DAR File No. 27946

Commerce, Real Estate

R162-109

Administrative Proceedings

NOTICE OF PROPOSED RULE

DAR File No.: 27946
Filed: 06/01/2005, 08:45
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Utah Division of Real Estate and the Utah Appraiser Licensing and Certification Board have decided to conduct disciplinary proceedings as informal adjudicative proceedings instead of formal adjudicative proceedings. The Division of Real Estate wishes to delete obsolete references to registered appraisers from the rule and to add procedures for informal adjudicative proceedings.

Summary of the rule or change:

The changes are: 1) disciplinary proceedings are changed from formal adjudicative proceedings (which have been conducted by an Administrative Law Judge) to informal adjudicative proceedings conducted before the Utah Appraiser Licensing and Certification Board with the Board having the option of delegating the hearing to an Administrative Law Judge or involving an Administrative Law Judge to assist the Board in conducting the hearings; 2) technical corrections are made to delete obsolete references to registered appraisers, while retaining references to registration of expert witnesses, and to specify procedures for the issuance of temporary permits; 3) a new subsection is added specifying the proceedings in which hearings will be required; and 4) a new subsection specifying the procedures for informal adjudicative procedures is added.

State statutory or constitutional authorization for this rule:

Section 61-2b-30

Anticipated cost or savings to:

the state budget:

None--The only State agency that would be impacted would be the Division of Real Estate. The Division of Real Estate anticipates that there will be no significant cost or savings in its budget by conducting more informal adjudicative proceedings that are subject to de novo review instead of formal adjudicative proceedings that are subject to a review on the record.

local governments:

None--The rules on administrative proceedings before the Utah Appraiser Licensing and Certification Board do not impact local government.

other persons:

It is anticipated that persons who are the subject of proceedings before the Utah Appraiser Licensing and Certification Board will save money because the proceedings will be informal proceedings as opposed to formal proceedings. It is unknown whether the appeal from an informal proceeding, which is a trial de novo in District Court, will cost these persons money or save them money as compared to the cost of an appeal from a formal proceeding, which is a review on the record of what occurred at the agency level. Therefore, the costs or savings to those persons cannot be determined or quantified.

Compliance costs for affected persons:

As set forth above under "Other persons", it is unknown whether the change from formal proceedings to informal proceedings for disciplinary actions will cost the persons involved in those proceedings any money, or whether the change will save them money.

Comments by the department head on the fiscal impact the rule may have on businesses:

No fiscal impact to businesses is anticipated as a result of this rule filing; only the regulated industry will be affected by the procedures followed by the agency in its adjudicative proceedings. Russell C. Skousen, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Shelley Wismer at the above address, by phone at 801-530-6761, by FAX at 801-530-6749, or by Internet E-mail at swismer@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/15/2005

This rule may become effective on:

07/16/2005

Authorized by:

Dexter Bell, Director

RULE TEXT

R162. Commerce, Real Estate.

R162-109. Administrative Proceedings.

R162-109-1. Formal Adjudicative Proceedings.

109.1. [Any adjudicative proceeding as to the following matters shall be conducted on a formal basis:

109.1.1. the revocation, suspension, or placing on probation of an appraiser registration, license, certification, or temporary permit;

109.1.2. the revocation, suspension, or placing on probation of certification of appraisal courses, schools, or instructors;

109.1.3. the imposition of a fine or a remedial education requirement against the holder of a registration, license, certificate or temporary permit;

109.1.4 the imposition of a fine or a remedial education requirement against a certified appraisal school or instructor;

109.1.5. ]A[a]ny proceedings conducted subsequent to the issuance of a cease and desist order or other emergency order shall be conducted as formal adjudicative proceedings.

R162-109-2. Informal Adjudicative Proceedings.

109.2.1 Proceedings in which the Division seeks disciplinary action pursuant to U.C.A. Section 61-2b-29 against a licensed or certified appraiser shall be conducted as informal adjudicative proceedings.

109.2.2 Proceedings on original applications for licensure or certification, or renewal applications for licensure or certification, as an appraiser, or for certification of appraisal courses, schools, or instructors, and all proceedings on applications for a temporary permit or registration as an expert witness, shall be conducted as informal adjudicative proceedings.

