Did SB 2647 strip the Mississippi Real Estate Commission of its power to discipline licensees who violate Section 73-35-21?

Subject

Mississippi Real Estate Commission's Authority After SB 2647

Recipient

Robert E. Praytor, Administrator, Mississippi Real Estate Commission

Plain-English summary

In 2023, the Mississippi Legislature added Subsection (6) to Section 73-35-21 (the statute that lists the conduct for which the Mississippi Real Estate Commission can revoke or suspend a real estate license). The new subsection says MREC "shall not promulgate any rule or regulation, nor make any administrative or other interpretation, whereby any real estate licensee may be held responsible or subject to discipline or other actions" relating to that section or to the seller's property disclosure requirements at Sections 89-1-501 through 89-1-523.

MREC's administrator asked: did Subsection (6) strip MREC of the power to discipline licensees for the violations in Subsection (1)? The AG's answer is no. Subsection (6) limits MREC's rulemaking and administrative interpretation; it prevents MREC from promulgating its own rules in contradiction of the statute and from interpreting its way into disciplining a licensee on those subjects. But the Subsection (1) list of disciplinable acts (a through n) remains in force, and the AG concluded MREC can still refuse, suspend, or revoke a license when a licensee commits one of those statutory violations. The AG also stated that the factual determination MREC must make to decide whether conduct fits within Subsection (1) neither violates nor is prohibited by Subsection (6).

What this means for you

Real estate licensees and brokers

The opinion holds that MREC may still refuse, suspend, or revoke a license for the violations listed in Section 73-35-21(1)(a) through (n); those grounds were not repealed. What Subsection (6) bars is MREC promulgating new rules or interpretations to discipline licensees on the subjects of Section 73-35-21 or the seller-disclosure statutes.

MREC staff

The opinion holds that the Subsection (1) disciplinary grounds remain enforceable and that making the factual determination of whether conduct fits Subsection (1) does not violate Subsection (6). What Subsection (6) prohibits is creating disciplinary exposure through rulemaking or administrative interpretation relating to Section 73-35-21 or the seller-disclosure statutes (Sections 89-1-501 through 89-1-523).

Real estate attorneys

The opinion distinguishes statutory disciplinary grounds (Subsection (1), still in force) from MREC rulemaking and interpretation (limited by Subsection (6)). Under the opinion, MREC's authority to discipline rests on the Subsection (1) grounds, not on rules or interpretations relating to Section 73-35-21 or the seller-disclosure statutes.

Property buyers and sellers

The opinion addresses MREC's authority, not the seller-disclosure statutes themselves. It notes Subsection (6) limits MREC's rulemaking and interpretation relating to the disclosure requirements at Sections 89-1-501 through 89-1-523; it does not state that those statutes were changed.

Common questions

What did SB 2647 do?
Effective March 14, 2023, it added Subsection (6) to Section 73-35-21, barring MREC from promulgating rules or making administrative or other interpretations that would subject a licensee to discipline relating to that section or to the seller-disclosure requirements in Sections 89-1-501 through 89-1-523.

Can MREC still discipline a licensee?
Yes, for the acts listed in Section 73-35-21(1)(a) through (n). The opinion holds Subsection (6) did not repeal that power.

Can MREC still investigate and make findings?
The opinion states that the factual determination MREC must make to decide whether a licensee's conduct fits within Subsection (1) neither violates nor is prohibited by Subsection (6).

What exactly does Subsection (6) restrict?
It restricts MREC's rulemaking and administrative or other interpretation relating to Section 73-35-21 or the seller-disclosure requirements in Sections 89-1-501 through 89-1-523; the opinion describes it as preventing MREC from promulgating its own rules in contradiction of the 2023 amendments.

Background and statutory framework

Section 73-35-21(1) gives MREC the "full power to refuse a license for cause or to revoke or suspend a license where it has been obtained by false or fraudulent representation, or where the licensee in performing or attempting to perform any of the acts mentioned herein, is deemed to be guilty of" the listed acts in Subsections (a) through (n).

