Commerce, Real Estate

Rule R162-109

Administrative Proceedings

Notice of Proposed Rule

(Repeal)

DAR File No.: 34948
Filed: 06/16/2011 11:49:23 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The substantive provisions are incorporated into a new rule, R162-2g. (DAR NOTE: The proposed new rule, R162-2g, was published in the July 1, 2011, issue of the Utah State Bulletin under DAR No. 34917.)

Summary of the rule or change:

The rule is repealed in its entirety.

State statutory or constitutional authorization for this rule:

• Subsection 61-2g-201(2)(h)

Anticipated cost or savings to:

the state budget:

The substantive provisions of this rule are incorporated into a new rule, R162-2g. No changes are proposed that are anticipated to have a fiscal impact to the state.

local governments:

Local government is not subject to the appraiser administrative rules. No fiscal impact to local government is anticipated.

small businesses:

The substantive provisions of this rule are incorporated into a new rule, R162-2g. No changes are proposed that are anticipated to have a fiscal impact on small businesses.

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

The substantive provisions of this rule are incorporated into a new rule, R162-2g. No changes are proposed that are anticipated to have a fiscal impact on affected persons.

Compliance costs for affected persons:

The rule is repealed. No compliance is required.

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 new rule 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
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 jjonsson@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:

08/15/2011

This rule may become effective on:

08/22/2011

Authorized by:

Deanna Sabey, Director

R162. Commerce, Real Estate.

[ R162-109. Administrative Proceedings.

R162-109-1. Formal Adjudicative Proceedings.

109.1. Any 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.

109.2.3. All adjudicative proceedings as to any other matters not specifically designated as formal adjudicative proceedings shall be conducted as informal adjudicative proceedings.

109.2.4. 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.

109.2.5. 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 63G-4-102 et seq.

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

(a) issue and mail a license, certification, 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 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. 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 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 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 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 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. 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.

 

R162-109-6. 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 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 R162-109-6.

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 Notice of hearing. Upon the scheduling of a hearing by the Division or upon receipt of a timely request for a hearing where 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 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 Intervention is prohibited.

109.6.8 Hearings shall be open to all parties, except that a hearing on an applicant's fitness for licensure or certification 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, 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 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 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 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 appraisals

Date of Enactment or Last Substantive Amendment: July 27, 2005

Notice of Continuation: April 18, 2007

Authorizing, and Implemented or Interpreted Law: 61-2b-30 ]