Download Zipped Enrolled WordPerfect HB0275.ZIP
[Introduced][Amended][Status][Bill Documents][Fiscal Note][Bills Directory]
H.B. 275 Enrolled
1
2
3
4
5
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to the Division of Real Estates' regulation of the
10 appraisal, mortgage, and real estate industries.
11 Highlighted Provisions:
12 This bill:
13 . recodifies Title 61, Chapter 2, Division of Real Estate, and Chapter 2a, Real Estate
14 Recovery Fund Act, and as part of the recodification creates Chapter 2f, Real
15 Estate Licensing and Practices Act;
16 . addresses definitions and consistency of terminology;
17 . addresses powers under appraisal, mortgage, and real estate statutes, including:
18 . providing for the suspension of a license, registration, or certification for
19 payment of a fee with a dishonored instrument;
20 . addressing investigatory powers and costs;
21 . addressing the division providing lists of licensees, registrants, and certificate
22 holders;
23 . addressing the effect of a failure to accurately disclose a criminal history; and
24 . requiring deadlines for compliance with disciplinary actions;
25 . increases certain fines;
26 . clarifies procedures related to the renewal of a registration as a trainee under
27 appraisal statutes;
28 . modifies the powers of the Real Estate Appraiser Licensing and Certification Board
29 with regard to examinations and education;
30 . modifies requirements for licensing and certification under appraisal statutes;
31 . corrects references to trainees under appraisal statutes;
32 . addresses ability of persons licensed, certified, or registered under appraisal statutes
33 to operate as a professional corporation or limited liability company;
34 . requires that an individual licensed under mortgage statutes be sponsored by a
35 licensed entity;
36 . addresses education and examination requirements under mortgage statutes that are
37 specific to obtaining a license in Utah;
38 . addresses the process and requirements to obtain a license, renew a license, or
39 notify the division of changes in certain information;
40 . provides for certain past revocations of a license under mortgage statutes to be
41 converted to a suspension of the license;
42 . modifies criminal penalties;
43 . clarifies procedures for making claims against the mortgage and real estate
44 recovery funds; and
45 . makes technical and conforming amendments.
46 Monies Appropriated in this Bill:
47 None
48 Other Special Clauses:
49 This bill coordinates with H.B. 53, Foreclosure Rescue and Loan Modification
50 Amendments, to technically merge changes.
51 Utah Code Sections Affected:
52 AMENDS:
53 10-3-1110, as last amended by Laws of Utah 2008, Chapter 169
54 13-25a-111, as last amended by Laws of Utah 2005, Chapter 18
55 16-11-2, as last amended by Laws of Utah 2009, Chapter 220
56 17-50-106, as enacted by Laws of Utah 2008, Chapter 169
57 31A-2-402, as last amended by Laws of Utah 2009, Chapter 372
58 34-44-102, as enacted by Laws of Utah 2007, Chapter 65
59 34A-2-104, as last amended by Laws of Utah 2009, Chapter 185
60 41-1a-422, as last amended by Laws of Utah 2009, Chapters 183, 348, and 380
61 48-2c-1502, as last amended by Laws of Utah 2009, Chapter 141
62 57-11-2, as last amended by Laws of Utah 2009, Chapter 352
63 57-11-14, as last amended by Laws of Utah 2009, Chapter 352
64 57-19-14, as last amended by Laws of Utah 1990, Chapter 199
65 57-21-2, as last amended by Laws of Utah 2008, Chapter 382
66 57-23-5, as enacted by Laws of Utah 1991, Chapter 262
67 57-27-102, as enacted by Laws of Utah 2009, Chapter 194
68 58-56-16, as last amended by Laws of Utah 2009, Chapter 183
69 61-1-13, as last amended by Laws of Utah 2009, Chapters 351 and 355
70 61-2b-2, as last amended by Laws of Utah 2008, Chapters 382 and 387
71 61-2b-3, as last amended by Laws of Utah 2005, Chapter 199
72 61-2b-6, as last amended by Laws of Utah 2009, Chapters 183 and 352
73 61-2b-8, as last amended by Laws of Utah 2009, Chapter 352
74 61-2b-10, as last amended by Laws of Utah 2005, Chapter 199
75 61-2b-14, as last amended by Laws of Utah 2005, Chapter 199
76 61-2b-15, as last amended by Laws of Utah 2005, Chapter 199
77 61-2b-17, as last amended by Laws of Utah 2007, Chapter 325
78 61-2b-18, as last amended by Laws of Utah 2009, Chapter 183
79 61-2b-19, as last amended by Laws of Utah 2005, Chapter 199
80 61-2b-20, as last amended by Laws of Utah 2009, Chapter 352
81 61-2b-25, as last amended by Laws of Utah 2008, Chapter 387
82 61-2b-28, as last amended by Laws of Utah 2008, Chapters 382 and 387
83 61-2b-29, as last amended by Laws of Utah 2009, Chapter 352
84 61-2b-30.5, as last amended by Laws of Utah 2008, Chapter 387
85 61-2b-32, as last amended by Laws of Utah 1999, Chapter 117
86 61-2b-33, as last amended by Laws of Utah 2009, Chapter 352
87 61-2b-36, as last amended by Laws of Utah 2005, Chapter 199
88 61-2b-39, as last amended by Laws of Utah 2005, Chapter 199
89 61-2b-40, as last amended by Laws of Utah 2005, Chapter 199
90 61-2c-102, as last amended by Laws of Utah 2009, Chapter 372
91 61-2c-103, as last amended by Laws of Utah 2009, Chapters 183, 352, and 372
92 61-2c-104, as last amended by Laws of Utah 2009, Chapters 352 and 372
93 61-2c-105, as last amended by Laws of Utah 2009, Chapter 372
94 61-2c-106, as last amended by Laws of Utah 2009, Chapter 372
95 61-2c-201, as last amended by Laws of Utah 2009, Chapters 183 and 372
96 61-2c-202, as last amended by Laws of Utah 2009, Chapters 183 and 372
97 61-2c-203, as last amended by Laws of Utah 2009, Chapter 372
98 61-2c-204.1, as enacted by Laws of Utah 2009, Chapter 372
99 61-2c-205, as last amended by Laws of Utah 2009, Chapters 183, 352, and 372
100 61-2c-205.1, as enacted by Laws of Utah 2009, Chapter 372
101 61-2c-206, as last amended by Laws of Utah 2009, Chapters 183 and 372
102 61-2c-301, as last amended by Laws of Utah 2009, Chapters 72 and 372
103 61-2c-302, as last amended by Laws of Utah 2009, Chapter 372
104 61-2c-401, as last amended by Laws of Utah 2007, Chapter 325
105 61-2c-402, as last amended by Laws of Utah 2009, Chapters 352 and 372
106 61-2c-404, as last amended by Laws of Utah 2007, Chapter 325
107 61-2c-501, as last amended by Laws of Utah 2009, Chapter 352
108 61-2c-502, as last amended by Laws of Utah 2009, Chapters 352 and 372
109 61-2c-503, as last amended by Laws of Utah 2009, Chapter 352
110 61-2c-505, as enacted by Laws of Utah 2004, Chapter 297
111 61-2c-507, as last amended by Laws of Utah 2009, Chapter 372
112 63G-2-302, as last amended by Laws of Utah 2009, Chapters 126, 349, and 379
113 63J-1-602, as enacted by Laws of Utah 2009, Chapter 368
114 70D-3-102, as enacted by Laws of Utah 2009, Chapter 72
115 72-5-116, as last amended by Laws of Utah 2008, Chapter 169
116 ENACTS:
117 61-2-101, Utah Code Annotated 1953
118 61-2-102, Utah Code Annotated 1953
119 61-2-202, Utah Code Annotated 1953
120 61-2c-209, Utah Code Annotated 1953
121 61-2c-501.5, Utah Code Annotated 1953
122 61-2f-101, Utah Code Annotated 1953
123 61-2f-105, Utah Code Annotated 1953
124 61-2f-206, Utah Code Annotated 1953
125 61-2f-305, Utah Code Annotated 1953
126 RENUMBERS AND AMENDS:
127 61-2-201, (Renumbered from 61-2-5, as last amended by Laws of Utah 2009, Chapters
128 269 and 372)
129 61-2-203, (Renumbered from 61-2-5.1, as last amended by Laws of Utah 2008,
130 Chapter 382)
131 61-2-204, (Renumbered from 61-2-28, as last amended by Laws of Utah 2008,
132 Chapters 216 and 382)
133 61-2f-102, (Renumbered from 61-2-2, as last amended by Laws of Utah 2005, Chapter
134 257)
135 61-2f-103, (Renumbered from 61-2-5.5, as last amended by Laws of Utah 2008,
136 Chapter 387)
137 61-2f-104, (Renumbered from 61-2-14, as last amended by Laws of Utah 1983,
138 Chapter 257)
139 61-2f-106, (Renumbered from 61-2-22, as last amended by Laws of Utah 1985,
140 Chapter 162)
141 61-2f-201, (Renumbered from 61-2-1, as last amended by Laws of Utah 1996, Chapter
142 102)
143 61-2f-202, (Renumbered from 61-2-3, as last amended by Laws of Utah 2009, Chapter
144 356)
145 61-2f-203, (Renumbered from 61-2-6, as last amended by Laws of Utah 2009, Chapter
146 352)
147 61-2f-204, (Renumbered from 61-2-9, as last amended by Laws of Utah 2009,
148 Chapters 183 and 352)
149 61-2f-205, (Renumbered from 61-2-7, as last amended by Laws of Utah 1991, Chapter
150 165)
151 61-2f-207, (Renumbered from 61-2-7.1, as last amended by Laws of Utah 2009,
152 Chapter 183)
153 61-2f-301, (Renumbered from 61-2-7.2, as last amended by Laws of Utah 2009,
154 Chapter 352)
155 61-2f-302, (Renumbered from 61-2-10, as last amended by Laws of Utah 2009,
156 Chapter 352)
157 61-2f-303, (Renumbered from 61-2-25, as enacted by Laws of Utah 2003, Chapter
158 264)
159 61-2f-304, (Renumbered from 61-2-8, as last amended by Laws of Utah 2000, Chapter
160 86)
161 61-2f-306, (Renumbered from 61-2-20, as last amended by Laws of Utah 2008,
162 Chapter 387)
163 61-2f-307, (Renumbered from 61-2-26, as last amended by Laws of Utah 2008,
164 Chapter 382)
165 61-2f-308, (Renumbered from 61-2-27, as enacted by Laws of Utah 2005, Chapter
166 252)
167 61-2f-401, (Renumbered from 61-2-11, as last amended by Laws of Utah 2009,
168 Chapter 352)
169 61-2f-402, (Renumbered from 61-2-11.5, as last amended by Laws of Utah 2007,
170 Chapter 325)
171 61-2f-403, (Renumbered from 61-2-24, as enacted by Laws of Utah 1996, Chapter
172 102)
173 61-2f-404, (Renumbered from 61-2-12, as last amended by Laws of Utah 2009,
174 Chapter 352)
175 61-2f-405, (Renumbered from 61-2-17, as last amended by Laws of Utah 2009,
176 Chapter 352)
177 61-2f-406, (Renumbered from 61-2-13, as last amended by Laws of Utah 2008,
178 Chapter 387)
179 61-2f-407, (Renumbered from 61-2-21, as last amended by Laws of Utah 2008,
180 Chapters 370, 382, and 387)
181 61-2f-408, (Renumbered from 61-2-13.5, as enacted by Laws of Utah 1997, Chapter
182 232)
183 61-2f-409, (Renumbered from 61-2-18, as last amended by Laws of Utah 1985,
184 Chapter 162)
185 61-2f-501, (Renumbered from 61-2a-1, as enacted by Laws of Utah 1975, Chapter
186 172)
187 61-2f-502, (Renumbered from 61-2a-2, as last amended by Laws of Utah 2009,
188 Chapter 352)
189 61-2f-503, (Renumbered from 61-2a-3, as last amended by Laws of Utah 2009,
190 Chapter 352)
191 61-2f-504, (Renumbered from 61-2a-12, as last amended by Laws of Utah 2009,
192 Chapter 352)
193 61-2f-505, (Renumbered from 61-2a-4, as last amended by Laws of Utah 2009,
194 Chapter 352)
195 61-2f-506, (Renumbered from 61-2a-5, as last amended by Laws of Utah 2009,
196 Chapter 352)
197 61-2f-507, (Renumbered from 61-2a-6, as last amended by Laws of Utah 2009,
198 Chapter 352)
199 61-2f-508, (Renumbered from 61-2a-7, as last amended by Laws of Utah 2009,
200 Chapter 352)
201 61-2f-509, (Renumbered from 61-2a-8, as last amended by Laws of Utah 1983,
202 Chapter 256)
203 61-2f-510, (Renumbered from 61-2a-9, as last amended by Laws of Utah 2009,
204 Chapter 352)
205 61-2f-511, (Renumbered from 61-2a-11, as last amended by Laws of Utah 2009,
206 Chapter 352)
207 61-2f-512, (Renumbered from 61-2a-10, as last amended by Laws of Utah 1983,
208 Chapter 256)
209 REPEALS:
210 61-2-4, as last amended by Laws of Utah 1996, Chapter 102
211 61-2b-11, as last amended by Laws of Utah 1999, Chapter 117
212 61-2b-16, as last amended by Laws of Utah 1999, Chapter 117
213 61-2c-207, as last amended by Laws of Utah 2009, Chapter 372
214 61-2c-208, as last amended by Laws of Utah 2009, Chapters 183 and 372
215 Utah Code Sections Affected by Coordination Clause:
216 61-2c-102, as last amended by Laws of Utah 2009, Chapter 372
217 61-2f-102, Utah Code Annotated 1953
218
219 Be it enacted by the Legislature of the state of Utah:
220 Section 1. Section 10-3-1110 is amended to read:
221 10-3-1110. Exemption from state licensure by Division of Real Estate.
