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S.B. 69

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REAL ESTATE AGENT BACKGROUND CHECK

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1997 GENERAL SESSION

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STATE OF UTAH

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Sponsor: Michael G. Waddoups

5    AN ACT RELATING TO SECURITIES, REAL ESTATE DIVISION; REQUIRING
6    FINGERPRINT CARDS AND THE CONSENT TO A FINGERPRINT BACKGROUND
7    CHECK OF ANY NEW SALES AGENT APPLICANT; PROVIDING THE COSTS TO BE
8    BORNE BY THE APPLICANT; REQUIRING THE DIVISION TO REQUEST A CRIMINAL
9    BACKGROUND CHECK ON ANY NEW SALES AGENCY APPLICANT; PROVIDING
10    FOR CONDITIONAL LICENSURE AND SUBSEQUENT REVOCATION UPON
11    NONDISCLOSURE OF CRIMINAL HISTORY; AND MAKING TECHNICAL CHANGES.
12    This act affects sections of Utah Code Annotated 1953 as follows:
13    AMENDS:
14         61-2-5.1, as enacted by Chapter 161, Laws of Utah 1987
15         61-2-9, as last amended by Chapter 102, Laws of Utah 1996
16         61-2-11, as last amended by Chapter 102, Laws of Utah 1996
17    Be it enacted by the Legislature of the state of Utah:
18        Section 1. Section 61-2-5.1 is amended to read:
19         61-2-5.1. Procedures -- Adjudicative proceedings.
20        The Division of Real Estate shall comply with the procedures and requirements of Title
21    63, Chapter 46b, Administrative Procedures Act, in its adjudicative proceedings.
22        Section 2. Section 61-2-9 is amended to read:
23         61-2-9. Examination and license fees -- Renewal of licenses -- Education
24     requirements -- Activation of inactive licenses -- Recertification -- Licenses of firm,
25     partnership, or association -- Miscellaneous fees.
26        (1) (a) Upon filing an application for a principal broker, associate broker, or sales agent
27    license examination, the applicant shall pay a nonrefundable fee as determined by the commission


1    with the concurrence of the division under Section 63-38-3.2 for admission to the examination.
2        (b) A principal broker, associate broker, or sales agent applicant shall pay a nonrefundable
3    fee as determined by the commission with the concurrence of the division under Section 63-38-3.2
4    for issuance of an initial license or license renewal.
5        (c) Each license issued under this subsection shall be issued for a period of not less than
6    two years as determined by the division with the concurrence of the commission.
7        (d) (i) Any new sales agent applicant shall submit fingerprint cards in a form acceptable
8    to the division at the time the license application is filed and shall consent to a fingerprint
9    background check by the Utah Bureau of Criminal Identification and the Federal Bureau of
10    Investigation regarding the application.
11        (ii) The division shall request the Department of Public Safety to complete a Federal
12    Bureau of Investigation criminal background check for each new sales agent applicant through the
13    national criminal history system (NCIC) or any successor system.
14        (iii) The cost of the background check and the fingerprinting shall be borne by the
15    applicant.
16         S [(e)] (i) s Any new sales agent license issued under this section shall be conditional,
16a     pending
17    completion of the criminal background check. If the criminal background check discloses the
18    applicant has failed to accurately disclose a criminal history, the license shall be immediately and
19    automatically revoked.
19a         S (ii) ANY PERSON WHOSE CONDITIONAL LICENSE HAS BEEN REVOKED UNDER THIS
19b     SUBSECTION (i) SHALL BE ENTITLED TO A POST-REVOCATION HEARING TO CHALLENGE THE
19c     REVOCATION. THE HEARING SHALL BE CONDUCTED IN ACCORDANCE WITH TITLE 63, CHAPTER
19d     46b, ADMINISTRATIVE PROCEDURES ACT. s
20        (2) (a) A license expires if it is not renewed on or before its expiration date. Effective
21    January 1, 1992, as a condition of renewal, each active licensee shall demonstrate competence by
22    viewing an approved real estate education video program and completing a supplementary
23    workbook, or complete 12 hours of professional education approved by the division and
24    commission within each two-year renewal period. The division with the concurrence of the
25    commission shall certify education which may include, but shall not be limited to, state
26    conventions, home study courses, video courses, and closed circuit television courses. The
27    commission with concurrence of the division may exempt a licensee from this education
28    requirement for a period not to exceed four years upon a finding of reasonable cause and under
29    conditions established by rule.
30        (b) For a period of 30 days after the expiration date, a license may be reinstated upon
31    payment of a renewal fee and a late fee determined by the commission with the concurrence of the


