No. 28668 (Amendment): R162-10. Administrative Procedures

DAR File No.: 28668
Filed: 04/21/2006, 04:55
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Utah Division of Real Estate and the Utah Real Estate Commission have decided to conduct disciplinary proceedings as informal adjudicative proceedings instead of formal adjudicative proceedings.

 

Summary of the rule or change:

Disciplinary proceedings are changed from formal adjudicative proceedings (which have been conducted by an administrative law judge) to informal adjudicative proceedings before the Utah Real Estate Commission. Procedural rules for various types of informal proceedings are also provided.

 

State statutory or constitutional authorization for this rule:

Section 61-2-5.5 and Subsection 63-46b-1(5)

 

Anticipated cost or savings to:

the state budget:

None--The only State agency that would be impacted would be the Division of Real Estate. The Division of Real Estate anticipates that there will be no significant cost or savings in its budget by conducting more informal adjudicative proceedings that are subject to de novo review instead of formal adjudicative proceedings that are subject to a review on the record.

 

local governments:

None--The rules on administrative proceedings before the Utah Real Estate Commission do not impact local government.

 

other persons:

It is anticipated that persons who are the subject of proceedings before the Utah Real Estate Commission will save money because the proceedings will be informal proceedings as opposed to formal proceedings. It is unknown whether the appeal from an informal proceeding, which is a trial de novo in district court, will cost these persons money or save them money as compared to the cost of an appeal from a formal proceeding, which is a review on the record of what occurred at the agency level. Therefore, the costs or savings to those persons cannot be determined or quantified.

 

Compliance costs for affected persons:

As set forth above under "Other persons," it is unknown whether the change from formal proceedings to informal proceedings for disciplinary actions will cost the persons involved in these proceedings any money, or whether the change will save them money.

 

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

This rule filing changes the designation of disciplinary actions from formal adjudicative proceedings to informal adjudicative proceedings. It also codifies existing procedures for adjudicative proceedings conducted by the agency. It is not clear whether in the long run there will be a cost savings or cost increase to the industry as a result of the change in the designation of adjudicative proceedings. However, no fiscal impact to other businesses is anticipated by such change or by the codification of existing procedures. 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
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316

 

Direct questions regarding this rule to:

Shelley Wismer at the above address, by phone at 801-530-6761, by FAX at 801-530-6749, 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:

06/14/2006

 

This rule may become effective on:

06/15/2006

 

Authorized by:

Derek Miller, Director

 

 

RULE TEXT

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 proceeding:[

10.1.1. A disciplinary action commenced by the Division following investigation of a complaint.]

10.1.[2]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.[3]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.[4]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 license.

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[, suspension or revocation] 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 Act.

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 history.

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 probation.

10.2.12. Except as provided in Section 63-46b-20, 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 informal basis.

 

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 Division.

 

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 63, Chapter 46b, 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 63, 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 party.

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 63, Chapter 46b, the Utah Administrative Procedures Act or Title 52, Chapter 4, the Open and Public Meetings Act.

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 issues.

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 proceedings.

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 Petition.

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 motions.

 

KEY: real estate business

Date of Enactment or Last Substantive Amendment: [April 19, ]2006

Notice of Continuation: October 7, 2005

Authorizing, and Implemented or Interpreted Law: 61-2-5.5; 63-46b-1(5)