222 In accordance with Section [
223 exempt from licensure under Title 61, Chapter [
224 Licensing and Practices Act:
225 (1) when engaging in an act on behalf of the municipality in accordance with:
226 (a) this title; or
227 (b) Title 11, Cities, Counties, and Local Taxing Units; and
228 (2) if the act described in Subsection (1) is related to one or more of the following:
229 (a) acquiring real [
230 (b) disposing of real [
231 (c) providing services that constitute property management, as defined in Section
232 [
233 (d) leasing real [
234 Section 2. Section 13-25a-111 is amended to read:
235 13-25a-111. Exemptions.
236 Notwithstanding any other provision of this chapter, Sections 13-25a-103 and
237 13-25a-108 do not apply to:
238 (1) a telephone call made for a charitable purpose as defined in Section 13-22-2 ;
239 (2) a charitable solicitation as defined in Section 13-22-2 ; or
240 (3) a person who holds a license or registration:
241 (a) under Title 31A, Insurance Code;
242 (b) issued by the Division of Real Estate established in Section [
243 (c) issued by the National Association of Securities Dealers.
244 Section 3. Section 16-11-2 is amended to read:
245 16-11-2. Definitions.
246 As used in this chapter:
247 (1) "Filed" means the division has received and approved, as to form, a document
248 submitted under the provisions of this chapter, and has marked on the face of the document a
249 stamp or seal indicating the time of day and date of approval, the name of the division, the
250 division director's signature and division seal, or facsimiles of the signature or seal.
251 (2) "Professional corporation" means a corporation organized under this chapter.
252 (3) "Professional service" means the personal service rendered by:
253 (a) a physician, surgeon, or doctor of medicine holding a license under Title 58,
254 Chapter 67, Utah Medical Practice Act, and any subsequent laws regulating the practice of
255 medicine;
256 (b) a doctor of dentistry holding a license under Title 58, Chapter 69, Dentist and
257 Dental Hygienist Practice Act, and any subsequent laws regulating the practice of dentistry;
258 (c) an osteopathic physician or surgeon holding a license under Title 58, Chapter 68,
259 Utah Osteopathic Medical Practice Act, and any subsequent laws regulating the practice of
260 osteopathy;
261 (d) a chiropractor holding a license under Title 58, Chapter 73, Chiropractic Physician
262 Practice Act, and any subsequent laws regulating the practice of chiropractic;
263 (e) a podiatric physician holding a license under Title 58, Chapter 5a, Podiatric
264 Physician Licensing Act, and any subsequent laws regulating the practice of podiatry;
265 (f) an optometrist holding a license under Title 58, Chapter 16a, Utah Optometry
266 Practice Act, and any subsequent laws regulating the practice of optometry;
267 (g) a veterinarian holding a license under Title 58, Chapter 28, Veterinary Practice
268 Act, and any subsequent laws regulating the practice of veterinary medicine;
269 (h) an architect holding a license under Title 58, Chapter 3a, Architects Licensing Act,
270 and any subsequent laws regulating the practice of architecture;
271 (i) a public accountant holding a license under Title 58, Chapter 26a, Certified Public
272 Accountant Licensing Act, and any subsequent laws regulating the practice of public
273 accounting;
274 (j) a naturopath holding a license under Title 58, Chapter 71, Naturopathic Physician
275 Practice Act, and any subsequent laws regulating the practice of naturopathy;
276 (k) a pharmacist holding a license under Title 58, Chapter 17b, Pharmacy Practice
277 Act, and any subsequent laws regulating the practice of pharmacy;
278 (l) an attorney granted the authority to practice law by:
279 (i) the Utah Supreme Court; or
280 (ii) the Supreme Court, other court, agency, instrumentality, or regulating board that
281 licenses or regulates the authority to practice law in any state or territory of the United States
282 other than Utah;
283 (m) a professional engineer registered under Title 58, Chapter 22, Professional
284 Engineers and Professional Land Surveyors Licensing Act;
285 (n) a [
286 holding a license under Title 61, Chapter [
287 and Practices Act, and any subsequent laws regulating the selling, exchanging, purchasing,
288 renting, or leasing of real estate;
289 (o) a psychologist holding a license under Title 58, Chapter 61, Psychologist
290 Licensing Act, and any subsequent laws regulating the practice of psychology;
291 (p) a clinical or certified social worker holding a license under Title 58, Chapter 60,
292 Part 2, Social Worker Licensing Act, and any subsequent laws regulating the practice of social
293 work;
294 (q) a physical therapist holding a license under Title 58, Chapter 24b, Physical
295 Therapy Practice Act, and any subsequent laws regulating the practice of physical therapy;
296 (r) a nurse licensed under Title 58, Chapter 31b, Nurse Practice Act, or Title 58,
297 Chapter 44a, Nurse Midwife Practice Act; [
298 (s) a landscape architect licensed under Title 58, Chapter 53, Landscape Architects
299 Licensing Act, and any subsequent laws regulating landscape architects[
300 (t) an individual licensed, certified, or registered under Title 61, Chapter 2b, Real
301 Estate Appraiser Licensing and Certification Act, and any subsequent laws regulating the
302 practice of appraising real estate.
303 (4) "Regulating board" means the board that is charged with the licensing and
304 regulation of the practice of the profession which the professional corporation is organized to
305 render. The definitions of Title 16, Chapter 10a, Utah Revised Business Corporation Act,
306 apply to this chapter unless the context clearly indicates that a different meaning is intended.
307 Section 4. Section 17-50-106 is amended to read:
308 17-50-106. Exemption from state licensure by Division of Real Estate.
309 In accordance with Section [
310 from licensure under Title 61, Chapter [
311 and Practices Act:
312 (1) when engaging in an act on behalf of the county in accordance with:
313 (a) this title; or
314 (b) Title 11, Cities, Counties, and Local Taxing Units; and
315 (2) if the act described in Subsection (1) is related to one or more of the following:
316 (a) acquiring real [
317 (b) disposing of real [
318 (c) providing services that constitute property management, as defined in Section
319 [
320 (d) leasing real [
321 Section 5. Section 31A-2-402 is amended to read:
322 31A-2-402. Definitions.
323 As used in this part:
324 (1) "Commission" means the Title and Escrow Commission created in Section
325 31A-2-403 .
326 (2) "Concurrence" means the entities given a concurring role must jointly agree for the
327 action to be taken.
328 (3) "Dual licensed title licensee" means a title licensee who holds:
329 (a) a producer license as a title licensee; and
330 (b) a license or certificate under:
331 (i) Title 61, Chapter [
332 Practices Act;
333 (ii) Title 61, Chapter 2b, Real Estate Appraiser Licensing and Certification Act; or
334 (iii) Title 61, Chapter 2c, Utah Residential Mortgage Practices and Licensing Act.
335 (4) "Real Estate Commission" means the Real Estate Commission created in Section
336 [
337 (5) "Title licensee" means a person licensed under this title as:
338 (a) an agency with a title insurance line of authority;
339 (b) a producer with:
340 (i) a general title insurance line of authority; or
341 (ii) a specific category of authority for title insurance; or
342 (c) a title insurance adjuster.
343 Section 6. Section 34-44-102 is amended to read:
344 34-44-102. Definitions.
345 As used in this chapter:
346 (1) "Business relationship" means an agreement that governs the relationship of
347 principal and sales representative.
348 (2) "Commission" means:
349 (a) compensation:
350 (i) that accrues to a sales representative;
351 (ii) for payment by a principal; and
352 (iii) at a rate expressed as a percentage of the dollar amount of sales, orders, or profits;
353 or
354 (b) any other method of compensation agreed to between a sales representative and a
355 principal including:
356 (i) fees for services; and
357 (ii) a retainer.