109.2.[1]3. All adjudicative proceedings as to any other matters not specifically designated as formal adjudicative proceedings shall be conducted as informal adjudicative proceedings.

109.2.[2]4. A hearing will be held in an informal adjudicative proceeding only if required or permitted by the Appraiser Licensing and Certification Act or these rules.[

109.2.3. A party is not required to file a written answer to a notice of agency action from the Division in an informal adjudicative proceeding.

109.2.4. All proceedings on original applications for licensure or certification or renewal applications for registration, licensure or certification as an appraiser, or for certification of appraisal courses, schools, or instructors, and all proceedings on applications for a temporary permit or registration as an expert witness will be conducted as informal adjudicative proceedings.]

109.2.5. [All a]Application forms which shall be filled out and submitted to the Division for registration as an expert witness, licensure or certification as an appraiser, or for certification of courses, schools, or instructors, and all applications for a temporary permit shall be deemed a request for agency action pursuant to the Utah Administrative Procedures Act, Section 63-46b-1, et seq.

109.2.5.1. Upon receipt of an application, the Division shall:

(a) issue and mail a [registration, ]license, certification, [or ]temporary permit, or registration as an expert witness, which shall be deemed notification that the application is granted;

(b) notify the applicant that the application is incomplete and that further information is needed;

(c) notify the applicant that a hearing shall be scheduled before the Utah Appraiser Licensing and Certification Board for the purpose of determining the applicant's fitness for [registration,]appraiser licensure[,] or certification, or issuance to the applicant of a temporary permit; or

(d) notify the applicant that the application is denied, and, if the proceeding is one in which a hearing is permitted, that he may request a hearing to challenge the denial.

109.2.6. Other Requests for Agency Action

109.2.6.1. [All o]Other requests for agency action shall be in writing and signed by the requestor, and shall contain the following:

(a) the names and addresses of all persons to whom a copy of the request for agency action is being sent;

(b) the agency's file number or other reference number, if known;

(c) the date of mailing of the request for agency action;

(d) a statement of the legal authority and jurisdiction under which the agency action is requested, if known;

(e) a statement of the relief or action sought from the Division; and

(f) a statement of the facts and reasons forming the basis for relief or agency action.

109.2.6.2. Upon receipt of a request for agency action other than an application for registration, licensure or certification, the Division shall:

(a) notify the requestor in writing that the request is granted;

(b) notify the requestor that the request is incomplete and that further information is needed before the Division is able to make a determination on the request;

(c) notify the requestor that the Division does not have the legal authority or jurisdiction to grant the relief requested or the action sought; or

(d) notify the requestor that the request is denied, and, if the proceeding is one in which a hearing is permitted, that he may request a hearing to challenge the denial.

109.2.6.3. A complaint against an appraiser[, a registered expert witness,] or the holder of a temporary permit requesting that the Division commence an investigation or a disciplinary action is not a request for agency action.

R162-109-3. Hearings Not Required.

109.3. A hearing is not required and will not be held in the following informal adjudicative proceedings:

109.3.1. The issuance, renewal or reinstatement of an appraiser [registration, ]license or certification;

109.3.2. The issuance or renewal of an appraisal course, school, or instructor certification;

109.3.3. The issuance of any interpretation of statute, rule or order, or the issuance of any written opinion or declaratory order determining the applicability of a statute, rule or order, when enforcement or implementation of the statute, rule or order lies within the jurisdiction of the Division; or

109.3.4. The denial of renewal or reinstatement of an appraiser [registration, ]license or certification for failure to complete any continuing education required by Section 61-2b-40.

R162-109-4. Hearings Permitted.

109.4.1. In the following informal adjudicative proceedings, a hearing will be held only if requested in writing by a party within [30] 20 days from the date a notice of agency action or the Division's response to a request for agency action is mailed:

109.4.1.1. The denial of an application for certification as an instructor on the grounds that his attestation to upstanding moral character is false;

109.4.1.2. The denial of an application for an initial appraiser license or certification due to insufficient education or experience, as determined by the appropriate review committee appointed by the Appraiser Licensing and Certification Board; or

109.4.1.3 The denial of an application for a temporary permit.

109.4.2. A request by a party for a hearing shall include the grounds upon which relief is requested.

109.4.3. [All h]Hearings permitted by this rule will be before the Utah Appraiser Licensing and Certification Board.

