-30-109. Prescriptions - limitations - definition - rules.

    1. A prescriber shall not prescribe more than a seven-day supply of an opioid to a patient who has not obtained an opioid prescription from that prescriber within the last twelve months and may exercise discretion to include a second fill for a seven-day supply. The limits on initial prescribing do not apply if, in the judgment of the prescriber, the patient:
      1. Has chronic pain that typically lasts longer than ninety days or past the time of normal healing, as determined by the prescriber, or following transfer of care from another prescriber who practices the same profession and who prescribed an opioid to the patient;
      2. Has been diagnosed with cancer and is experiencing cancer-related pain;
      3. Is experiencing post-surgical pain that, because of the nature of the procedure, is expected to last more than fourteen days; or
      4. Is undergoing palliative care or hospice care focused on providing the patient with relief from symptoms, pain, and stress resulting from a serious illness in order to improve quality of life; except that this subsection (1)(a)(IV) applies only if the prescriber is a physician, a physician assistant, or an advanced practice registered nurse.
    2. Prior to prescribing the second fill of any opioid or benzodiazepine prescription pursuant to this section, a prescriber must comply with the requirements of section 12-280-404 (4). Failure to comply with section 12-280-404 (4) constitutes unprofessional conduct or grounds for discipline, as applicable, under section 12-220-201, 12-240-121, 12-255-120, 12-275-120, 12-290-108, or 12-315-112, as applicable to the particular prescriber, only if the prescriber repeatedly fails to comply.
  1. [Editor’s note: This version of subsection (2) is effective July 1, 2021, until July 1, 2023.]  A prescriber licensed pursuant to article 220 or 315 of this title 12 may prescribe opioids and benzodiazepines electronically.

    (2) [ Editor’s note: This version of subsection (2) is effective July 1, 2023. ] A prescriber licensed pursuant to article 315 of this title 12 may prescribe opioids and benzodiazepines electronically.

  2. A violation of this section does not create a private right of action or serve as the basis of a cause of action. A violation of this section does not constitute negligence per se or contributory negligence per se and does not alone establish a standard of care. Compliance with this section does not alone establish an absolute defense to any alleged breach of the standard of care.
  3. As used in this section, “prescriber” means:
    1. A dentist licensed pursuant to article 220 of this title 12;
    2. A physician or physician assistant licensed pursuant to article 240 of this title 12;
    3. An advanced practice registered nurse with prescriptive authority pursuant to section 12-255-112;
    4. An optometrist licensed pursuant to article 275 of this title 12;
    5. A podiatrist licensed pursuant to article 290 of this title 12; or
    6. A veterinarian licensed pursuant to article 315 of this title 12.
  4. Repealed.
  5. On or before November 1, 2021, the applicable board for each prescriber shall, by rule, limit the supply of a benzodiazepine that a prescriber may prescribe to a patient who has not obtained a benzodiazepine prescription from a prescriber within the last twelve months; except that the rules must not limit the supply of a benzodiazepine prescribed to treat epilepsy, a seizure or seizure disorder, a suspected seizure disorder, spasticity, alcohol withdrawal, or a neurological condition, including a posttraumatic brain injury or catatonia. The rules must allow for appropriate tapering off of benzodiazepines and must not require or encourage abrupt discontinuation or withdrawal of benzodiazepines.

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 773, § 1, effective October 1; (2) amended,(SB 19-079), ch. 86, p. 316, § 16, effective July 1, 2021; (2) amended,(SB 19-079), ch. 86, p. 316, § 17, effective July 1, 2023. L. 2020: (2) amended,(HB 20-1183), ch. 157, p. 697, § 41, effective July 1; (1)(b) amended,(HB 20-1056), ch. 64, p. 262, § 2, effective September 14. L. 2021: IP(1)(a), (1)(a)(I), (1)(a)(IV), (1)(b), (2), and IP(4) amended, (5) repealed, and (6) added,(HB 21-1276), ch. 364, p. 2398, §§ 5, 6, and 7, effective July 1.

Editor’s note: (1) This section is similar to former § 12-36-117.6 as it existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in SB 19-079. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from August 2, 2019, to October 1, 2019, see SB 19-079, chapter 86, Session Laws of Colorado 2019.