358 (3) "Principal" means a person who:
359 (a) engages in any of the following activities with regard to a product or service:
360 (i) manufactures;
361 (ii) produces;
362 (iii) imports;
363 (iv) sells; or
364 (v) distributes;
365 (b) establishes a business relationship with a sales representative to solicit orders for a
366 product or a service described in Subsection (3)(a); and
367 (c) agrees to compensate a sales representative, in whole or in part, by commission.
368 (4) (a) Except as provided in Subsection (4)(b), "sales representative" means a person
369 who enters into a business relationship with a principal:
370 (i) to solicit orders for a product or a service described in Subsection (3)(a); and
371 (ii) under which the person is compensated, in whole or in part, by commission.
372 (b) "Sales representative" does not include:
373 (i) an employee of a principal;
374 (ii) a person licensed under Title 31A, Insurance Code;
375 (iii) a person licensed under Title 41, Chapter 3, Part 2, Licensing;
376 (iv) a person licensed under Title 61, Chapter [
377 Estate Licensing and Practices Act;
378 (v) a person who provides a product or service under a business relationship with a
379 principal that is incident to the purchase or sale of real property; or
380 (vi) a person who places an order or purchases a product or service for that person's
381 own account for resale.
382 (5) "Terminates" or "termination" means the end of a business relationship between a
383 sales representative and a principal, whether by:
384 (a) agreement;
385 (b) expiration of a time period; or
386 (c) exercise of a right of termination by either the principal or the sales representative.
387 Section 7. Section 34A-2-104 is amended to read:
388 34A-2-104. "Employee," "worker," and "operative" defined -- Specific
389 circumstances -- Exemptions.
390 (1) As used in this chapter and Chapter 3, Utah Occupational Disease Act,
391 "employee," "worker," and "operative" mean:
392 (a) (i) an elective or appointive officer and any other person:
393 (A) in the service of:
394 (I) the state;
395 (II) a county, city, or town within the state; or
396 (III) a school district within the state;
397 (B) serving the state, or any county, city, town, or school district under:
398 (I) an election;
399 (II) appointment; or
400 (III) any contract of hire, express or implied, written or oral; and
401 (ii) including:
402 (A) an officer or employee of the state institutions of learning; and
403 (B) a member of the National Guard while on state active duty; and
404 (b) a person in the service of any employer, as defined in Section 34A-2-103 , who
405 employs one or more workers or operatives regularly in the same business, or in or about the
406 same establishment:
407 (i) under any contract of hire:
408 (A) express or implied; and
409 (B) oral or written;
410 (ii) including aliens and minors, whether legally or illegally working for hire; and
411 (iii) not including any person whose employment:
412 (A) is casual; and
413 (B) not in the usual course of the trade, business, or occupation of the employee's
414 employer.
415 (2) (a) Unless a lessee provides coverage as an employer under this chapter and
416 Chapter 3, any lessee in mines or of mining property and each employee and sublessee of the
417 lessee shall be:
418 (i) covered for compensation by the lessor under this chapter and Chapter 3;
419 (ii) subject to this chapter and Chapter 3; and
420 (iii) entitled to the benefits of this chapter and Chapter 3, to the same extent as if the
421 lessee, employee, or sublessee were employees of the lessor drawing the wages paid employees
422 for substantially similar work.
423 (b) The lessor may deduct from the proceeds of ores mined by the lessees an amount
424 equal to the insurance premium for that type of work.
425 (3) (a) A partnership or sole proprietorship may elect to include any partner of the
426 partnership or owner of the sole proprietorship as an employee of the partnership or sole
427 proprietorship under this chapter and Chapter 3.
428 (b) If a partnership or sole proprietorship makes an election under Subsection (3)(a),
429 the partnership or sole proprietorship shall serve written notice upon its insurance carrier
430 naming the persons to be covered.
431 (c) A partner of a partnership or owner of a sole proprietorship may not be considered
432 an employee of the partner's partnership or the owner's sole proprietorship under this chapter
433 or Chapter 3 until the notice described in Subsection (3)(b) is given.
434 (d) For premium rate making, the insurance carrier shall assume the salary or wage of
435 the partner or sole proprietor electing coverage under Subsection (3)(a) to be 100% of the
436 state's average weekly wage.
437 (4) (a) A corporation may elect not to include any director or officer of the corporation
438 as an employee under this chapter and Chapter 3.
439 (b) If a corporation makes an election under Subsection (4)(a), the corporation shall
440 serve written notice upon its insurance carrier naming the persons to be excluded from
441 coverage.
442 (c) A director or officer of a corporation is considered an employee under this chapter
443 and Chapter 3 until the notice described in Subsection (4)(b) is given.
444 (5) As used in this chapter and Chapter 3, "employee," "worker," and "operative" do
445 not include:
446 (a) a [
447 [
448 if:
449 (i) substantially all of the [
450 income for services is from real estate commissions; and
451 (ii) [
452 associate broker's services are performed under a written contract that provides that:
453 (A) the real estate agent is an independent contractor; and
454 (B) the [
455 an employee for federal income tax purposes;
456 (b) an offender performing labor under Section 64-13-16 or 64-13-19 , except as
457 required by federal statute or regulation;
458 (c) an individual who for an insurance producer, as defined in Section 31A-1-301 ,
459 solicits, negotiates, places or procures insurance if:
460 (i) substantially all of the individual's income from those services is from insurance
461 commissions; and
462 (ii) the services of the individual are performed under a written contract that states that
463 the individual:
464 (A) is an independent contractor;
465 (B) is not to be treated as an employee for federal income tax purposes; and
466 (C) can derive income from more than one insurance company;
467 (d) notwithstanding Subsection 34A-2-103 (4), an individual who provides domestic
468 work for a person if:
469 (i) the person for whom the domestic work is being provided receives or is eligible to
470 receive the domestic work under a state or federal program designed to pay the costs of
471 domestic work to prevent the person from being placed in:
472 (A) an institution; or
473 (B) a more restrictive placement than where that person resides at the time the person
474 receives the domestic work;
475 (ii) the individual is paid by a person designated by the Secretary of the Treasury in
476 accordance with Section 3504, Internal Revenue Code, as a fiduciary, agent, or other person
477 that has the control, receipt, custody, or disposal of, or pays the wages of the individual; and
478 (iii) the domestic work is performed under a written contract that notifies the
479 individual that the individual is not an employee under this chapter or Chapter 3; or
480 (e) subject to Subsections (6) and (7), an individual who:
481 (i) (A) owns a motor vehicle; or
482 (B) leases a motor vehicle to a motor carrier;
483 (ii) personally operates the motor vehicle described in Subsection (5)(e)(i);
484 (iii) operates the motor vehicle described in Subsection (5)(e)(i) under a written
485 agreement with the motor carrier that states that the individual operates the motor vehicle as
486 an independent contractor; and
487 (iv) provides to the motor carrier at the time the written agreement described in
488 Subsection (5)(e)(iii) is executed or as soon after the execution as provided by an insurer:
489 (A) a copy of a workers' compensation coverage waiver issued pursuant to Section
490 31A-22-1011 by an insurer to the individual; and
491 (B) proof that the individual is covered by occupational accident related insurance.
492 (6) An individual described in Subsection (5)(d) or (e) may become an employee
493 under this chapter and Chapter 3 if the employer of the individual complies with:
494 (a) this chapter and Chapter 3; and
495 (b) commission rules.
496 (7) For purposes of Subsection (5)(e):
497 (a) "Motor carrier" means a person engaged in the business of transporting freight,
498 merchandise, or other property by a commercial vehicle on a highway within this state.
499 (b) "Motor vehicle" means a self-propelled vehicle intended primarily for use and
500 operation on the highways, including a trailer or semitrailer designed for use with another
501 motorized vehicle.
502 (c) "Occupational accident related insurance" means insurance that provides the
503 following coverage for an injury sustained in the course of working under a written agreement
504 described in Subsection (5)(e)(iii):
505 (i) disability benefits;
506 (ii) death benefits;
507 (iii) medical expense benefits, which include:
508 (A) hospital coverage;
509 (B) surgical coverage;
510 (C) prescription drug coverage; and
511 (D) dental coverage.
512 Section 8. Section 41-1a-422 is amended to read:
513 41-1a-422. Support special group license plates -- Contributor -- Voluntary
514 contribution collection procedures.
515 (1) As used in this section:
516 (a) (i) Except as provided in Subsection (1)(a)(ii), "contributor" means a person who
517 has donated or in whose name at least $25 has been donated to:
518 (A) a scholastic scholarship fund of a single named institution;
519 (B) the Department of Veterans' Affairs for veterans' programs;
520 (C) the Division of Wildlife Resources for the Wildlife Resources Account created in
521 Section 23-14-13 , for conservation of wildlife and the enhancement, preservation, protection,
522 access, and management of wildlife habitat;
523 (D) the Department of Agriculture and Food for the benefit of conservation districts;
524 (E) the Division of Parks and Recreation for the benefit of snowmobile programs;
525 (F) the Guardian Ad Litem Services Account and the Children's Museum of Utah,
526 with the donation evenly divided between the two;
527 (G) the Boy Scouts of America for the benefit of a Utah Boy Scouts of America
528 council as specified by the contributor;
529 (H) No More Homeless Pets in Utah for distribution to organizations or individuals
530 that provide spay and neuter programs that subsidize the sterilization of domestic animals;
531 (I) the Utah Alliance of Boys and Girls Clubs, Inc. to provide and enhance youth
532 development programs;
533 (J) the Utah Association of Public School Foundations to support public education;
534 (K) the Utah Housing Opportunity Restricted Account created in Section [
535 61-2-204 to assist people who have severe housing needs;
536 (L) the Public Safety Honoring Heroes Restricted Account created in Section 53-1-118
537 to support the families of fallen Utah Highway Patrol troopers and other Department of Public
538 Safety employees;
539 (M) the Division of Parks and Recreation for distribution to organizations that provide
540 support for Zion National Park;
541 (N) the Firefighter Support Restricted Account created in Section 53-7-109 to support
542 firefighter organizations; or
543 (O) the Share the Road Bicycle Support Restricted Account created in Section
544 72-2-127 to support bicycle operation and safety awareness programs.
545 (ii) (A) For a veterans' special group license plate, "contributor" means a person who
546 has donated or in whose name at least a $25 donation at the time of application and $10
547 annual donation thereafter has been made.
548 (B) For a Utah Housing Opportunity special group license plate, "contributor" means a
549 person who:
550 (I) has donated or in whose name at least $30 has been donated at the time of
551 application and annually after the time of application; and
552 (II) is a member of a trade organization for real estate licensees that has more than
553 15,000 Utah members.