R162-109-5. Hearings Required.

109.5.1 Hearings will be held in all proceedings in which the Division seeks to deny an application for original or renewed licensure or certification for failure of the applicant to meet the criteria of good moral character, honesty, integrity or truthfulness.

109.5.2 Hearings will be held in all proceedings conducted subsequent to the issuance of a cease and desist order or other emergency order.

109.5.3 Hearings will be held in all proceedings in which the Division seeks disciplinary action pursuant to U.C.A. Section 61-2b-29 against a licensed or certified appraiser.

[R162-109-5.]R162-109-6. Procedures for Hearings in Informal Adjudicative Proceedings.

109.6.1 The procedures to be followed in all informal adjudicative proceedings shall be as set forth in Title 63, Chapter 46b, Utah Administrative Procedures Act, the Department of Commerce Administrative Procedures Act Rules, Utah Administrative Code Section R151-46b, and in this Section R162-109-6.

109.6.2 Notice of Agency Action and Petition. The Division shall commence a proceeding for disciplinary action pursuant to U.C.A. Section 61-2b-29 by the filing and service of a Notice of Agency Action and a Petition setting forth the allegations made by the Division.

109.6.3 Answer. The presiding officer may, upon a determination of good cause, require a person against whom a disciplinary proceeding has been initiated pursuant to U.C.A. Section 61-2b-29 to file an Answer to the Petition by ordering in the Notice of Agency Action that the respondent shall file an Answer with the Division. All Answers are required to be filed with the Division within thirty days of the mailing date of the Notice of Agency Action and Petition.

109.6.4 Assistance of Administrative Law Judge. In any proceeding under this subsection, the Board may delegate the hearing to an Administrative Law Judge or may request that an Administrative Law Judge assist the Board in conducting the hearing.

109.6.5[109.5.1.] Notice of hearing. Upon the scheduling of a [license application ]hearing by the Division or upon receipt of a timely request for a hearing where [other ]hearings are permitted, the Division shall mail written notice of the date, time, and place scheduled for the hearing at least ten days prior to the hearing.

109.6.6[109.5.2.] Discovery is prohibited, but the Division may issue subpoenas or other orders to compel production of necessary evidence. All parties shall have access to the Division's files and to all materials and information gathered in any investigation to the extent permitted by law.

109.6.7[109.5.3.] Intervention is prohibited.

109.6.8[109.5.4.] Hearings shall be open to all parties, except that a hearing on an applicant's fitness for [registration, ]licensure or certification [shall]may be conducted in a closed session which is not open to the public if the presiding officer closes the hearing pursuant to Title 63, Chapter 46b, the Utah Administrative Procedures Act or Title 52, Chapter 4, the Open and Public Meetings Act. The parties named in the Notice of Agency Action or the Request for Agency Action may be represented by counsel and shall have the opportunity to testify, present witnesses and other evidence, and comment on the issues.

109.6.9[109.5.5.] Within a reasonable time after the hearing, the presiding officer shall cause to be issued and mailed to the parties a signed order in writing based on the facts appearing in the agency's files and on the facts presented in evidence at the hearing. The order shall state the decision and the reasons [therefor]for the decision, and a notice of the right of administrative review and judicial review available to the parties including applicable time limits.

109.6.10[109.5.6.] The Division may, but shall not be required to, record the hearing. If a record has been made, any party, at his own expense, may have a reporter approved by the Division prepare a transcript from the Division's record of the proceedings.

KEY: real estate appraisal

[July 16, 1999]2005

Notice of Continuation June 3, 2002

61-2b-30

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For questions regarding the content or application of this rule, please contact Shelley Wismer at the above address, by phone at 801-530-6761, by FAX at 801-530-6749, or by Internet E-mail at swismer@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.