No. 33380 (Repeal): Rule R162-209. Administrative Proceedings

(Repeal)

DAR File No.: 33380
Filed: 02/11/2010 09:47:29 AM

RULE ANALYSIS

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Rule R162-209 is repealed in light of the Division's proposed new Rule R162-2c, which incorporates the provisions of the existing rule into a new numbering system and organizational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Rule R162-209 is repealed in its entirety.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:

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.

small businesses:

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
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 [e-mail]

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:

03/31/2010

This rule may become effective on:

04/07/2010

Authorized by:

Deanna Sabey, Director

RULE TEXT

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 63G-4-201.

 

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 formal basis.

 

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 proceedings.

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 proceedings.

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 R162-210.6; 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. Section 61-2c-402.

 

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 mailed.

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 made.

 

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 adjudicative proceeding.

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 the hearing.

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 party.

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 Meetings Act.

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 issues.

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 proceedings.

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 Petition.

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.

209.8.4.1 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.

209.8.4.2 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.

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 pre-hearing motions.

 

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 Law: 63G-4-202]

 

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