Commerce, Real Estate

Section R162-2-2

Licensing Procedure

Notice of Proposed Rule

(Amendment)

DAR File No.: 33526
Filed: 03/31/2010 03:50:02 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Real Estate Commission has determined that a plea in abeyance to a criminal charge should not be viewed as being equivalent to a conviction when considering the criminal history of an applicant for licensure.

Summary of the rule or change:

An applicant for a new license will no longer be automatically barred from licensure upon evidence that the applicant has, within the three-year period preceding the date of application, entered a plea in abeyance to a misdemeanor involving fraud, misrepresentation, theft, or dishonesty. The Division and Commission will be able to exercise discretion under Subsection R162-2-2(2.2.11) in reviewing such applications. An applicant for a renewed license will no longer be automatically barred from licensure upon evidence that the applicant has, since the last date of licensure, entered a plea in abeyance to a felony charge that does not involve fraud, misrepresentation, or deceit. The Division and Commission will be able to exercise discretion under Subsection R162-2-2(2.2.11) in reviewing such applications.

State statutory or constitutional authorization for this rule:

• Subsection 61-2.5.5(1)

Anticipated cost or savings to:

the state budget:

The Division of Real Estate already has in place staff and resources to review applications of individuals with criminal history. No impact is anticipated by asking state staff to apply a slightly different analysis to a criminal history involving a plea in abeyance. By eliminating an automatic bar to licensure, the Division may issue licenses to more applicants, generating additional income for the state.

local governments:

Local governments do not apply for licensure with the Division, nor do they process license applications. This change should have no impact on local governments.

small businesses:

Criminal history disclosure is not required of small businesses that register with the Division. This rule has never affected small business, and this amendment will have no impact.

persons other than small businesses, businesses, or local governmental entities:

The costs of applying for a license remain the same. This rule amendment simply adjusts the scheme by which those applications are reviewed. There will be no costs to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

No compliance is required. There are no compliance costs.

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

This rule filing relaxes the automatic disqualification provision resulting from the criminal record of applicants, as described in the rule summary. The amendment could be a cost savings to license applicants.

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
Real Estate
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 [email protected]

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:

05/17/2010

This rule may become effective on:

05/24/2010

Authorized by:

Deanna Sabey, Director

R162. Commerce, Real Estate.

R162-2. Exam and License Application Requirements.

R162-2-2. Licensing Procedure.

2.2. Within 90 days after successful completion of the exam, the applicant shall return to the Division each of the following:

2.2.1. A report of the examination indicating that both portions of the exam have been passed within a six-month period of time.

2.2.2. The license application form required by the Division. The application form shall include the licensee's business and home address. A post office box without a street address is unacceptable as a business or home address. The licensee may designate any address to be used as a mailing address.

2.2.3. The non-refundable fees which include the appropriate license fee as authorized by Section 61-2-9(5) and the Recovery Fund fee as authorized by Section 61-2a-4.

2.2.4. Documentation indicating successful completion of the required education taken within the year prior to licensing. If the applicant has been previously licensed in another state which has substantially equivalent licensing requirements, the applicant may apply to the Division for a waiver of all or part of the educational requirement.

(a) Until December 31, 2009, a candidate for the license of sales agent shall successfully complete 90 classroom hours of approved study in principles and practices of real estate.

(b)(i) Beginning January 1, 2010, a candidate for the license of sales agent shall successfully complete 120 hours of approved study in principles and practices of real estate.

(ii) An applicant for licensure may complete 90 hours of prelicense education only if:

(A) the applicant began the prelicense education program prior to January 1, 2010; and

(B) the applicant submits the completed education prior to March 31, 2010.

(c) Experience shall not satisfy the education requirement. Membership in the Utah State Bar shall waive this requirement. The Division may waive all or part of the educational requirement by virtue of equivalent education taken while completing a college undergraduate or postgraduate degree program, regardless of the date of the degree, or by virtue of other equivalent real estate education if the other real estate education was taken within 12 months prior to application.

(d) Candidates for the license of associate broker or principal broker shall successfully complete 120 classroom hours of study curriculum approved by the Commission consisting of 45 hours of broker principles, 45 hours of broker practices, and 30 hours of Utah law and testing. Experience shall not satisfy the education requirement. The Division may waive all or part of the educational requirement by virtue of equivalent education taken while completing a college undergraduate or postgraduate degree program, regardless of the date of the degree, or by virtue of other equivalent real estate education if the other real estate education was taken within 12 months prior to application.

2.2.5. The principal broker and associate broker applicant shall submit the forms required by the Division documenting a minimum of three years licensed real estate experience and a total of at least 60 points accumulated within the five years prior to licensing. A minimum of two years (24 months) and at least 45 points shall be accumulated from Tables I and/or II. The remaining 15 points may be accumulated from Tables I, II or III.