(3) Amendments to subsection (2) by sections 16 and 17 of SB 19-079 were harmonized, effective July 1, 2023.

Cross references:

For the legislative declaration in HB 21-1276, see section 1 of chapter 364, Session Laws of Colorado 2021.

12-30-110. Prescribing or dispensing opiate antagonists - authorized recipients - definitions.

    1. A prescriber may prescribe or dispense, directly or in accordance with standing orders and protocols, an opiate antagonist to:
      1. An individual at risk of experiencing an opiate-related drug overdose event;
      2. A family member, friend, or other person in a position to assist an individual at risk of experiencing an opiate-related drug overdose event;
      3. An employee or volunteer of a harm reduction organization;
      4. A law enforcement agency or first responder;
      5. A school district, school, or employee or agent of a school;
      6. A person described in section 25-20.5-1001; or
      7. A unit of local government.
    2. A law enforcement agency or first responder; an employee or volunteer of a harm reduction organization; a school district, school, or employee or agent of a school; a person described in section 25-20.5-1001; a mental health professional; or a unit of local government may, pursuant to an order or standing orders and protocols:
      1. Possess an opiate antagonist;
      2. Furnish an opiate antagonist to a family member, friend, or other person who is in a position to assist an individual who is at risk of experiencing an opiate-related drug overdose event; or
      3. Administer an opiate antagonist to an individual experiencing, or who a reasonable person would believe is experiencing, an opiate-related drug overdose event.
    1. A prescriber who prescribes or dispenses an opiate antagonist pursuant to this section is strongly encouraged to educate persons receiving the opiate antagonist on the use of an opiate antagonist for overdose, including instruction concerning risk factors for overdose, recognizing an overdose, calling emergency medical services, rescue breathing, and administering an opiate antagonist.
    2. A law enforcement agency, first responder, harm reduction organization, person described in section 25-20.5-1001, mental health professional, or unit of local government is strongly encouraged to educate employees and volunteers, as well as persons receiving an opiate antagonist from the law enforcement agency, first responder, harm reduction organization, person described in section 25-20.5-1001, mental health professional, or unit of local government, on the use of an opiate antagonist for overdose, including instruction concerning risk factors for overdose, recognizing an overdose, calling emergency medical services, rescue breathing, and administering an opiate antagonist.
  1. A prescriber described in subsection (7)(h) of this section does not engage in unprofessional conduct or is not subject to discipline pursuant to section 12-240-121, 12-255-120, or 12-280-126, as applicable, if the prescriber issues standing orders and protocols regarding opiate antagonists or prescribes or dispenses, pursuant to an order or standing orders and protocols, an opiate antagonist in a good-faith effort to assist:
    1. An individual who is at risk of experiencing an opiate-related drug overdose event;
    2. A family member, friend, or other person who is in a position to assist an individual who is at risk of experiencing an opiate-related drug overdose event; or
    3. The following persons in responding to, treating, or otherwise assisting an individual who is experiencing or is at risk of experiencing an opiate-related drug overdose event or a friend, family member, or other person in a position to assist an at-risk individual:
      1. A law enforcement agency or first responder;
      2. An employee or volunteer of a harm reduction organization;
      3. A school district, school, or employee or agent of a school;
      4. A person described in section 25-20.5-1001;
      5. A mental health professional; or
      6. A unit of local government.
    1. A prescriber who prescribes or dispenses an opiate antagonist in accordance with this section is not subject to civil liability or criminal prosecution, as specified in sections 13-21-108.7 (4) and 18-1-712 (3), respectively.
    2. A law enforcement agency or first responder; an employee or volunteer of a harm reduction organization; a school district, school, or employee or agent of a school; a person described in section 25-20.5-1001; or a unit of local government acting in accordance with this section is not subject to civil liability or criminal prosecution, as specified in sections 13-21-108.7 (3) and 18-1-712 (2), respectively.
  2. This section does not establish a duty or standard of care for prescribers regarding the prescribing, dispensing, or administering of an opiate antagonist.
  3. Nothing in this section limits or otherwise affects the prescriptive authority of a health-care professional licensed under article 220, 275, 290, or 315 of this title 12.
  4. As used in this section:
    1. “First responder” means:
      1. A peace officer, as defined in section 16-2.5-101;
      2. A firefighter, as defined in section 29-5-203 (10); or
      3. A volunteer firefighter, as defined in section 31-30-1102 (9).
    2. “Harm reduction organization” means an organization that provides services, including medical care, counseling, homeless services, or drug treatment, to individuals at risk of experiencing an opiate-related drug overdose event or to the friends and family members of an at-risk individual.
    3. “Mental health professional” means a psychologist, social worker, marriage and family therapist, licensed professional counselor, psychotherapist, or addiction counselor licensed, registered, or certified under article 245 of this title 12.
    4. “Opiate” has the same meaning as set forth in section 18-18-102 (21).
    5. “Opiate antagonist” means naloxone hydrochloride or any similarly acting drug that is not a controlled substance and that is approved by the federal food and drug administration for the treatment of a drug overdose.
    6. “Opiate-related drug overdose event” means an acute condition, including a decreased level of consciousness or respiratory depression, that:
      1. Results from the consumption or use of a controlled substance or another substance with which a controlled substance was combined;
      2. A layperson would reasonably believe to be caused by an opiate-related drug overdose event; and
      3. Requires medical assistance.
    7. “Order” has the same meaning as set forth in section 12-280-103 (31).
    8. “Pharmacist” means an individual licensed by the state pursuant to article 280 of this title 12 to engage in the practice of pharmacy.
    9. “Prescriber” means:
      1. A physician or physician assistant licensed pursuant to article 240 of this title 12;
      2. An advanced practice registered nurse, as defined in section 12-255-104 (1), with prescriptive authority pursuant to section 12-255-112; or
      3. A pharmacist.
    10. “Protocol” means a specific written plan for a course of medical treatment containing a written set of specific directions created by a physician, group of physicians, hospital medical committee, pharmacy and therapeutics committee, or other similar practitioners or groups of practitioners with expertise in the use of opiate antagonists.
    11. “School” means an elementary or secondary public or nonpublic school whose governing authority has adopted and implemented a policy pursuant to section 22-1-119.1.
    12. “Standing order” means a prescription order written by a prescriber that is not specific to and does not identify a particular patient.
    13. “Unit of local government” has the same meaning as set forth in section 29-3.5-101 (4).