554 (C) For an Honoring Heroes special group license plate, "contributor" means a person
555 who has donated or in whose name at least $35 has been donated at the time of application
556 and annually thereafter.
557 (D) For a firefighter support special group license plate, "contributor" means a person
558 who:
559 (I) has donated or in whose name at least $15 has been donated at the time of
560 application and annually after the time of application; and
561 (II) is a currently employed, volunteer, or retired firefighter.
562 (b) "Institution" means a state institution of higher education as defined under Section
563 53B-3-102 or a private institution of higher education in the state accredited by a regional or
564 national accrediting agency recognized by the United States Department of Education.
565 (2) (a) An applicant for original or renewal collegiate special group license plates
566 under Subsection (1)(a)(i) must be a contributor to the institution named in the application and
567 present the original contribution verification form under Subsection (2)(b) or make a
568 contribution to the division at the time of application under Subsection (3).
569 (b) An institution with a support special group license plate shall issue to a contributor
570 a verification form designed by the commission containing:
571 (i) the name of the contributor;
572 (ii) the institution to which a donation was made;
573 (iii) the date of the donation; and
574 (iv) an attestation that the donation was for a scholastic scholarship.
575 (c) The state auditor may audit each institution to verify that the moneys collected by
576 the institutions from contributors are used for scholastic scholarships.
577 (d) After an applicant has been issued collegiate license plates or renewal decals, the
578 commission shall charge the institution whose plate was issued, a fee determined in
579 accordance with Section 63J-1-504 for management and administrative expenses incurred in
580 issuing and renewing the collegiate license plates.
581 (e) If the contribution is made at the time of application, the contribution shall be
582 collected, treated, and deposited as provided under Subsection (3).
583 (3) (a) An applicant for original or renewal support special group license plates under
584 this section must be a contributor to the sponsoring organization associated with the license
585 plate.
586 (b) This contribution shall be:
587 (i) unless collected by the named institution under Subsection (2), collected by the
588 division;
589 (ii) considered a voluntary contribution for the funding of the activities specified
590 under this section and not a motor vehicle registration fee;
591 (iii) deposited into the appropriate account less actual administrative costs associated
592 with issuing the license plates; and
593 (iv) for a firefighter special group license plate, deposited into the appropriate account
594 less:
595 (A) the costs of reordering firefighter special group license plate decals; and
596 (B) the costs of replacing recognition special group license plates with new license
597 plates under Subsection 41-1a-1211 (13).
598 (c) The donation described in Subsection (1)(a) must be made in the 12 months prior
599 to registration or renewal of registration.
600 (d) The donation described in Subsection (1)(a) shall be a one-time donation made to
601 the division when issuing original:
602 (i) snowmobile license plates; or
603 (ii) conservation license plates.
604 (4) Veterans' license plates shall display one of the symbols representing the Army,
605 Navy, Air Force, Marines, Coast Guard, or American Legion.
606 Section 9. Section 48-2c-1502 is amended to read:
607 48-2c-1502. Definitions.
608 As used in this part:
609 (1) "Professional services company" means a limited liability company organized
610 under this part to render professional services.
611 (2) "Professional services" means the personal services rendered by:
612 (a) an architect holding a license under Title 58, Chapter 3a, Architects Licensing Act,
613 and any subsequent laws regulating the practice of architecture;
614 (b) an attorney granted the authority to practice law by the:
615 (i) Supreme Court of Utah; or
616 (ii) the Supreme Court, other court, agency, instrumentality, or regulating board that
617 licenses or regulates the authority to practice law in any state or territory of the United States
618 other than Utah;
619 (c) a chiropractor holding a license under Title 58, Chapter 73, Chiropractic Physician
620 Practice Act, and any subsequent laws regulating the practice of chiropractic;
621 (d) a doctor of dentistry holding a license under Title 58, Chapter 69, [
622 Dentist and Dental [
623 the practice of dentistry;
624 (e) a professional engineer registered under Title 58, Chapter 22, Professional
625 Engineers and Professional Land Surveyors Licensing Act;
626 (f) a naturopath holding a license under Title 58, Chapter 71, Naturopathic Physician
627 Practice Act, and any subsequent laws regulating the practice of naturopathy;
628 (g) a nurse licensed under Title 58, Chapter 31b, Nurse Practice Act, or Title 58,
629 Chapter 44a, Nurse Midwife Practice Act;
630 (h) an optometrist holding a license under Title 58, Chapter 16a, Utah Optometry
631 Practice Act, and any subsequent laws regulating the practice of optometry;
632 (i) an osteopathic physician or surgeon holding a license under Title 58, Chapter 68,
633 Utah Osteopathic Medical Practice Act, and any subsequent laws regulating the practice of
634 osteopathy;
635 (j) a pharmacist holding a license under Title 58, Chapter 17b, Pharmacy Practice Act,
636 and any subsequent laws regulating the practice of pharmacy;
637 (k) a physician, surgeon, or doctor of medicine holding a license under Title 58,
638 Chapter 67, Utah Medical Practice Act, and any subsequent laws regulating the practice of
639 medicine;
640 (l) a physical therapist holding a license under Title 58, Chapter 24b, Physical Therapy
641 Practice Act, and any subsequent laws regulating the practice of physical therapy;
642 (m) a podiatric physician holding a license under Title 58, Chapter 5a, Podiatric
643 Physician Licensing Act, and any subsequent laws regulating the practice of podiatry;
644 (n) a psychologist holding a license under Title 58, Chapter 61, Psychologist
645 Licensing Act, and any subsequent laws regulating the practice of psychology;
646 (o) a public accountant holding a license under Title 58, Chapter 26a, Certified Public
647 Accountant Licensing Act, and any subsequent laws regulating the practice of public
648 accounting;
649 (p) a [
650 holding a license under Title 61, Chapter [
651 and Practices Act, and any subsequent laws regulating the sale, exchange, purchase, rental, or
652 leasing of real estate;
653 (q) a clinical or certified social worker holding a license under Title 58, Chapter 60,
654 Part 2, Social Worker Licensing Act, and any subsequent laws regulating the practice of social
655 work;
656 (r) a mental health therapist holding a license under Title 58, Chapter 60, Mental
657 Health Professional Practice Act, and any subsequent laws regulating the practice of mental
658 health therapy; [
659 (s) a veterinarian holding a license under Title 58, Chapter 28, Veterinary Practice
660 Act, and any subsequent laws regulating the practice of veterinary medicine[
661 (t) an individual licensed, certified, or registered under Title 61, Chapter 2b, Real
662 Estate Appraiser Licensing and Certification Act, and any subsequent laws regulating the
663 practice of appraising real estate.
664 (3) "Regulating board" means the board or agency organized pursuant to state law that
665 is charged with the licensing and regulation of the practice of the profession that a company is
666 organized to render.
667 Section 10. Section 57-11-2 is amended to read:
668 57-11-2. Definitions.
669 As used in this chapter:
670 (1) (a) "Disposition" includes sale, lease, assignment, award by lottery, or any other
671 transaction concerning a subdivision, if undertaken for gain or profit.
672 (b) "Disposition" does not include the sale or lease of land held by railroads for right
673 of way if the land is within 400 feet of the center line of a railroad tract.
674 (2) "Division" means the Division of Real Estate created in Section [
675 (3) "Federal act" means the federal Interstate Land Sales Full Disclosure Act, 15
676 U.S.C. Sec. 1701, et seq., or any successor federal act.
677 (4) (a) "Industrial park" means a subdivision or subdivided lands offered as a part of a
678 common promotional plan of advertising and sale zoned for office, manufacturing,
679 warehousing, commercial, industrial, distribution, or wholesale use and utilized for one or
680 more of those purposes.
681 (b) "Industrial park" does not include land offered for sale that is designed or intended
682 to be used for recreational, residential, including multiple family dwellings, or agricultural
683 purposes.
684 (5) "Offer" includes an inducement, solicitation, or attempt to encourage a person to
685 acquire an interest in land if undertaken for gain or profit.
686 (6) "Person" includes:
687 (a) a business trust;
688 (b) an estate;
689 (c) a trust;
690 (d) a partnership;
691 (e) an unincorporated association;
692 (f) two or more of any entity having a joint or common interest; or
693 (g) any other legal or commercial entity.
694 (7) "Purchaser" means a person who acquires or attempts to acquire or succeeds to an
695 interest in land.
696 (8) "Residential building" means a structure intended for occupation as a residence
697 which, at the time of an offer or disposition of the unit on which it is situated, or on which
698 there is a legal obligation on the part of the seller to complete construction of it within two
699 years from date of disposition, has, or if completed would have, ready access to water, gas,
700 electricity, and roads.
701 (9) "Subdivider" means:
702 (a) an owner of an interest in subdivided lands who offers the subdivided lands for
703 disposition; or
704 (b) a principal agent of an owner of an interest in subdivided lands if the owner is
705 inactive.
706 (10) (a) "Subdivision" and "subdivided lands" means land that is divided or is
707 proposed to be divided for the purpose of disposition into 10 or more units including land,
708 whether contiguous or not, if 10 or more units are offered as a part of a common promotional
709 plan of advertising and sale.
710 (b) If a subdivision is offered by a developer or group of developers, and the land is
711 contiguous or is known, designated, or advertised as a common tract or by a common name,
712 that land is presumed, without regard to the number of units covered by each individual
713 offering, to be part of a common promotional plan.
714 (11) "Unit" includes a lot, parcel, or other interest in land separately offered for
715 disposition.
716 Section 11. Section 57-11-14 is amended to read:
717 57-11-14. Revocation, suspension, or denial of registration -- Grounds --
718 Suspension or revocation of real estate license.
719 (1) (a) If the division makes a written finding of fact that a subdivider engages in one
720 or more acts described in Subsection (1)(b), the division may:
721 (i) deny an application for registration;
722 (ii) revoke, suspend, or deny reissuance of a registration; or
723 (iii) impose a civil penalty not to exceed the greater of:
724 (A) $2,500 for each violation; or
725 (B) the amount of any gain or economic benefit derived from each violation.
726 (b) Subsection (1)(a) applies if the division makes a written finding of fact that a
727 subdivider:
728 (i) fails to comply with the terms of a cease and desist order;
729 (ii) is convicted in a court prior or subsequent to the filing of the application for
730 registration of a crime involving:
731 (A) fraud;
732 (B) deception;
733 (C) false pretenses;
734 (D) misrepresentation;
735 (E) false advertising; or
736 (F) dishonest dealing in real estate transactions;
737 (iii) is subject to an injunction or administrative order restraining a false or misleading
738 promotional plan involving land dispositions;
739 (iv) disposes of, conceals, or diverts funds or assets of any person so as to defeat the
740 rights of subdivision purchasers;
741 (v) fails to perform faithfully a stipulation or agreement made with the division as an
742 inducement to:
743 (A) grant a registration;
744 (B) reinstate a registration;
745 (C) revoke a cease and desist order; or
746 (D) approve any promotional plan or public offering statement;
747 (vi) makes an intentional misrepresentation, or conceals a material fact, in an
748 application for registration;
749 (vii) violates this chapter or the rules adopted under this chapter;
750 (viii) directly or through an agent or employee knowingly engages in false, deceptive,
751 or misleading advertising, promotional, or sales methods to offer or dispose of an interest in
752 subdivided lands;
753 (ix) engages in the offering of subdivided lands that has constituted or that may
754 constitute a fraud upon purchasers or prospective purchasers of the subdivided lands; or
755 (x) engages in a dishonest practice in any industry involving sales to consumers.
