No. 28849 (Amendment): R162-209. Administrative Proceedings

DAR File No.: 28849
Filed: 06/28/2006, 08:57
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Utah Division of Real Estate and the Utah Residential Mortgage Regulatory 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 Residential Mortgage Regulatory Commission. Procedural rules for various types of informal proceedings are also provided.

 

State statutory or constitutional authorization for this rule:

Subsections 61-2c-103(3) and 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 Residential Mortgage Regulatory Commission do not impact local government; therefore, there are no costs or savings to local government.

 

other persons:

It is anticipated that persons who are the subject of proceedings before the Utah Residential Mortgage Regulatory 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" above, 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 residential mortgage disciplinary hearings from formal adjudicative proceedings to informal adjudicative proceedings. It also codifies 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 residential mortgage 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 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:

08/14/2006

 

This rule may become effective on:

08/22/2006

 

Authorized by:

Derek Miller, 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 63-46b-1, 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 63-46b-1, 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 63-46b-3.

 

R162-209-[1]2. Formal Adjudicative Proceedings.

Any adjudicative proceeding conducted subsequent to the issuance of a cease and desist order[as to the following matters] shall be conducted on a formal basis.[:

209.1.1. A disciplinary action commenced by the Division following investigation of a complaint; and

209.1.2. Any proceedings conducted subsequent to the issuance of a cease and desist order.]

 

R162-209-[2]3. Informal Adjudicative Proceedings.

209.[2]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.[2]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.[

209.2.3. 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.[2.4]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 63-46b-20, all proceedings for disciplinary action commenced by the Division following investigation of a complaint will be conducted as informal adjudicative proceedings.[209.2.5. Any application form which is filled out and submitted to the Division for a license or renewal of a license shall be deemed a request for agency action pursuant to the Utah Administrative Procedures Act, Section 64-46b-1, et seq.

209.2.6. Within a reasonable time after receipt of an application, the Division shall:

(a) issue and mail a license to the applicant, which shall be deemed notification that the application is granted conditionally subject to the outcome of the criminal background check;

(b) notify the applicant that the application is incomplete or that further information is needed;

(c) notify the applicant that a hearing shall be scheduled before the Utah Residential Mortgage Regulatory Commission; or

(d) notify the applicant that the application is denied, and, if the proceeding is one in which a hearing is permitted, that the applicant may request a hearing to challenge the denial.

209.2.7. Other Requests for Agency Action. All 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.

209.2.8. Within a reasonable time after receipt of a request for agency action other than an application for an original or renewed license, the Division shall:

(a) notify the requestor in writing that the request is granted;

(b) notify the requestor that the request is incomplete or 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.

209.2.9. 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 64-46-1, et seq.]

 

R162-209-[3]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-[4]6. Hearings Permitted.

209.[4]6.1. Except as provided in Subsection 209.6.2, a[A]n 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 [only ]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-[5]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 63, Chapter 46b, 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.[5.1]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 [the ]date, time, and place scheduled for the hearing at least ten days prior to the hearing.

209.[5.2]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. [All p]Parties shall have access to [the Division's files and all materials and information gathered in any investigation to the extent permitted by law.]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 that it has already provided to that party.

209.[5.3]7.6. Intervention. Intervention is prohibited.

209.[5.4]7.7. Hearings. Hearings shall be open to all parties, except that a hearing [on an applicant's fitness for a license shall]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.

209.7.8 Representation by Counsel. The [parties named in the notice of agency action or the request for agency action]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.[5.5]7.11. Orders. Within a reasonable time after the [hearing]close of a proceeding, the presiding officer shall [cause to be issued and sent to the parties]issue a signed order [based on the facts appearing in the agency's files and on the facts presented in evidence at the hearing. The order shall state]in writing that states the decision, [and ]the reasons for the decision, [therefor and ]a notice of [the]any right of administrative [review and]or judicial review available to the parties, and [including applicable]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: [November 3, 2004]2006

Notice of Continuation: January 30, 2006

Authorizing, and Implemented or Interpreted Law: 63-46b-4