History. Source: L. 2019: Entire title R&RE with relocations,(HB 19-1172), ch. 136, p. 774, § 1, effective October 1; (1)(a)(III), (1)(a)(IV), IP(1)(b), (2)(b), IP(3), (3)(c), and (4)(b) amended and (1)(a)(V), (1)(a)(VI), and (7)(i.5) added,(SB 19-227), ch. 273, p. 2583, § 14, effective October 1. L. 2020: IP(1)(b), (2)(b), (3)(c)(III), and (3)(c)(IV) amended and (3)(c)(V) and (7)(b.5) added,(HB 20-1206), ch. 304, p. 1525, § 5, effective July 14. L. 2021: (1)(a)(V), (1)(a)(VI), IP(1)(b), (2)(b), (3)(c)(IV), (3)(c)(V), and (4)(b) amended and (1)(a)(VII), (3)(c)(VI), and (7)(k) added,(SB 21-122), ch. 33, p. 135, § 1, effective April 15; IP(1)(a), (2)(a), IP(3), (4)(a), and (7)(h) amended,(SB 21-094), ch. 314, p. 1943, § 31, effective September 1.

Editor’s note: (1) Subsection (1)(a) is similar to former § 12-36-117.7 (1); subsection (1)(b) is similar to former § 12-42.5-120 (3)(d)(I); subsection (2)(a) is similar to former § 12-36-117.7 (2); subsection (2)(b) is similar to former § 12-42.5-120 (3)(d)(II); subsection (3) is similar to former § 12-36-117.7 (3); subsection (4)(a) is similar to former § 12-36-117.7 (4); subsection (4)(b) is similar to former § 12-42.5-120 (3)(d)(III); subsection (5) is similar to former § 12-36-117.7 (5); and subsection (7) is similar to former § 12-36-117.7 (6), as those sections existed prior to 2019.

(2) Before its relocation in 2019, this section was amended in SB 19-227. Those amendments were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For those amendments to the former section in effect from May 23, 2019, to October 1, 2019, see SB 19-227, chapter 273, Session Laws of Colorado 2019.