756 (c) The division shall accompany with a finding of fact required by this Subsection (1)
757 a concise and explicit statement of the underlying facts supporting the finding.
758 (2) As an alternative to revoking the registration of a subdivider, the director may
759 issue a cease and desist order if after notice and a hearing the director finds that the subdivider
760 is guilty of a violation for which revocation may be ordered.
761 (3) (a) The division shall suspend or revoke the license of a [
762 broker, associate broker, or [
763 time the director determines to be justified under the circumstances.
764 (b) A suspension or revocation under this section is in addition to any other penalty
765 that may be imposed under this chapter, subject to [
766 61-2f-404 .
767 Section 12. Section 57-19-14 is amended to read:
768 57-19-14. Registration of salesperson.
769 (1) Unless the transaction is exempt under Section 57-19-26 , it is unlawful for any
770 person to act as a salesperson marketing a project in this state without first registering under
771 this chapter as a salesperson.
772 (2) The fee for registration as a salesperson is waived by the division for persons
773 licensed by the division under Title 61, Chapter [
774 Act.
775 Section 13. Section 57-21-2 is amended to read:
776 57-21-2. Definitions.
777 As used in this chapter:
778 (1) "Aggrieved person" includes any person who:
779 (a) claims to have been injured by a discriminatory housing practice; or
780 (b) believes that the person will be injured by a discriminatory housing practice that is
781 about to occur.
782 (2) "Commission" means the Labor Commission.
783 (3) "Complainant" means an aggrieved person, including the director, who has
784 commenced a complaint with the division.
785 (4) "Conciliation" means the attempted resolution of issues raised by a complaint of
786 discriminatory housing practices by the investigation of the complaint through informal
787 negotiations involving the complainant, the respondent, and the division.
788 (5) "Conciliation agreement" means a written agreement setting forth the resolution of
789 the issues in conciliation.
790 (6) "Conciliation conference" means the attempted resolution of issues raised by a
791 complaint or by the investigation of a complaint through informal negotiations involving the
792 complainant, the respondent, and the division. The conciliation conference is not subject to
793 Title 63G, Chapter 4, Administrative Procedures Act.
794 (7) "Covered multifamily dwellings" means:
795 (a) buildings consisting of four or more dwelling units if the buildings have one or
796 more elevators; and
797 (b) ground floor units in other buildings consisting of four or more dwelling units.
798 (8) "Director" means the director of the division or a designee.
799 (9) (a) "Disability" means a physical or mental impairment that substantially limits
800 one or more of a person's major life activities, including a person having a record of such an
801 impairment or being regarded as having such an impairment.
802 (b) "Disability" does not include current illegal use of, or addiction to, any federally
803 controlled substance, as defined in Section 102 of the Controlled Substances Act, 21 U.S.C.
804 Sec. 802.
805 (10) "Discriminate" includes segregate or separate.
806 (11) "Discriminatory housing practice" means an act that is unlawful under this
807 chapter.
808 (12) "Division" means the Division of Antidiscrimination and Labor established under
809 the commission.
810 (13) (a) "Dwelling" means any building or structure, or a portion of a building or
811 structure, occupied as, or designed or intended for occupancy as, a residence of one or more
812 families.
813 (b) "Dwelling" also includes vacant land that is offered for sale or lease for the
814 construction or location of a dwelling as described in Subsection (13)(a).
815 (14) (a) "Familial status" means one or more individuals who have not attained the age
816 of 18 years being domiciled with:
817 (i) a parent or another person having legal custody of the individual or individuals; or
818 (ii) the designee of the parent or other person having custody, with the written
819 permission of the parent or other person.
820 (b) The protections afforded against discrimination on the basis of familial status shall
821 apply to any person who:
822 (i) is pregnant;
823 (ii) is in the process of securing legal custody of any individual who has not attained
824 the age of 18 years; or
825 (iii) is a single individual.
826 (15) "National origin" means the place of birth of an individual or of any lineal
827 ancestors.
828 (16) "Person" includes one or more individuals, corporations, limited liability
829 companies, partnerships, associations, labor organizations, legal representatives, mutual
830 companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in
831 cases under the United States Bankruptcy Code, receivers, and fiduciaries.
832 (17) "Presiding officer" has the same meaning as provided in Section 63G-4-103 .
833 (18) "Real estate broker" or "salesperson" means a principal [
834 associate [
835 [
836 (19) "Respondent" means a person against whom a complaint of housing
837 discrimination has been initiated.
838 (20) "Sex" means gender and includes pregnancy, childbirth, and disabilities related to
839 pregnancy or childbirth.
840 (21) "Source of income" means the verifiable condition of being a recipient of federal,
841 state, or local assistance, including medical assistance, or of being a tenant receiving federal,
842 state, or local subsidies, including rental assistance or rent supplements.
843 Section 14. Section 57-23-5 is amended to read:
844 57-23-5. License required.
845 Except as provided by Section [
846 otherwise dispose of a cooperative interest in this state unless [
847 the division under Title 61, Chapter [
848 Practices Act, as a principal [
849 sales agent.
850 Section 15. Section 57-27-102 is amended to read:
851 57-27-102. Definitions.
852 As used in this chapter:
853 (1) "Contaminated" or "contamination" is as defined in Section 19-6-902 .
854 (2) "Decontaminated" or "decontamination" is as defined in Section 19-6-902 .
855 (3) (a) "Owner" means the holder of a legal or equitable title or interest in real
856 property.
857 (b) "Owner" includes a shareholder, partner, operator, or other legal entity.
858 (4) "Real estate professional" means a licensee under Title 61, Chapter [
859
860 Section 16. Section 58-56-16 is amended to read:
861 58-56-16. Registration of dealers -- Bonding requirements -- Renewal --
862 Exemptions -- Discipline.
863 (1) Each person engaged in the sale of factory built housing in the state, except as
864 provided in Subsection (4), shall register with the division as a dealer.
865 (2) Each applicant for registration under this section shall:
866 (a) submit an application in a form prescribed by the division;
867 (b) pay a fee determined by the department under Section 63J-1-504 ; and
868 (c) provide the division with a registration bond in accordance with rules established
869 by the division.
870 (3) (a) The division shall issue each registration under this section in accordance with
871 a two-year renewal cycle established by rule.
872 (b) The division may by rule extend or shorten a renewal cycle by as much as one year
873 to stagger the renewal cycles it administers.
874 (c) Each registration under this section automatically expires on the expiration date on
875 the certificate of registration unless the registrant renews it in accordance with Section
876 58-1-308 .
877 (4) Subsection (1) does not apply to:
878 (a) a person not regularly engaged in the sale of factory built housing who is selling a
879 unit the person owns for the person's own account;
880 (b) a principal broker licensed under Title 61, Chapter [
881 Real Estate Licensing and Practices Act; or
882 (c) a sales agent or associate broker licensed under Title 61, Chapter [
883
884 agent for, and under the supervision of, the [
885 agent or associate broker is affiliated.
886 (5) Grounds for refusing to issue a registration, for refusing to renew a registration, for
887 revoking, suspending, restricting, or placing on probation a registration, for issuing a public or
888 private reprimand to a registrant, and for issuing a cease and desist order shall be in
889 accordance with Section 58-1-401 .
890 Section 17. Section 61-1-13 is amended to read:
891 61-1-13. Definitions.
892 (1) As used in this chapter:
893 (a) "Affiliate" means a person that, directly or indirectly, through one or more
894 intermediaries, controls or is controlled by, or is under common control with a person
895 specified.
896 (b) (i) "Agent" means an individual other than a broker-dealer who represents a
897 broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities.
898 (ii) "Agent" does not include an individual who represents:
899 (A) an issuer, who receives no commission or other remuneration, directly or
900 indirectly, for effecting or attempting to effect purchases or sales of securities in this state, and
901 who effects transactions:
902 (I) in securities exempted by Subsection 61-1-14 (1)(a), (b), (c), or (g);
903 (II) exempted by Subsection 61-1-14 (2);
904 (III) in a covered security as described in Sections 18(b)(3) and 18(b)(4)(D) of the
905 Securities Act of 1933; or
906 (IV) with existing employees, partners, officers, or directors of the issuer; or
907 (B) a broker-dealer in effecting transactions in this state limited to those transactions
908 described in Section 15(h)(2) of the Securities Exchange Act of 1934.
909 (iii) A partner, officer, or director of a broker-dealer or issuer, or a person occupying a
910 similar status or performing similar functions, is an agent only if the partner, officer, director,
911 or person otherwise comes within the definition of "agent."
912 (iv) "Agent" does not include a person described in Subsection (3).
913 (c) (i) "Broker-dealer" means a person engaged in the business of effecting
914 transactions in securities for the account of others or for the person's own account.
915 (ii) "Broker-dealer" does not include:
916 (A) an agent;
917 (B) an issuer;
918 (C) a depository institution or trust company;
919 (D) a person who has no place of business in this state if:
920 (I) the person effects transactions in this state exclusively with or through:
921 (Aa) the issuers of the securities involved in the transactions;
922 (Bb) other broker-dealers;
923 (Cc) a depository institution, whether acting for itself or as a trustee;
924 (Dd) a trust company, whether acting for itself or as a trustee;
925 (Ee) an insurance company, whether acting for itself or as a trustee;
926 (Ff) an investment company, as defined in the Investment Company Act of 1940,
927 whether acting for itself or as a trustee;
928 (Gg) a pension or profit-sharing trust, whether acting for itself or as a trustee; or
929 (Hh) another financial institution or institutional buyer, whether acting for itself or as
930 a trustee; or
931 (II) during any period of 12 consecutive months the person does not direct more than
932 15 offers to sell or buy into this state in any manner to persons other than those specified in
933 Subsection (1)(c)(ii)(D)(I), whether or not the offeror or an offeree is then present in this state;
934 (E) a general partner who organizes and effects transactions in securities of three or
935 fewer limited partnerships, of which the person is the general partner, in any period of 12
936 consecutive months;
937 (F) a person whose participation in transactions in securities is confined to those
938 transactions made by or through a broker-dealer licensed in this state;
939 (G) a person who is a [
940 state and who effects transactions in a bond or other evidence of indebtedness secured by a
941 real or chattel mortgage or deed of trust, or by an agreement for the sale of real estate or
942 chattels, if the entire mortgage, deed [
943 other evidences of indebtedness secured thereby, is offered and sold as a unit;
944 (H) a person effecting transactions in commodity contracts or commodity options;
945 (I) a person described in Subsection (3); or
946 (J) other persons as the division, by rule or order, may designate, consistent with the
947 public interest and protection of investors, as not within the intent of this Subsection (1)(c).