SB 2647 (effective March 14, 2023) added Subsection (6): "The Mississippi Real Estate Commission shall not promulgate any rule or regulation, nor make any administrative or other interpretation, whereby any real estate licensee may be held responsible or subject to discipline or other actions by the commission relating to the provisions of this section or the information required to be disclosed by Sections 89-1-501 through 89-1-523 or delivery of information required to be disclosed by Sections 89-1-501 through 89-1-523."

The AG read these provisions as complementary. Subsection (1) keeps its statutory force as the grounds for discipline. Subsection (6) limits MREC's regulatory and interpretive authority over the same subject matter, while MREC's ability to make the factual findings needed to apply Subsection (1) is preserved.

Citations

• Miss. Code Ann. § 73-35-21(1) (real estate license discipline grounds, subsections (a)-(n))
• Miss. Code Ann. § 73-35-21(6) (limit on MREC rulemaking and interpretation)
• Miss. Code Ann. §§ 89-1-501 through 89-1-523 (seller property disclosure requirements)
• 2023 Mississippi Senate Bill 2647 (effective March 14, 2023)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/07/R.Praytor-July-20-2023-Mississippi-Real-Estate-Commissions-Authority.pdf

Original opinion text

July 20, 2023

Robert E. Praytor
Administrator, Mississippi Real Estate Commission
Post Office Box 12685
Jackson, Mississippi 39236
Re:

Mississippi Real Estate Commission's Authority

Dear Mr. Praytor:
The Office of the Attorney General has received your request for an official opinion.
Question Presented

Does the language of Mississippi Code Annotated Section 73-35-21(6) remove the Mississippi
Real Estate Commission's ("MREC") authority to discipline or take other action against a real
estate licensee for the specific, statutorily described violations enumerated in Section 73-35-21(1)(a)-(n)?
Brief Response
Section 73-35-21(6) does not repeal the MREC's power to refuse, suspend, or revoke a license
under Section 73-35-21(1) for the acts listed in Subsections (1)(a)-(n).
Applicable Law and Discussion
Section 73-35-21(1) grants the MREC the "full power to refuse a license for cause or to revoke or
suspend a license where it has been obtained by false or fraudulent representation, or where the
licensee in performing or attempting to perform any of the acts mentioned herein, is deemed to be
guilty of" any of the prescribed violations in Subsections (a) through (n). Effective March 14,
2023, the following language was added to Section 73-35-21 as Subsection (6):
The Mississippi Real Estate Commission shall not promulgate any rule or
regulation, nor make any administrative or other interpretation, whereby any real
estate licensee may be held responsible or subject to discipline or other actions by
the commission relating to the provisions of this section or the information required
to be disclosed by Sections 89-1-501 through 89-1-523 or delivery of information
required to be disclosed by Sections 89-1-501 through 89-1-523.
(emphasis added).
Subsection (6) does not repeal the MREC's power to refuse, suspend, or revoke a license under
Subsection (1) for the acts listed therein. Rather, it prevents the MREC from promulgating its own
rules and regulations in contradiction of the statutory amendments put forth by 2023 Mississippi
Senate Bill No. 2647. Subsection (6) likewise prevents the MREC from making any administrative
or other interpretation to hold any real estate licensee responsible or subject to discipline or other
action by the commission relating to either the provisions of Section 73-35-21 or the disclosures
and subsequent delivery in Sections 89-1-501 through 89-1-523. Accordingly, it is the opinion of
this office that the MREC may still refuse, revoke, or suspend licenses for the specified acts in
Section 73-35-21(1). Finally, we note that the factual determination necessary for the MREC to
determine whether a licensee's conduct fits within the purview of the acts set forth in Subsection
(1) neither violates nor is prohibited by Subsection (6).
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General