12-30-111. Electronic prescribing of controlled substances - exceptions - rules - definitions.

    1. Except as provided in subsection (1)(b) of this section, on and after July 1, 2021, a prescriber shall prescribe a controlled substance, as defined in section 18-18-102 (5), that is included in schedule II, III, or IV pursuant to part 2 of article 18 of title 18, only by electronic prescription transmitted to a pharmacy unless:
      1. At the time of issuing the prescription, electronic prescribing is not available due to technological or electrical failure;
      2. The prescription is to be dispensed at a pharmacy that is located outside of this state;
      3. The prescriber is dispensing the controlled substance to the patient;
      4. The prescription includes elements that are not supported by the most recent version of the National Council for Prescription Drug Programs SCRIPT Standard and 21 CFR 1311;
      5. The federal food and drug administration or drug enforcement administration requires the prescription for the particular controlled substance to contain elements that cannot be satisfied with electronic prescribing;
      6. The prescription is not specific to a patient and allows dispensing of the prescribed controlled substance:
        1. Pursuant to a standing order, approved protocol of drug therapy, or collaborative drug management or comprehensive medication management plan;
        2. In response to a public health emergency; or
        3. Under other circumstances that permit the prescriber to issue a prescription that is not patient-specific;
      7. The prescription is for a controlled substance under a research protocol;
      8. The prescriber writes twenty-four or fewer prescriptions for controlled substances per year;
      9. The prescriber is prescribing a controlled substance to be administered to a patient in a hospital, nursing care facility, hospice care facility, dialysis treatment clinic, or assisted living residence or to a person who is in the custody of the department of corrections;
      10. The prescriber reasonably determines that the patient would be unable to obtain controlled substances prescribed electronically in a timely manner and that the delay would adversely affect the patient’s medical condition; or
      11. The prescriber demonstrates economic hardship in accordance with rules adopted by the regulator pursuant to subsection (2)(b) of this section.
    2. A prescriber who is a licensed dentist or who is practicing in a rural area of the state or in a practice consisting of only one prescriber shall comply with this subsection (1) on and after July 1, 2023.
  1. The regulator for each prescriber subject to this section shall adopt rules:
    1. Defining what constitutes a temporary technological or electrical failure for purposes of subsection (1)(a)(I) of this section; and
    2. Defining economic hardship for purposes of subsection (1)(a)(XI) of this section and establishing:
      1. The process for a prescriber to demonstrate economic hardship, including the information required to be submitted to allow the regulator to make a determination;
      2. The period during which the economic hardship exception is effective, which period must not exceed one year; and
      3. A process for a prescriber to apply to renew an economic hardship exception, including the information required to be submitted that demonstrates the prescriber’s continuing need for the exception.
    1. This section does not:
      1. Create a private right of action;
      2. Serve as the basis of a cause of action; or
      3. Establish a standard of care.
    2. A violation of this section does not constitute negligence per se or contributory negligence per se.
  2. As used in this section:
    1. “Prescriber” means:
      1. A dentist licensed pursuant to article 220 of this title 12;
      2. A physician or physician assistant licensed pursuant to article 240 of this title 12;
      3. An advanced practice nurse with prescriptive authority pursuant to section 12-255-112;
      4. An optometrist licensed pursuant to article 275 of this title 12; or
      5. A podiatrist licensed pursuant to article 290 of this title 12.
    2. “Rural area” means a county located in a nonmetropolitan area in the state that either:
      1. Has no municipality within its territorial boundaries with fifty thousand or more permanent residents based upon the most recent population estimates published by the United States census bureau; or
      2. Satisfies alternate criteria for the designation of a rural area as may be promulgated by the federal office of management and budget.

History. Source: L. 2019: Entire section added,(SB 19-079), ch. 86, p. 316, § 18, effective October 1.

Editor’s note: This section is similar to §§ 12-32-107.7, 12-35-114.5, 12-36-117.9, 12-38-111.7, and 12-40-109.9 as added in SB 19-079. Those sections were superseded by the repeal and reenactment of this title 12, effective October 1, 2019. For the former sections in effect from August 2, 2019, to October 1, 2019, see SB 19-079, chapter 86, Session Laws of Colorado 2019.