948 (d) "Buy" or "purchase" means a contract for purchase of, contract to buy, or
949 acquisition of a security or interest in a security for value.
950 (e) "Commission" means the Securities Commission created in Section 61-1-18.5 .
951 (f) "Commodity" means, except as otherwise specified by the division by rule:
952 (i) an agricultural, grain, or livestock product or byproduct, except real property or a
953 timber, agricultural, or livestock product grown or raised on real property and offered or sold
954 by the owner or lessee of the real property;
955 (ii) a metal or mineral, including a precious metal, except a numismatic coin whose
956 fair market value is at least 15% greater than the value of the metal it contains;
957 (iii) a gem or gemstone, whether characterized as precious, semi-precious, or
958 otherwise;
959 (iv) a fuel, whether liquid, gaseous, or otherwise;
960 (v) a foreign currency; and
961 (vi) all other goods, articles, products, or items of any kind, except a work of art
962 offered or sold by art dealers, at public auction or offered or sold through a private sale by the
963 owner of the work.
964 (g) (i) "Commodity contract" means an account, agreement, or contract for the
965 purchase or sale, primarily for speculation or investment purposes and not for use or
966 consumption by the offeree or purchaser, of one or more commodities, whether for immediate
967 or subsequent delivery or whether delivery is intended by the parties, and whether
968 characterized as a cash contract, deferred shipment or deferred delivery contract, forward
969 contract, futures contract, installment or margin contract, leverage contract, or otherwise.
970 (ii) A commodity contract offered or sold shall, in the absence of evidence to the
971 contrary, be presumed to be offered or sold for speculation or investment purposes.
972 (iii) (A) A commodity contract may not include a contract or agreement that requires,
973 and under which the purchaser receives, within 28 calendar days from the payment in good
974 funds any portion of the purchase price, physical delivery of the total amount of each
975 commodity to be purchased under the contract or agreement.
976 (B) A purchaser is not considered to have received physical delivery of the total
977 amount of each commodity to be purchased under the contract or agreement when the
978 commodity or commodities are held as collateral for a loan or are subject to a lien of any
979 person when the loan or lien arises in connection with the purchase of each commodity or
980 commodities.
981 (h) (i) "Commodity option" means an account, agreement, or contract giving a party to
982 the option the right but not the obligation to purchase or sell one or more commodities or one
983 or more commodity contracts, or both whether characterized as an option, privilege,
984 indemnity, bid, offer, put, call, advance guaranty, decline guaranty, or otherwise.
985 (ii) "Commodity option" does not include an option traded on a national securities
986 exchange registered:
987 (A) with the Securities and Exchange Commission; or
988 (B) on a board of trade designated as a contract market by the Commodity Futures
989 Trading Commission.
990 (i) "Depository institution" is as defined in Section 7-1-103 .
991 (j) "Director" means the director of the division appointed in accordance with Section
992 61-1-18 .
993 (k) "Division" means the Division of Securities established by Section 61-1-18 .
994 (l) "Executive director" means the executive director of the Department of Commerce.
995 (m) "Federal covered adviser" means a person who:
996 (i) is registered under Section 203 of the Investment Advisers Act of 1940; or
997 (ii) is excluded from the definition of "investment adviser" under Section 202(a)(11)
998 of the Investment Advisers Act of 1940.
999 (n) "Federal covered security" means a security that is a covered security under
1000 Section 18(b) of the Securities Act of 1933 or rules or regulations promulgated under Section
1001 18(b) of the Securities Act of 1933.
1002 (o) "Fraud," "deceit," and "defraud" are not limited to their common-law meanings.
1003 (p) "Guaranteed" means guaranteed as to payment of principal or interest as to debt
1004 securities, or dividends as to equity securities.
1005 (q) (i) "Investment adviser" means a person who:
1006 (A) for compensation, engages in the business of advising others, either directly or
1007 through publications or writings, as to the value of securities or as to the advisability of
1008 investing in, purchasing, or selling securities; or
1009 (B) for compensation and as a part of a regular business, issues or promulgates
1010 analyses or reports concerning securities.
1011 (ii) "Investment adviser" includes a financial planner or other person who:
1012 (A) as an integral component of other financially related services, provides the
1013 investment advisory services described in Subsection (1)(q)(i) to others for compensation and
1014 as part of a business; or
1015 (B) holds the person out as providing the investment advisory services described in
1016 Subsection (1)(q)(i) to others for compensation.
1017 (iii) "Investment adviser" does not include:
1018 (A) an investment adviser representative;
1019 (B) a depository institution or trust company;
1020 (C) a lawyer, accountant, engineer, or teacher whose performance of these services is
1021 solely incidental to the practice of the profession;
1022 (D) a broker-dealer or its agent whose performance of these services is solely
1023 incidental to the conduct of its business as a broker-dealer and who receives no special
1024 compensation for the services;
1025 (E) a publisher of a bona fide newspaper, news column, news letter, news magazine,
1026 or business or financial publication or service, of general, regular, and paid circulation,
1027 whether communicated in hard copy form, or by electronic means, or otherwise, that does not
1028 consist of the rendering of advice on the basis of the specific investment situation of each
1029 client;
1030 (F) a person who is a federal covered adviser;
1031 (G) a person described in Subsection (3); or
1032 (H) such other persons not within the intent of this Subsection (1)(q) as the division
1033 may by rule or order designate.
1034 (r) (i) "Investment adviser representative" means a partner, officer, director of, or a
1035 person occupying a similar status or performing similar functions, or other individual, except
1036 clerical or ministerial personnel, who:
1037 (A) (I) is employed by or associated with an investment adviser who is licensed or
1038 required to be licensed under this chapter; or
1039 (II) has a place of business located in this state and is employed by or associated with
1040 a federal covered adviser; and
1041 (B) does any of the following:
1042 (I) makes a recommendation or otherwise renders advice regarding securities;
1043 (II) manages accounts or portfolios of clients;
1044 (III) determines which recommendation or advice regarding securities should be given;
1045 (IV) solicits, offers, or negotiates for the sale of or sells investment advisory services;
1046 or
1047 (V) supervises employees who perform any of the acts described in this Subsection
1048 (1)(r)(i)(B).
1049 (ii) "Investment adviser representative" does not include a person described in
1050 Subsection (3).
1051 (s) "Investment contract" includes:
1052 (i) an investment in a common enterprise with the expectation of profit to be derived
1053 through the essential managerial efforts of someone other than the investor; or
1054 (ii) an investment by which:
1055 (A) an offeree furnishes initial value to an offerer;
1056 (B) a portion of the initial value is subjected to the risks of the enterprise;
1057 (C) the furnishing of the initial value is induced by the offerer's promises or
1058 representations that give rise to a reasonable understanding that a valuable benefit of some
1059 kind over and above the initial value will accrue to the offeree as a result of the operation of
1060 the enterprise; and
1061 (D) the offeree does not receive the right to exercise practical or actual control over the
1062 managerial decisions of the enterprise.
1063 (t) "Isolated transaction" means not more than a total of two transactions that occur
1064 anywhere during six consecutive months.
1065 (u) (i) "Issuer" means a person who issues or proposes to issue a security or has
1066 outstanding a security that it has issued.
1067 (ii) With respect to a preorganization certificate or subscription, "issuer" means the
1068 one or more promoters of the person to be organized.
1069 (iii) "Issuer" means the one or more persons performing the acts and assuming duties
1070 of a depositor or manager under the provisions of the trust or other agreement or instrument
1071 under which the security is issued with respect to:
1072 (A) interests in trusts, including collateral trust certificates, voting trust certificates,
1073 and certificates of deposit for securities; or
1074 (B) shares in an investment company without a board of directors.
1075 (iv) With respect to an equipment trust certificate, a conditional sales contract, or
1076 similar securities serving the same purpose, "issuer" means the person by whom the equipment
1077 or property is to be used.
1078 (v) With respect to interests in partnerships, general or limited, "issuer" means the
1079 partnership itself and not the general partner or partners.
1080 (vi) With respect to certificates of interest or participation in oil, gas, or mining titles
1081 or leases or in payment out of production under the titles or leases, "issuer" means the owner
1082 of the title or lease or right of production, whether whole or fractional, who creates fractional
1083 interests therein for the purpose of sale.
1084 (v) (i) "Life settlement interest" means the entire interest or a fractional interest in any
1085 of the following that is the subject of a life settlement:
1086 (A) a policy; or
1087 (B) the death benefit under a policy.
1088 (ii) "Life settlement interest" does not include the initial purchase from the owner by a
1089 life settlement provider.
1090 (w) "Nonissuer" means not directly or indirectly for the benefit of the issuer.
1091 (x) "Person" means:
1092 (i) an individual;
1093 (ii) a corporation;
1094 (iii) a partnership;
1095 (iv) a limited liability company;
1096 (v) an association;
1097 (vi) a joint-stock company;
1098 (vii) a joint venture;
1099 (viii) a trust where the interests of the beneficiaries are evidenced by a security;
1100 (ix) an unincorporated organization;
1101 (x) a government; or
1102 (xi) a political subdivision of a government.
1103 (y) "Precious metal" means the following, whether in coin, bullion, or other form:
1104 (i) silver;
1105 (ii) gold;
1106 (iii) platinum;
1107 (iv) palladium;
1108 (v) copper; and
1109 (vi) such other substances as the division may specify by rule.
1110 (z) "Promoter" means a person who, acting alone or in concert with one or more
1111 persons, takes initiative in founding or organizing the business or enterprise of a person.
1112 (aa) (i) Except as provided in Subsection (1)(aa)(ii), "record" means information that
1113 is:
1114 (A) inscribed in a tangible medium; or
1115 (B) (I) stored in an electronic or other medium; and
1116 (II) retrievable in perceivable form.
1117 (ii) This Subsection (1)(aa) does not apply when the context requires otherwise,
1118 including when "record" is used in the following phrases:
1119 (A) "of record";
1120 (B) "official record"; or
1121 (C) "public record."
1122 (bb) (i) "Sale" or "sell" includes a contract for sale of, contract to sell, or disposition
1123 of, a security or interest in a security for value.
1124 (ii) "Offer" or "offer to sell" includes an attempt or offer to dispose of, or solicitation
1125 of an offer to buy, a security or interest in a security for value.
