File No. 34203
This rule was published in the November 15, 2010, issue (Vol. 2010, No. 22) of the Utah State Bulletin.
Commerce, Real Estate
Notice of Proposed Rule
DAR File No.: 34203
Filed: 11/01/2010 03:54:36 PM
Purpose of the rule or reason for the change:
The substantive elements of this rule have been incorporated into the proposed new Rule R162-2f. Therefore, this rule is no longer needed. (DAR NOTE: The proposed new Rule R162-2f is under DAR No. 34191 in this issue, November 15, 2010, of the Bulletin.)
Summary of the rule or change:
The rule is repealed in its entirety.
State statutory or constitutional authorization for this rule:
- Subsection 61-2f-103(1)(a)
Anticipated cost or savings to:
the state budget:
Where the substantive provisions of this rule are incorporated into the proposed new Rule R162-2f, no fiscal impact to the state budget is anticipated from this filing.
Where the substantive provisions of this rule are incorporated into the proposed new Rule R162-2f, no fiscal impact to local governments is anticipated from this filing.
Where the substantive provisions of this rule are incorporated into the proposed new Rule R162-2f, no fiscal impact to small businesses is anticipated from this filing.
persons other than small businesses, businesses, or local governmental entities:
Where the substantive provisions of this rule are incorporated into the proposed new Rule R162-2f, no fiscal impact to affected persons is anticipated from this filing.
Compliance costs for affected persons:
In repealing this rule, the division and commission relieve affected persons of any obligation to comply with it. There are no compliance costs.
Comments by the department head on the fiscal impact the rule may have on businesses:
No fiscal impact to businesses is anticipated from this rule repeal as the substance of these provisions is contained in the new Rule R162-2f proposed by the Division.
Francine A. Giani, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:Commerce
160 E 300 S
SALT LAKE CITY, UT 84111-2316
Direct questions regarding this rule to:
- Jennie Jonsson at the above address, by phone at 801-530-6706, by FAX at 801-526-4387, or by Internet E-mail at firstname.lastname@example.org
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:
This rule may become effective on:
Deanna Sabey, Director
R162. Commerce, Real Estate.
R162-10. Administrative Procedures.
R162-10-1. Formal Adjudicative Proceedings. 10.1. Any adjudicative proceeding as to the following
matters shall be conducted as a formal adjudicative
10.1.1. The revocation or suspension of any registration
issued pursuant to the Time Share and Camp Resort Act, or the
imposition of a fine against the registrant.
10.1.2. The revocation or suspension of any registration
issued pursuant to the Utah Uniform Land Sales Practices Act, or
the imposition of a fine against the registrant.
10.1.3. Any proceedings conducted subsequent to the
issuance of cease and desist orders.
R162-10-2. Informal Adjudicative Proceedings. 10.2. Any adjudicative proceedings as to the following
matters shall be conducted on an informal basis:
10.2.1. The issuance of a real estate license, the
renewal of an active, inactive or expired license, or the
activation of an inactive license.
10.2.2. Any action on a sales agent's license based
upon the revocation or suspension of a principal broker's
license or the failure of the principal broker to renew his
10.2.3. The issuance of renewal or certification of real
estate schools or instructors.
10.2.4. The revocation of a real estate license due to
payment made from the Real Estate Recovery Fund.
10.2.5. The issuance or renewal of registration pursuant
to the Land Sales Practices Act.
10.2.6. The exemption from, or the amendment of,
registration pursuant to the Land Sales Practices Act.
10.2.7. The issuance or renewal of any registration
pursuant to the Time Share and Camp Resort Act.
10.2.8. Any waiver of, or exemption from, registration
requirements pursuant to the Time Share and Camp Resort
10.2.9. The issuance of any 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 of Real Estate.
10.2.10. The post-revocation hearing following the
revocation of license pursuant to Utah Code Section
61-2-9(1)(e)(i) for failure to accurately disclose a criminal
10.2.11. A hearing on whether or not a licensee or
certificate holder whose license or certificate was issued or
renewed on probationary status has violated the condition of that
10.2.12. Except as provided in Section 63G-4-502, a
disciplinary action commenced by the Division following
investigation of a complaint.
R162-10-3. Proceedings Not Designated. 10.3. All adjudicative proceedings as to any other
matters not specifically listed herein shall be conducted on an
R162-10-4. Hearings Required in Informal Adjudicative
Proceedings. 10.4.1 A post-revocation hearing will be held if a
licensee whose license has been automatically revoked pursuant to
U.C.A. Section 61-2-9(1)(e)(i) files a timely request for a
hearing to challenge the revocation.
10.4.2 Hearings will be held in all proceedings commenced
by the Division for disciplinary action pursuant to U.C.A.
Section 61-2-12 following investigation of a complaint by the
R162-10-5. Procedures for Hearings in All Informal
Adjudicative Proceedings. 10.5.1 The procedures to be followed in all informal
adjudicative proceedings shall be as set forth in Title 63G,
Chapter 4, Utah Administrative Procedures Act, the Department of
Commerce Administrative Procedures Act Rules, Utah Administrative
Code Section R151-46b, and in this Section R162-10-5.