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Amend on 2_goldenrod February 21, 1997
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1    division under Section 63-38-3.2 and upon providing proof acceptable to the division and the
2    commission of the licensee having completed the hours of education or demonstrated competence
3    as required under Subsection (2)(a).
4        (c) After this 30-day period, and until six months after the expiration date, the license may
5    be reinstated by:
6        (i) paying a renewal fee and a late fee determined by the commission with the concurrence
7    of the division under Section 63-38-3.2;
8        (ii) providing to the division proof of satisfactory completion of the applicable hours of
9    prelicensing education required under Section 61-2-6, which must be completed within six months
10    prior to reinstatement, or providing to the division evidence of successful completion of the
11    respective sales agent or broker licensing examination within six months prior to reinstatement;
12    and
13        (iii) providing proof acceptable to the division and the commission of the licensee having
14    completed the hours of education or demonstrated competence as required under Subsection (2)(a).
15        (d) A person who does not renew his license within six months after the expiration date
16    shall be relicensed as prescribed for an original application.
17        (3) As a condition for the activation of an inactive license, a licensee shall supply the
18    division with proof of:
19        (a) successful completion of the respective sales agent or broker licensing examination
20    within six months prior to activation; or
21        (b) the successful completion of the number of hours of continuing education that the
22    licensee would have been required to complete under Subsection (2)(a) if the licensee's license had
23    been on active status, up to the number of hours required for original licensure. Credit shall be
24    given only for education that has been taken within the five years preceding activation, except that
25    at least 12 hours of the education must have been taken within 12 months preceding activation.
26        (4) A principal broker license may be granted to a corporation, partnership, or association
27    if the corporation, partnership, or association has affiliated with it an individual who has qualified
28    as a principal broker under the terms of this chapter, and who serves in the capacity of a principal
29    broker. Application for the license shall be made in accordance with the rules adopted by the
30    division with the concurrence of the commission.
31        (5) The division may charge and collect reasonable fees determined by the commission

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1    with the concurrence of the division under Section 63-38-3.2 to cover the costs for:
2        (a) issuance of a new or duplicate license;
3        (b) license histories or certifications;
4        (c) certified copies of official documents, orders, and other papers and transcripts;
5        (d) certifying real estate schools, courses, and instructors, the fees for which shall,
6    notwithstanding Section 13-1-2, be deposited in the Real Estate Education, Research, and
7    Recovery Fund; and
8        (e) other duties required by this chapter.
9        (6) If a licensee submits or causes to be submitted a check, draft, or other negotiable
10    instrument to the division for payment of fees, and the check, draft, or other negotiable instrument
11    is dishonored, the transaction for which the payment was submitted is void and will be reversed
12    by the division if payment of the applicable fee is not received in full.
13        (7) The fees under this chapter and the additional license fee for the Real Estate Education,
14    Research, and Recovery Fund under Section 61-2a-4 are in lieu of all other license fees or
15    assessments that might otherwise be imposed or charged by the state or any of its political
16    subdivisions, upon, or as a condition of, the privilege of conducting the business regulated by this
17    chapter, except that a political subdivision within the state may charge a business license fee if the
18    licensee maintains a place of business within the jurisdiction of the political subdivision. Unless
19    otherwise exempt, each licensee under this chapter is subject to all taxes imposed under Title 59,
20    Revenue and Taxation.
21        Section 3. Section 61-2-11 is amended to read:
22         61-2-11. Investigations -- Subpoena power of division -- Grounds for disciplinary
23     action.
24        The division may investigate or cause to be investigated the actions of any principal broker,
25    associate broker, sales agent, real estate school, course provider, or school instructor licensed or
26    certified by this state, or of any applicant for licensure or certification, or of any person who acts
27    in any of those capacities within this state. The division is empowered to subpoena witnesses, take
28    evidence, and require by subpoena duces tecum the production of books, papers, contracts, records,
29    other documents, or information considered relevant to the investigation. The division may serve
30    subpoenas by certified mail. Each failure to respond to a subpoena is considered as a separate
31    violation of this chapter. The commission, with the concurrence of the director, may impose a