1126 (iii) The following are examples of the definitions in Subsection (1)(bb)(i) or (ii):
1127 (A) a security given or delivered with or as a bonus on account of a purchase of a
1128 security or any other thing, is part of the subject of the purchase, and is offered and sold for
1129 value;
1130 (B) a purported gift of assessable stock is an offer or sale as is each assessment levied
1131 on the stock;
1132 (C) an offer or sale of a security that is convertible into, or entitles its holder to acquire
1133 or subscribe to another security of the same or another issuer is an offer or sale of that security,
1134 and also an offer of the other security, whether the right to convert or acquire is exercisable
1135 immediately or in the future;
1136 (D) a conversion or exchange of one security for another constitutes an offer or sale of
1137 the security received in a conversion or exchange, and the offer to buy or the purchase of the
1138 security converted or exchanged;
1139 (E) securities distributed as a dividend wherein the person receiving the dividend
1140 surrenders the right, or the alternative right, to receive a cash or property dividend is an offer
1141 or sale;
1142 (F) a dividend of a security of another issuer is an offer or sale; or
1143 (G) the issuance of a security under a merger, consolidation, reorganization,
1144 recapitalization, reclassification, or acquisition of assets constitutes the offer or sale of the
1145 security issued as well as the offer to buy or the purchase of a security surrendered in
1146 connection therewith, unless the sole purpose of the transaction is to change the issuer's
1147 domicile.
1148 (iv) The terms defined in Subsections (1)(bb)(i) and (ii) do not include:
1149 (A) a good faith gift;
1150 (B) a transfer by death;
1151 (C) a transfer by termination of a trust or of a beneficial interest in a trust;
1152 (D) a security dividend not within Subsection (1)(bb)(iii)(E) or (F); or
1153 (E) a securities split or reverse split.
1154 (cc) "Securities Act of 1933," "Securities Exchange Act of 1934," and "Investment
1155 Company Act of 1940" mean the federal statutes of those names as amended before or after
1156 the effective date of this chapter.
1157 (dd) "Securities Exchange Commission" means the United States Securities Exchange
1158 Commission created by the Securities Exchange Act of 1934.
1159 (ee) (i) "Security" means a:
1160 (A) note;
1161 (B) stock;
1162 (C) treasury stock;
1163 (D) bond;
1164 (E) debenture;
1165 (F) evidence of indebtedness;
1166 (G) certificate of interest or participation in a profit-sharing agreement;
1167 (H) collateral-trust certificate;
1168 (I) preorganization certificate or subscription;
1169 (J) transferable share;
1170 (K) investment contract;
1171 (L) burial certificate or burial contract;
1172 (M) voting-trust certificate;
1173 (N) certificate of deposit for a security;
1174 (O) certificate of interest or participation in an oil, gas, or mining title or lease or in
1175 payments out of production under such a title or lease;
1176 (P) commodity contract or commodity option;
1177 (Q) interest in a limited liability company;
1178 (R) life settlement interest; or
1179 (S) in general, an interest or instrument commonly known as a "security," or a
1180 certificate of interest or participation in, temporary or interim certificate for, receipt for,
1181 guarantee of, or warrant or right to subscribe to or purchase an item listed in Subsections
1182 (1)(ee)(i)(A) through (R).
1183 (ii) "Security" does not include:
1184 (A) an insurance or endowment policy or annuity contract under which an insurance
1185 company promises to pay money in a lump sum or periodically for life or some other specified
1186 period;
1187 (B) an interest in a limited liability company in which the limited liability company is
1188 formed as part of an estate plan where all of the members are related by blood or marriage, or
1189 the person claiming this exception can prove that all of the members are actively engaged in
1190 the management of the limited liability company; or
1191 (C) (I) a whole long-term estate in real property;
1192 (II) an undivided fractionalized long-term estate in real property that consists of 10 or
1193 fewer owners; or
1194 (III) an undivided fractionalized long-term estate in real property that consists of more
1195 than 10 owners if, when the real property estate is subject to a management agreement:
1196 (Aa) the management agreement permits a simple majority of owners of the real
1197 property estate to not renew or to terminate the management agreement at the earlier of the end
1198 of the management agreement's current term, or 180 days after the day on which the owners
1199 give notice of termination to the manager;
1200 (Bb) the management agreement prohibits, directly or indirectly, the lending of the
1201 proceeds earned from the real property estate or the use or pledge of its assets to a person or
1202 entity affiliated with or under common control of the manager; and
1203 (Cc) the management agreement complies with any other requirement imposed by rule
1204 by the Real Estate Commission under Section [
1205 (iii) For purposes of Subsection (1)(ee)(ii)(B), evidence that members vote or have the
1206 right to vote, or the right to information concerning the business and affairs of the limited
1207 liability company, or the right to participate in management, may not establish, without more,
1208 that all members are actively engaged in the management of the limited liability company.
1209 (ff) "State" means a state, territory, or possession of the United States, the District of
1210 Columbia, and Puerto Rico.
1211 (gg) (i) "Undivided fractionalized long-term estate" means an ownership interest in
1212 real property by two or more persons that is a:
1213 (A) tenancy in common; or
1214 (B) any other legal form of undivided estate in real property including:
1215 (I) a fee estate;
1216 (II) a life estate; or
1217 (III) other long-term estate.
1218 (ii) "Undivided fractionalized long-term estate" does not include a joint tenancy.
1219 (hh) "Whole long-term estate" means a person owns or persons through joint tenancy
1220 own real property through:
1221 (i) a fee estate;
1222 (ii) a life estate; or
1223 (iii) other long-term estate.
1224 (ii) "Working days" means 8 a.m. to 5 p.m., Monday through Friday, exclusive of
1225 legal holidays listed in Section 63G-1-301 .
1226 (2) A term not defined in this section shall have the meaning as established by
1227 division rule. The meaning of a term neither defined in this section nor by rule of the division
1228 shall be the meaning commonly accepted in the business community.
1229 (3) (a) This Subsection (3) applies to:
1230 (i) the offer or sale of a real property estate exempted from the definition of security
1231 under Subsection (1)(ee)(ii)(C); or
1232 (ii) the offer or sale of an undivided fractionalized long-term estate that is the offer of
1233 a security.
1234 (b) A person who, directly or indirectly receives compensation in connection with the
1235 offer or sale as provided in this Subsection (3) of a real property estate is not an agent,
1236 broker-dealer, investment adviser, or investment adviser representative under this chapter if
1237 that person is licensed under Chapter [
1238 and Practices Act, as:
1239 (i) a principal [
1240 (ii) an associate [
1241 (iii) a [
1242 (4) The list of real property estates excluded from the definition of securities under
1243 Subsection (1)(ee)(ii)(C) is not an exclusive list of real property estates or interests that are not
1244 a security.
1245 Section 18. Section 61-2-101 is enacted to read:
1246
1247
1248 61-2-101. Title.
1249 This chapter is known as the "Division of Real Estate."
1250 Section 19. Section 61-2-102 is enacted to read:
1251 61-2-102. Definitions.
1252 As used in this chapter:
1253 (1) "Department" means the Department of Commerce.
1254 (2) "Director" means the director of the division appointed under Section 61-2-201 .
1255 (3) "Division" means the Division of Real Estate created in Section 61-2-201 .
1256 (4) "Executive director" means the executive director of the department appointed
1257 under Section 13-1-3 .
1258 Section 20. Section 61-2-201 , which is renumbered from Section 61-2-5 is
1259 renumbered and amended to read:
1260
1261 [
1262 Personnel.
1263 (1) There is created within the [
1264 Real Estate. [
1265 (a) this chapter;
1266 (b) Title 57, Chapter 11, Utah Uniform Land Sales Practices Act;
1267 (c) Title 57, Chapter 19, Timeshare and Camp Resort Act;
1268 (d) Title 57, Chapter 23, Real Estate Cooperative Marketing Act;
1269 [
1270 [
1271 [
1272 [
1273 Act[
1274 (h) Chapter 2f, Real Estate Licensing and Practices Act.
1275 (2) The division is under the direction and control of a director appointed by the
1276 executive director of the department with the approval of the governor. The director holds the
1277 office of director at the pleasure of the governor.
1278 (3) The director, with the approval of the executive director, may employ personnel
1279 necessary to discharge the duties of the division at salaries to be fixed by the director
1280 according to standards established by the Department of Administrative Services.
1281 [
1282
1283
1284 [
1285
1286
1287 Section 21. Section 61-2-202 is enacted to read:
1288 61-2-202. Powers and duties of the director or division.
1289 (1) On or before October 1 of each year, in conjunction with the department, the
1290 director shall report to the governor and the Legislature concerning the division's work for the
1291 fiscal year immediately preceding the report.
1292 (2) In conjunction with the executive director, the director shall prepare and submit to
1293 the governor and the Legislature a budget for the fiscal year that follows the convening of the
1294 Legislature.
1295 Section 22. Section 61-2-203 , which is renumbered from Section 61-2-5.1 is
1296 renumbered and amended to read:
1297 [
1298 The [
1299
1300 [
1301 Section 23. Section 61-2-204 , which is renumbered from Section 61-2-28 is
1302 renumbered and amended to read:
1303 [
1304 (1) For purposes of this section, "account" means the Utah Housing Opportunity
1305 Restricted Account created by this section.
1306 [
1307 Housing Opportunity Restricted Account."
1308 [
1309 (a) contributions deposited into the [
1310 account in accordance with Section 41-1a-422 ;
1311 (b) private contributions; and
1312 (c) donations or grants from public or private entities.
1313 [
1314 [
1315 to Title 51, Chapter 7, State Money Management Act.
1316 (b) The Division of Finance shall deposit interest or other earnings derived from
1317 investment of account [
1318 [
1319 [
1320 charitable organizations that:
1321 (a) [
1322 and
1323 (b) have as a primary part of their mission to provide support to organizations that
1324 create affordable housing for those in severe need.
1325 [
1326 if it is:
1327 (a) proposed by an organization [
1328 (b) designed to provide support to organizations that create affordable housing for
1329 those in severe need.
1330 [
1331 division to receive a distribution in accordance with Subsection [
1332 (b) An organization that receives a distribution from the division in accordance with
1333 Subsection [
1334 create affordable housing for those in severe need.
1335 [
1336 Act, the division shall make rules providing procedures for an organization to apply to receive
1337 [
1338 Section 24. Section 61-2b-2 is amended to read:
1339 61-2b-2. Definitions.
1340 (1) As used in this chapter:
1341 (a) (i) "Appraisal" means an unbiased analysis, opinion, or conclusion relating to the
1342 nature, quality, value, or utility of a specified interest in, or aspect of, identified real estate or
1343 identified real property.
1344 (ii) An appraisal is classified by the nature of the assignment as a valuation appraisal,
1345 an analysis assignment, or a review assignment in accordance with the following definitions:
1346 (A) "Analysis assignment" means an unbiased analysis, opinion, or conclusion that
1347 relates to the nature, quality, or utility of identified real estate or identified real property.