10.5.2 Assistance of Administrative Law Judge. In any
proceeding under this subsection, the Commission and the Division
may, but shall not be required to, delegate a hearing to an
Administrative Law Judge or request that an Administrative Law
Judge assist the Commission and the Division in conducting the
hearing. Any delegation of a hearing to an Administrative Law
Judge or any request for assistance from an Administrative Law
Judge shall be in writing.
10.5.3 Discovery. Discovery is prohibited, but the
Division may issue subpoenas or other orders to compel production
of necessary and relevant evidence upon written request to the
Division. Parties shall have access to information gathered
during an investigation by the Division to the extent permitted
by Title 63G, Chapter 2, Government Records Access and Management
Act, and other applicable laws. The Division shall provide the
information within 15 days of receipt of the written request.
Information that will not be provided by the Division to a party
includes the Division's Investigative Report, draft
documents, attorney/client communications, materials containing
an attorney's work product, materials containing the
investigators' thought processes or analysis, or internal
Division forms and memoranda. The Division may decline to provide
a party with information it has already provided to that
10.5.4 Intervention. Intervention is prohibited.
10.5.5 Notice of hearing. Upon the scheduling of a
hearing by the Division, the Division shall mail written notice
of the date, time, and place scheduled for the hearing. If the
respondent in a proceeding commenced by the Division is an
actively licensed sales agent or associate broker, the Division
shall mail a copy of the notice of hearing to the principal
broker with whom the respondent is licensed.
10.5.6 Hearings. Hearings shall be open to all parties,
except that a hearing may be conducted in a closed session which
is not open to the public if the presiding officer closes the
hearing pursuant to Title 63G, Chapter 4, the Utah Administrative
Procedures Act or Title 52, Chapter 4, the Open and Public
10.5.7 Witnesses. A party to a proceeding may request
that the Division subpoena witnesses or documents on the
party's behalf by making a written request to the Division.
The Division will thereafter generate the witness subpoenas and
furnish them to the party requesting them. The party who has
requested that a witness be subpoenaed shall bear the cost of
service of the subpoena upon the witness, and the witness fee and
mileage to be paid to the witness.
10.5.8 Representation by counsel. The respondent in a
proceeding commenced by the Division, or the requestor in a
proceeding commenced by a 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
10.5.9 Record. The Division shall cause a record to be
made of the hearing by audio or video recorder, or by a certified
shorthand reporter. Any party to the proceeding, at his own
expense, may have a reporter approved by the Division prepare a
transcript from the Division's record of the
10.5.10 Orders. Within a reasonable time after the close
of a proceeding, the presiding officer shall issue a signed order
in writing that states the decision, the reasons for the
decision, a notice of any right of administrative or judicial
review available to the parties, and the time limits for filing
an appeal or requesting a review. The Order shall be based on the
facts appearing in the Division's files and on the facts
presented in evidence at the hearing. A copy of the Order shall
be promptly mailed or delivered to each of the parties.
R162-10-6. Additional Procedures for Disciplinary
Proceedings Commenced by the Division. 10.6 The following additional procedures shall apply to
disciplinary proceedings commenced by the Division pursuant to
U.C.A. Section 61-2-12 following the investigation by the
Division of a complaint:
10.6.1 Notice of Agency Action and Petition. The
proceeding shall be commenced by the Division filing and serving
a Notice of Agency Action and a Petition setting forth the
allegations made by the Division.
10.6.2 Answer. The presiding officer at the time the
Petition is filed may, upon a determination of good cause,
require a person against whom a disciplinary proceeding has been
initiated pursuant to U.C.A. Section 61-2-12 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
after the mailing date of the Notice of Agency Action and
10.6.3 Witness and Exhibit Lists. The Division shall
provide its Witness and Exhibit Lists to the respondent at the
time it mails its Notice of Hearing to the respondent. The
respondent shall provide its Witness and Exhibits Lists to the
Division no later than thirty days after the mailing date of the
Division's Notice of Agency Action and Petition.
10.6.3.1 Contents of Witness List. A Witness List shall
contain the name, address, and telephone number of each witness
the party intends to call to testify at the hearing, and a
summary of the testimony expected from the witness.
10.6.3.2 Contents of Exhibit List. An Exhibit List shall
contain an identification of each document or other exhibit that
the party intends to use at the hearing, and shall be accompanied
by copies of the exhibits.
10.6.4 Pre-hearing Motions. Any pre-hearing motion
permitted by Utah Administrative Code Section R151-46b, the
Department of Commerce Administrative Procedures Act Rules, shall
be made in accordance with those rules. The Director of the
Division shall receive and rule upon any pre-hearing
KEY: real estate business
Date of Enactment or Last Substantive Amendment: June 21,
Notice of Continuation: September 27, 2010
Authorizing, and Implemented or Interpreted Law: 61-2-5.5;
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For questions regarding the content or application of this rule, please contact Jennie Jonsson at the above address, by phone at 801-530-6706, by FAX at 801-526-4387, or by Internet E-mail at email@example.com.