File No. 33380
This rule was published in the March 1, 2010, issue (Vol. 2010, No. 5) of the Utah State Bulletin.
Commerce, Real Estate
Notice of Proposed Rule
DAR File No.: 33380
Filed: 02/11/2010 09:47:29 AM
Purpose of the rule or reason for the change:
Rule R162-209 is repealed in light of the Division's proposed new Rule R162-2c, which incorporates the provisions of the existing rule into a new numbering system and organizational scheme. (DAR NOTE: The proposed new Rule R162-2c is under DAR No. 33372 in this issue, March 1, 2010, of the Bulletin.)
Summary of the rule or change:
Rule R162-209 is repealed in its entirety.
State statutory or constitutional authorization for this rule:
- Section 63G-4-202
Anticipated cost or savings to:
the state budget:
The substantive provisions of this rule are incorporated into the new rule. There is no change in the costs to the state.
Local governments have never been subject to administrative proceedings conducted by the division relative to the mortgage industry. Repealing this rule will have no fiscal impact to local governments.
The substantive provisions of this rule are incorporated into the new rule. There is no change in the costs to small businesses, which have always been, and remain, subject to the rules governing administrative proceedings conducted by the division relative to the mortgage industry.
persons other than small businesses, businesses, or local governmental entities:
The substantive provisions of this rule are incorporated into the new rule. There is no change in the costs to affected persons, which have always been, and remain, subject to the rules governing administrative proceedings conducted by the division relative to the mortgage industry.
Compliance costs for affected persons:
In repealing this rule, the division relieves 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 a substitute rule amendment containing the substance of these provisions is also 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 email@example.com
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.
R162-209. Administrative Proceedings. R162-209-1. Requests for Agency Action.
209.1.1 Any application form which is filled out and
submitted to the Division for a license or renewal of a license,
or for certification of a school, instructor, or course, shall be
deemed a request for agency action pursuant to the Utah
Administrative Procedures Act, Section 63G-4-102, et seq.
209.1.2 A complaint against a licensee requesting that the
Division commence an investigation or a disciplinary action is
not a request for agency action pursuant to the Utah
Administrative Procedures Act, Section 63G-4-102, et seq.
209.1.3 Other requests for agency action shall be in writing
and signed by the requestor, and shall contain the information
required by the Utah Administrative Procedures Act, Section
R162-209-2. Formal Adjudicative
Proceedings. Any adjudicative proceeding conducted subsequent to the
issuance of a cease and desist order shall be conducted on a
R162-209-3. Informal Adjudicative
Proceedings. 209.3.1. All adjudicative proceedings as to any other
matters not specifically designated as formal adjudicative
proceedings shall be conducted as informal adjudicative
209.3.2. A hearing will be held in an informal adjudicative
proceeding only if required or permitted by the Utah Residential
Mortgage Practices Act or by these rules.
209.3.3. All proceedings on original or renewal applications
for a license will be conducted as informal adjudicative
209.3.4. All proceedings on original or renewal applications
for certification of a school, instructor, or course will be
conducted as informal adjudicative proceedings.
209.3.5. Except as provided in Section 63G-4-502, all
proceedings for disciplinary action commenced by the Division
following investigation of a complaint will be conducted as
informal adjudicative proceedings.
R162-209-4. Hearings Not Required. A hearing is not required and will not be held in the
following informal adjudicative proceedings:
(a) The issuance of an original or renewed license when the
application has been approved by the Division;
(b) The issuance of an original or renewed school
certification, instructor certification, or course certification
when the application has been approved by the Division;
(c) 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;
(d) The denial of an application for original or renewed
license on the ground that it is incomplete;
(e) The denial of an application for original or renewed
school certification, instructor certification, or course
certification on the ground that it does not comply with the
requirements of Sections R162-208.9, R162-210.2, R162-210.5, or
(f) All proceedings on an application for an exemption from
the continuing education requirement.
R162-209-5. Hearings Required in Informal
Adjudicative Proceedings. 209.5.1 Hearings will be held in all proceedings commenced
by the Division for disciplinary action pursuant to U.C.A.
R162-209-6. Hearings Permitted. 209.6.1. Except as provided in Subsection 209.6.2, an
informal post-revocation hearing following the revocation of a
license pursuant to Utah Code Section 61-2c-202(4)(d) for the
failure of a person to accurately disclose his criminal history
will be held if requested in writing by the person within 30 days
from the date the Division's order revoking the license was
209.6.2 Upon a finding of good cause shown for a delay in
requesting a hearing, the Director may grant a post-revocation
hearing to a licensee whose request for a hearing was not timely
R162-209-7. Procedures for Hearing in All
Informal Adjudicative Proceedings. 209.7.1 The procedures to be followed in all informal
adjudicative proceedings are set forth in Title 63G, Chapter 4,
Utah Administrative Procedures Act, Utah Administrative Code
Section R151-46b, and in these rules.
209.7.2 Except as provided in Subsection 209.8.3 of these
rules, a party is not required to file a written answer to a
notice of agency action from the Division in an informal
209.7.3 Assistance of an 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 shall be in writing.
209.7.4. Notice of hearing. Upon the scheduling of a hearing
by the Division on an application for a license or upon receipt
of a timely request for a hearing where other hearings are
permitted, the Division shall mail written notice of date, time,
and place scheduled for the hearing at least ten days prior to
209.7.5. 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 that it has already provided to that
209.7.6. Intervention. Intervention is prohibited.
209.7.7. 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
209.7.8 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
209.7.9. 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, the witness fee and mileage to be paid
to the witness.
209.7.10. 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 a proceeding, at his own
expense, may have a reporter approved by the Division prepare a
transcript from the Division's recording of the
209.7.11. 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 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.
R162-209-8. Additional Procedures for
Disciplinary Proceedings Commenced by the Division. 209.8.1 The following additional procedures shall apply to
disciplinary proceedings commenced by the Division pursuant to
U.C.A. Section 61-2c-402 following the investigation of a
complaint by the Division:
209.8.2 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.
209.8.3 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 61-2c-402 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
209.8.4 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.
18.104.22.168 Contents of Witness List. A Witness List shall
contain the name, address, and telephone number of each witness,
and a summary of the testimony expected from the witness.
22.214.171.124 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.
209.8.5 Pre-hearing Motions. Any pre-hearing motion
permitted by 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
KEY: residential mortgage loan
origination Date of Enactment or Last Substantive
Amendment: August 29, 2006 Notice of Continuation: January 30, 2006 Authorizing, and Implemented or Interpreted
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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 firstname.lastname@example.org.