12-30-112. Health-care providers - required disclosures - rules - definitions.

  1. For the purposes of this section and section 12-30-113:
    1. “Carrier” has the same meaning as defined in section 10-16-102 (8).
    2. “Covered person” has the same meaning as defined in section 10-16-102 (15).
    3. “Emergency services” has the same meaning as defined in section 10-16-704 (5.5)(e)(II).
    4. “Geographic area” has the same meaning as defined in section 10-16-704 (3)(d)(VI)(A).
    5. “Health benefit plan” has the same meaning as defined in section 10-16-102 (32).
    6. “Medicare reimbursement rate” has the same meaning as defined in section 10-16-704 (3)(d)(VI)(B).
    7. “Out-of-network provider” means a health-care provider that is not a “participating provider” as defined in section 10-16-102 (46).
  2. On and after January 1, 2020, health-care providers shall develop and provide disclosures to consumers about the potential effects of receiving emergency or nonemergency services from an out-of-network provider. The disclosures must comply with the rules adopted pursuant to subsection (3) of this section.
  3. The director, in consultation with the commissioner of insurance and the state board of health created in section 25-1-103, shall adopt rules that specify the requirements for health-care providers to develop and provide consumer disclosures in accordance with this section. The director shall ensure that the rules are consistent with sections 10-16-704 (12) and 25-3-121 and rules adopted by the commissioner pursuant to section 10-16-704 (12)(b) and by the state board of health pursuant to section 25-3-121 (2). The rules must specify, at a minimum, the following:
    1. The timing for providing the disclosures for emergency and nonemergency services with consideration given to potential limitations relating to the federal “Emergency Medical Treatment and Labor Act”, 42 U.S.C. sec. 1395dd;
    2. Requirements regarding how the disclosures must be made, including requirements to include the disclosures on billing statements, billing notices, or other forms or communications with consumers;
    3. The contents of the disclosures, including the consumer’s rights and payment obligations pursuant to the consumer’s health benefit plan;
    4. Disclosure requirements specific to health-care providers, including whether a health-care provider is out of network, the types of services an out-of-network health- care provider may provide, and the right to request an in-network health-care provider to provide services; and
    5. Requirements concerning the language to be used in the disclosures, including use of plain language, to ensure that carriers, health-care facilities, and health- care providers use language that is consistent with the disclosures required by this section and sections 10-16-704 (12) and 25-3-121 and the rules adopted pursuant to this subsection (3) and sections 10-16-704 (12)(b) and 25-3-121 (2).
  4. Receipt of the disclosures required by this section does not waive a consumer’s protections under section 10-16-704 (3) or (5.5) or the consumer’s right to benefits under the consumer’s health benefit plan at the in-network benefit level for all covered services and treatment received.
  5. This section does not apply to service agencies, as defined in section 25-3.5-103 (11.5), that are publicly funded fire agencies.

History. Source: L. 2019: Entire section added, (HB 19-1174), ch. 171, p. 1995, § 8, effective January 1, 2020.

12-30-113. Out-of-network health-care providers - out-of-network services - billing - payment.