 

TABLE I - REAL ESTATE TRANSACTIONS

RESIDENTIAL - points can be accumulated from either the

selling or the listing side of a real estate closing:

(a) One unit dwelling                         2.5 points

(b) Two- to four-unit dwellings               5 points

(c) Apartments, 5 units or over              10 points

(d) Improved lot                              2 points

(e) Vacant land/subdivision                  10 points



COMMERCIAL

(f) Hotel or motel                           10 points

(g) Industrial or warehouse                  10 points

(h) Office building                          10 points

(i) Retail building                          10 points

(j) Leasing of commercial space               5 points

 

 

TABLE II - PROPERTY MANAGEMENT

RESIDENTIAL

(a) Each unit managed                         .25 pt/month



COMMERCIAL - hotel/motel,

industrial/warehouse, office, or

retail building

(b) Each contract OR each separate

property address or location for

which licensee has direct responsibility       1 pt/month

 

2.2.6. The Principal Broker may accumulate additional experience points by having participated in real estate related activities such as the following:

 

TABLE III - OPTIONAL

Real Estate Attorney                          1 pt/month

CPA-Certified Public Accountant               1 pt/month

Mortgage Loan Officer                         1 pt/month

Licensed Escrow Officer                       1 pt/month

Licensed Title Agent                          1 pt/month

Designated Appraiser                          1 pt/month

Licensed General Contractor                   1 pt/month

Bank Officer in Real Estate Loans             1 pt/month

Certified Real Estate Prelicensing Instructor  .5 pt/month

 

2.2.7. If the review of an application has been performed by the Division and the Division has denied the application based on insufficient experience, and if the applicant believes that the Experience Points Tables do not adequately reflect the amount of the applicant's experience, the applicant may petition the Real Estate Commission for reevaluation by making a written request within 30 days after the denial stating specific grounds upon which relief is requested. The Commission shall thereafter consider the request and issue a written decision.

2.2.8. An applicant previously licensed in another state shall provide a written record of the applicant's license history from that state and documentation of disciplinary action, if any, against the applicant's license.

2.2.9. Qualifications of License Applicants. An applicant for a new license may not:

(a) have been convicted of, entered a plea in abeyance to, or completed [any]a sentence of confinement on account of[, any] a felony within five years preceding the application; or

(b) have been convicted of[, entered a plea in abeyance to,] or completed any sentence of confinement on account of[, any ]a misdemeanor involving fraud, misrepresentation, theft, or dishonesty within the three-year period[three years] preceding the date of application.

2.2.10 Qualifications for Renewal. An applicant for license renewal, or for reinstatement of an expired license, may not have, since the last date of licensure:

(a) been convicted of [or entered a plea in abeyance to ]a felony;[during the term of the last license or during the period between license expiration and application to reinstate an expired license; or]

(b) entered into a plea in abeyance agreement relative to a felony charge involving fraud, misrepresentation, or deceit; or

[(b)](c) had, with regard to activities requiring a real estate license, a finding of fraud, misrepresentation or deceit entered against the applicant[, related to activities requiring a real estate license, ]by [any]a court of competent jurisdiction or [any]a government agency, unless the finding was explicitly considered by the Division in a previous application process[approving the applicant's initial license or previous license renewals].

2.2.11 Determining fitness for licensure. In determining whether an applicant who has not been disqualified by Subsections 2.2.9 or 2.2.10 [meet]meets the requirements of honesty, integrity, truthfulness, reputation and competency required for a new or a renewed license, the Commission and the Division will consider information they consider necessary to make this determination, including the following:

2.2.11.1. Whether an applicant has been denied a license to practice real estate, property management, or any regulated profession, business, or vocation, or whether any license has been suspended or revoked or subjected to any other disciplinary sanction by this or another jurisdiction;

2.2.11.2. Whether an applicant has been guilty of conduct or practices which would have been grounds for revocation or suspension of license under Utah law had the applicant then been licensed;

2.2.11.3. Whether a civil judgment has been entered against the applicant based on a real estate transaction, and whether the judgment has been fully satisfied;

2.2.11.4. Whether a civil judgment has been entered against the applicant based on fraud, misrepresentation or deceit, and whether the judgment has been fully satisfied.

2.2.11.5 Whether an applicant has ever been convicted of, or entered a plea in abeyance to, any criminal offense, or whether any criminal charges against the applicant have ever been resolved by a diversion agreement or similar disposition;

2.2.11.6. Whether restitution ordered by a court in a criminal case has been fully satisfied;

2.2.11.7. Whether the parole or probation in a criminal case or the probation in a licensing action has been completed and fully served; and

2.2.11.8. Whether there has been subsequent good conduct on the part of the applicant. If, because of lapse of time and subsequent good conduct and reputation or other reason deemed sufficient, it shall appear to the Commission and the Division that the interest of the public will not likely be in danger by the granting of a license, the Commission and the Division may approve the applicant relating to honesty, integrity, truthfulness, reputation and competency.

 

KEY: real estate business

Date of Enactment or Last Substantive Amendment: [June 22, 2009] 2010

Notice of Continuation: April 18, 2007

Authorizing, and Implemented or Interpreted Law: 61-2-5.5