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1    civil penalty in an amount not to exceed $500 per violation, impose educational requirements, and
2    suspend, revoke, place on probation, or deny renewal, reinstatement, or reissuance of any license
3    or any certification if at any time the licensee or certificate holder, whether acting as an agent or
4    on his own account, is found guilty of:
5        (1) making any substantial misrepresentation;
6        (2) making any false promises of a character likely to influence, persuade, or induce;
7        (3) pursuing a continued and flagrant course of misrepresentation, or of making false
8    promises through agents, sales agents, advertising, or otherwise;
9        (4) acting for more than one party in a transaction without the informed consent of all
10    parties;
11        (5) acting as an associate broker or sales agent while not licensed with a licensed principal
12    broker, representing or attempting to represent a broker other than the principal broker with whom
13    he is affiliated, or representing as sales agent or having a contractual relationship similar to that
14    of sales agent with other than a licensed principal broker;
15        (6) failing, within a reasonable time, to account for or to remit any monies coming into his
16    possession that belong to others, or commingling those funds with his own, or diverting those
17    funds from the purpose for which they were received;
18        (7) paying or offering to pay valuable consideration, as defined by the commission, to any
19    person not licensed under this chapter, except that valuable consideration may be shared with a
20    licensed principal broker of another jurisdiction or as provided under the Professional Corporation
21    Act or the Limited Liability Company Act;
22        (8) being unworthy or incompetent to act as a principal broker, associate broker, or sales
23    agent in such manner as to safeguard the interests of the public;
24        (9) failing to voluntarily furnish copies of all documents to all parties executing the
25    documents;
26        (10) failing to keep and make available for inspection by the division a record of each
27    transaction, including the names of buyers and sellers or lessees and lessors, the identification of
28    the property, the sale or rental price, any monies received in trust, any agreements or instructions
29    from buyers and sellers or lessees and lessors, and any other information required by rule;
30        (11) failing to disclose, in writing, in the purchase, sale, or rental of property, whether the
31    purchase, sale, or rental is made for himself or for an undisclosed principal;

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1        (12) regardless of whether the crime was related to real estate, being convicted of a
2     S [ [ ] criminal offense [ ] ] [ [ ] involving moral turpitude [] ] [ FELONY OR CLASS A MISDEMEANOR ] 2a     WITHIN FIVE YEARS OF THE MOST RECENT APPLICATION s , including a conviction based
2b    upon a plea of nolo
3    contendere, or a plea held in abeyance to a S [ [ ] criminal offense [ ] ] [ THE FELONY OR CLASS A
3a     MISDEMEANOR] [ [ ] involving moral turpitude [ ] ] s ;
4        (13) advertising the availability of real estate or the services of a licensee in a false,
5    misleading, or deceptive manner;
6        (14) in the case of a principal broker or a licensee who is a branch manager, failing to
7    exercise reasonable supervision over the activities of his licensees and any unlicensed staff;
8        (15) violating or disregarding this chapter, an order of the commission, or the rules
9    adopted by the commission and the division;
10        (16) breaching a fiduciary duty owed by a licensee to his principal in a real estate
11    transaction;
12        (17) any other conduct which constitutes dishonest dealing;
13        (18) unprofessional conduct as defined by statute or rule; or
14        (19) suspension, revocation, surrender, or cancellation of a real estate license issued by
15    another jurisdiction, or of another professional license issued by this or another jurisdiction, based
16    on misconduct in a professional capacity that relates to character, honesty, integrity, or
17    truthfulness.




Legislative Review Note
    as of 1-30-97 11:28 AM


A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


Text Box

Corrected goldenrod
Amend on 2
_goldenrod February 21, 1997

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