  1. If an out-of-network health-care provider provides emergency services or covered nonemergency services to a covered person at an in-network facility, the out-of-network provider shall:
    1. Submit a claim for the entire cost of the services to the covered person’s carrier; and
    2. Not bill or collect payment from a covered person for any outstanding balance for covered services not paid by the carrier, except for the applicable in-network coinsurance, deductible, or copayment amount required to be paid by the covered person.
    1. If an out-of-network health-care provider provides covered nonemergency services at an in-network facility or emergency services at an out-of-network or in-network facility and the health-care provider receives payment from the covered person for services for which the covered person is not responsible pursuant to section 10-16-704 (3)(b) or (5.5), the health-care provider shall reimburse the covered person within sixty calendar days after the date that the overpayment was reported to the provider.
    2. An out-of-network health-care provider that fails to reimburse a covered person as required by subsection (2)(a) of this section for an overpayment shall pay interest on the overpayment at the rate of ten percent per annum beginning on the date the provider received the notice of the overpayment. The covered person is not required to request the accrued interest from the out-of-network health-care provider in order to receive interest with the reimbursement amount.
  2. An out-of-network health-care provider shall provide a covered person a written estimate of the amount for which the covered person may be responsible for covered nonemergency services within three business days after a request from the covered person.
    1. An out-of-network health-care provider must send a claim for a covered service to the carrier within one hundred eighty days after the receipt of insurance information in order to receive reimbursement as specified in this subsection (4)(a). The reimbursement rate is the greater of:
      1. One hundred ten percent of the carrier’s median in-network rate of reimbursement for that service provided in the same geographic area; or
      2. The sixtieth percentile of the in-network rate of reimbursement for the same service in the same geographic area for the prior year based on claims data from the all-payer health claims database described in section 25.5-1-204.
    2. If the out-of-network health-care provider submits a claim for covered services after the one-hundred-eighty-day period specified in subsection (4)(a) of this section, the carrier shall reimburse the health-care provider one hundred twenty-five percent of the medicare reimbursement rate for the same services in the same geographic area.
    3. The health-care provider shall not bill a covered person any outstanding balance for a covered service not paid for by the carrier, except for any coinsurance, deductible, or copayment amount required to be paid by the covered person.
  3. A health-care provider may initiate arbitration pursuant to section 10-16-704 (15) if the health-care provider believes the payment made pursuant to subsection (4) of this section is not sufficient.

History. Source: L. 2019: Entire section added,(HB 19-1174), ch. 171, p. 1997, § 8, effective January 1, 2020. L. 2020: (4)(a) amended,(SB 20-043), ch. 21, p. 78, § 2, effective March 11.

Cross references:

  1. For definitions applicable to this section, see § 12-30-112.
  2. For the legislative declaration in SB 20-043, see section 1 of chapter 78, Session Laws of Colorado 2020.

12-30-114. Demonstrated competency - opiate prescribers - rules - definition.

    1. The applicable licensing board for each licensed health-care provider, in consultation with the center for research into substance use disorder prevention, treatment, and recovery support strategies created in section 27-80-118, shall promulgate rules that require each licensed health-care provider, as a condition of renewing, reactivating, or reinstating a license on or after October 1, 2022, to complete up to four credit hours of training per licensing cycle in order to demonstrate competency regarding: Best practices for opioid prescribing, according to the most recent version of the division’s guidelines for the safe prescribing and dispensing of opioids; the potential harm of inappropriately limiting prescriptions to chronic pain patients; best practices for prescribing benzodiazepines; recognition of substance use disorders; referral of patients with substance use disorders for treatment; and the use of the electronic prescription drug monitoring program created in part 4 of article 280 of this title 12.
    2. The rules promulgated by each board shall exempt a licensed health-care provider who:
      1. Maintains a national board certification that requires equivalent substance use prevention training; or
      2. Attests to the appropriate board that the health-care provider does not prescribe opioids.
  1. For the purposes of this section, “licensed health-care provider” includes a physician, physician assistant, podiatrist, dentist, advanced practice nurse with prescriptive authority, optometrist, and veterinarian licensed pursuant to this title 12.

History. Source: L. 2019: Entire section added,(SB 19-228), ch. 276, p. 2609, § 14, effective October 1. L. 2021: (1)(a) amended,(HB 21-1276), ch. 364, p. 2399, § 8, effective July 1.

Cross references:

For the legislative declaration in HB 21-1276, see section 1 of chapter 364, Session Laws of Colorado 2021.

12-30-115. Required disclosure to patients - conviction of or discipline based on sexual misconduct - signed agreement to treatment - exceptions - violation grounds for discipline - rules - definitions.

  1. As used in this section:
    1. “Patient” means a person who is seeking or receiving health care services from a provider. The term includes the parent, legal guardian, or custodian of a patient who is a minor under eighteen years of age or a patient who lacks the legal capacity to consent.
    2. “Provider” means a licensee, certificate holder, or registrant who is subject to the requirements of section 12-30-102.
  2. On or after March 1, 2021, a provider shall disclose to patients any:
    1. Final conviction of or acceptance of a guilty plea by a court for a sex offense, as defined in section 16-11.7-102 (3); or
    2. Final agency action by a regulator that results in probationary status or other limitation on the provider’s ability to practice the provider’s health care profession when the final agency action is based in whole or in part on any of the following:
      1. A conviction of or acceptance of a guilty plea by a court for a sex offense, as defined in section 16-11.7-102 (3), or a finding that the provider committed a sex offense as defined in said section; or
      2. A finding that the provider engaged in unprofessional conduct or other conduct that is grounds for discipline under the part or article of this title 12 that regulates the provider’s health care profession, where the failure or conduct is related to, includes, or involves sexual misconduct that results in harm to a patient or presents a significant risk of public harm to patients.
    1. Except as provided in subsection (4) of this section, a provider shall provide the disclosure specified in subsection (2) of this section to the patient in writing, in the form and manner specified by the regulator by rule, before providing professional services to the patient.
    2. For a disclosure of final agency action, the provider shall include the following information, at a minimum, in the written disclosure:
      1. The type, scope, and duration of the agency action imposed, including whether:
        1. The regulator and provider entered into a stipulation;
        2. The agency action resulted from an adjudication decision;
        3. The provider was placed on probation and, if so, the duration and terms of the probation; and
        4. The regulator imposed any limitations on the provider’s practice and, if so, a description of the specific limitations and the duration of the limitations;
      2. The nature of the offense or conduct, including the grounds for probation or practice limitations specified in the final agency action;
      3. The date the final agency action was issued;
      4. The date the probation status or practice limitation ends; and
      5. The contact information for the regulator that imposed the agency action on the provider for the patient to obtain additional information, including information on how to file a complaint.
    3. For a disclosure of a final conviction of or acceptance of a guilty plea by a court for a sex offense, as defined in section 16-11.7-102 (3), the provider shall include the following information, at a minimum, in the written disclosure:
      1. The date that the final judgment of conviction or acceptance of a guilty plea was entered;
      2. The nature of the offense or conduct that led to the final conviction or guilty plea;
      3. The type, scope, and duration of the sentence or other penalty imposed as a result of the final conviction or guilty plea, including whether:
        1. The provider entered a guilty plea or was convicted pursuant to a criminal adjudication; and
        2. The provider was placed on probation and, if so, the duration and terms of the probation and the date the probation ends; and
      4. The jurisdiction that imposed the final conviction or issued an order approving the guilty plea.
    4. Before treating a patient after a final conviction, guilty plea, or final agency action described in subsection (2) of this section has been imposed or accepted by a court, as applicable, the provider shall obtain the patient’s agreement to treatment and acknowledgment of receipt of the disclosure in a form prescribed by the regulator by rule and signed by the provider and the patient. The patient’s acknowledgment of receipt of the disclosure does not waive any future claims against the provider.
    5. If a provider is placed on probation as part of a final conviction or acceptance of a guilty plea by a court for a sex offense, as defined in section 16-11.7-102 (3), or on probationary status or other limitation on the provider’s ability to practice pursuant to a final agency action described in subsection (2) of this section, the requirement to disclose the conviction, guilty plea, or agency action ends when the provider has satisfied the requirements of the probation or other limitation and is no longer on probation or otherwise subject to a limitation on the ability to practice the provider’s profession.
    1. A provider need not make the disclosure required by this section before providing professional services to a patient if any of the following applies:
      1. The patient is unconscious or otherwise unable to comprehend the disclosure and sign an acknowledgment of receipt of the disclosure pursuant to subsection (3)(d) of this section and a guardian of the patient is unavailable to comprehend the disclosure and sign the acknowledgment;
      2. The visit occurs in an emergency room or freestanding emergency department or the visit is unscheduled, including consultations in inpatient facilities; or
      3. The provider who will be treating the patient during the visit is not known to the patient until immediately prior to the start of the visit.
    2. A provider who does not have a direct treatment relationship or have direct contact with the patient is not required to make the disclosure required by this section.
    1. Failure to comply with the requirements of this section:
      1. Constitutes unprofessional conduct or grounds for discipline, as applicable, under the article or part of this title 12 that regulates the provider’s health care profession; and
      2. Does not create a private right of action.
    2. Nothing in this section prevents the discovery of records, reports, or other information, or the admissibility of evidence, related to a provider’s failure to comply with the requirements of this section in any civil, criminal, or administrative proceeding.

History. Source: L. 2020: Entire section added, (SB 20-102), ch. 153, p. 656, § 1, effective September 14.

12-30-116. Protection for administering medical marijuana at school.