1348 (B) "Review assignment" means an unbiased analysis, opinion, or conclusion that
1349 forms an opinion as to the adequacy and appropriateness of a valuation appraisal or an
1350 analysis assignment.
1351 (C) "Valuation appraisal" means an unbiased analysis, opinion, or conclusion that
1352 estimates the value of an identified parcel of real estate or identified real property at a
1353 particular point in time.
1354 (b) "Appraisal Foundation" means the Appraisal Foundation that was incorporated as
1355 an Illinois not-for-profit corporation on November 30, 1987.
1356 (c) (i) "Appraisal report" means a communication, written or oral, of an appraisal.
1357 (ii) An appraisal report is classified by the nature of the assignment as a valuation
1358 report, analysis report, or review report in accordance with the definitions provided in
1359 Subsection (1)(a)(ii).
1360 (iii) The testimony of a person relating to the person's analyses, conclusions, or
1361 opinions concerning identified real estate or identified real property is considered to be an oral
1362 appraisal report.
1363 (d) "Appraisal Qualification Board" means the Appraisal Qualification Board of the
1364 Appraisal Foundation.
1365 [
1366 that is established in Section 61-2b-7 .
1367 [
1368 certified by a state-certified general appraiser or state-certified residential appraiser.
1369 (g) "Concurrence" means that the entities that are given a concurring role jointly agree
1370 to an action.
1371 [
1372 valuation service analysis, opinion, conclusion, or other service that does not fall within the
1373 definition of appraisal.
1374 (B) "Consultation service" does not mean a valuation appraisal, analysis assignment,
1375 or review assignment.
1376 (ii) Regardless of the intention of the client or employer, if a person prepares an
1377 unbiased analysis, opinion, or conclusion, the analysis, opinion, or conclusion is considered to
1378 be an appraisal and not a consultation service.
1379 [
1380 which is dependent on or conditioned by:
1381 (i) the reporting of a predetermined analysis, opinion, or conclusion by the person
1382 performing the analysis, opinion, or conclusion; or
1383 (ii) achieving a result specified by the person requesting the analysis, opinion, or
1384 conclusion.
1385 [
1386 Commerce.
1387 [
1388 required by federal law or by federal regulation to be supported by an appraisal prepared by:
1389 (i) a state-licensed appraiser; or
1390 (ii) a state-certified appraiser.
1391 [
1392 improvements if any.
1393 [
1394 appraisal of real estate or real property and preparing an appraisal report.
1395 [
1396 (i) the sale, lease, purchase, investment in, or exchange of real property or an interest
1397 in real property, or the financing of such a transaction;
1398 (ii) the refinancing of real property or an interest in real property; or
1399 (iii) the use of real property or an interest in real property as security for a loan or
1400 investment, including mortgage-backed securities.
1401 [
1402 inherent in the ownership of real estate.
1403 [
1404 certification as a state-certified general appraiser issued under this chapter.
1405 [
1406 valid certification as a state-certified residential real estate appraiser issued under this chapter.
1407 [
1408 as a state-licensed appraiser issued under this chapter.
1409 [
1410 (i) does not hold an appraiser license or appraiser certification issued under this
1411 chapter;
1412 (ii) works under the direct supervision of a state-certified appraiser to earn experience
1413 for licensure; and
1414 (iii) is registered as a trainee under this chapter.
1415 [
1416 conclusion relating to the nature, quality, value, or utility of identified real estate or identified
1417 real property that is prepared by a person who is employed or retained to act, or would be
1418 perceived by third parties or the public as acting, as a disinterested third party in rendering the
1419 analysis, opinion, or conclusion.
1420 (2) (a) If a term not defined in this section is defined by rule, the term shall have the
1421 meaning established by the division by rule made in accordance with Title 63G, Chapter 3,
1422 Utah Administrative Rulemaking Act.
1423 (b) If a term not defined in this section is not defined by rule, the term shall have the
1424 meaning commonly accepted in the business community.
1425 Section 25. Section 61-2b-3 is amended to read:
1426 61-2b-3. License or certification required.
1427 (1) Except as provided in Subsection (2) and in Subsection 61-2b-6 (2), it is unlawful
1428 for [
1429 a certified appraisal report, or perform a consultation service relating to real estate or real
1430 property in this state without first being licensed or certified in accordance with this chapter.
1431 (2) This section does not apply to:
1432 (a) a [
1433 Section [
1434
1435 (i) regarding the value of real estate;
1436 (ii) to a potential seller or third party recommending a listing price of real estate; or
1437 (iii) to a potential buyer or third party recommending a purchase price of real estate;
1438 (b) an employee of a company who states an opinion of value or prepares a report
1439 containing value conclusions relating to real estate or real property solely for the company's
1440 use;
1441 (c) [
1442 the scope of the official's or employee's duties, unless otherwise required by Utah law;
1443 (d) an auditor or accountant who states an opinion of value or prepares a report
1444 containing value conclusions relating to real estate or real property while performing an audit;
1445 (e) an individual, except an individual who is required to be licensed or certified under
1446 this chapter, who states an opinion about the value of property in which the person has an
1447 ownership interest;
1448 (f) an individual who states an opinion of value if no consideration is paid or agreed to
1449 be paid for the opinion and no other party is reasonably expected to rely on the individual's
1450 appraisal expertise;
1451 (g) an individual, such as a researcher or a secretary, who does not render significant
1452 professional assistance, as defined by the board, in arriving at a real estate appraisal analysis,
1453 opinion, or conclusion; or
1454 (h) an attorney authorized to practice law in this state who, in the course of the
1455 attorney's practice, uses an appraisal report governed by this chapter or who states an opinion
1456 of the value of real estate.
1457 (3) An opinion of value or report containing value conclusions exempt under
1458 Subsection (2) may not be referred to as an appraisal.
1459 Section 26. Section 61-2b-6 is amended to read:
1460 61-2b-6. Duties and powers of division.
1461 (1) The division has the powers and duties listed in this Subsection (1).
1462 (a) The division shall:
1463 (i) receive an application for licensing, certification, or registration;
1464 (ii) establish appropriate administrative procedures for the processing of an
1465 application for licensure, certification, or registration;
1466 (iii) issue a license or certification to a qualified applicant pursuant to this chapter;
1467 and
1468 (iv) register an individual who applies and qualifies for registration as a trainee under
1469 this chapter.
1470 (b) (i) The division shall require an individual to register with the division as a trainee
1471 [
1472 licensure.
1473 (ii) Subject to Subsection (4), the board shall adopt rules in accordance with Title
1474 63G, Chapter 3, Utah Administrative Rulemaking Act, for:
1475 (A) the trainee registration required by this Subsection (1)(b); and
1476 (B) renewal of the trainee registration required by this Subsection (1)(b).
1477 (c) The division shall hold public hearings under the direction of the board.
1478 (d) The division may:
1479 (i) solicit bids and enter into contracts with one or more educational testing services or
1480 organizations for the preparation of a bank of questions and answers [
1481
1482 (ii) administer or contract for the administration of licensing and certification
1483 examinations as may be required to carry out the division's responsibilities under this chapter.
1484 (e) The division shall provide administrative assistance to the board by providing to
1485 the board the facilities, equipment, supplies, and personnel that are required to enable the
1486 board to carry out the board's responsibilities under this chapter.
1487 [
1488
1489 [
1490 education available to a person licensed [
1491 [
1492 explanation of the Uniform Standards of Professional Appraisal Practice as required by
1493 Section 61-2b-27 when an interpretation or explanation becomes necessary in the enforcement
1494 of this chapter.
1495 [
1496 (i) for processing:
1497 [
1498 [
1499 [
1500 (ii) for [
1501 (i) If a person pays a fee or costs to the division with a negotiable instrument and the
1502 negotiable instrument is not honored for payment:
1503 (i) the transaction for which the payment is submitted is voidable by the division;
1504 (ii) the division may reverse the transaction if payment of the applicable fee or costs is
1505 not received in full; and
1506 (iii) the person's license, certification, or registration is automatically suspended:
1507 (A) beginning the day on which the payment is due; and
1508 (B) ending the day on which payment is made in full.
1509 (j) The division may:
1510 (i) investigate a complaint against:
1511 [
1512 [
1513 [
1514 (ii) subpoena a witness;
1515 (iii) subpoena the production of a book, paper, document, record, [
1516 contract, or evidence;
1517 (iv) administer an oath; and
1518 (v) take testimony and receive evidence concerning a matter within the division's
1519 jurisdiction.
1520 (k) The division may:
1521 (i) promote research and conduct studies relating to the profession of real estate
1522 appraising; and
1523 (ii) sponsor real estate appraisal educational activities.
1524 (l) The division shall adopt, with the concurrence of the board, rules for the
1525 administration of this chapter pursuant to Title 63G, Chapter 3, Utah Administrative
1526 Rulemaking Act, that are not inconsistent with this chapter or the constitution and laws of this
1527 state or of the United States.
1528 (m) The division shall employ an appropriate staff to investigate allegations that a
1529 person required to be licensed, certified, or registered under this chapter fails to comply with
1530 this chapter.
1531 (n) The division may employ other professional, clerical, and technical staff as may be
1532 necessary to properly administer the work of the division under this chapter.
1533 (o) [
1534
1535 the names and addresses of [
1536 under this chapter [
1537
1538 (ii) A person who requests a list under this Subsection (1)(o) shall pay the costs
1539 incurred by the division to make the list available.
1540 (2) (a) The division shall approve an expert witness who is not otherwise licensed or
1541 certified under this chapter to appear in an administrative or judicial tax proceeding to provide
1542 evidence related to the valuation of real property that is assessed by the State Tax
1543 Commission, [
1544 (i) approval is limited to a specific proceeding;
1545 (ii) approval is valid until the proceeding becomes final;
1546 (iii) applicant pays to the division an approval fee [
1547 accordance with Section 63J-1-504 ;
1548 (iv) applicant provides the applicant's name, address, occupation, and professional
1549 credentials; and
1550 (v) applicant provides a notarized statement that:
1551 (A) the applicant is competent to render an appraisal and to testify as an expert witness
1552 in the proceeding; and
1553 (B) the appraisal and testimony to be offered shall be in accordance with the Uniform
1554 Standards of Professional Appraisal Practice adopted by the board.
1555 (b) Subsection (2)(a) [
1556 tax proceeding related to the valuation of real property that is assessed by the State Tax
1557 Commission.
1558 (3) (a) If the conditions of Subsection (3)(b) are met, the division is immune from any
1559 civil action or criminal prosecution for initiating or assisting in a lawful investigation of an act
1560 of, or participating in a disciplinary proceeding concerning:
1561 (i) a person required to be licensed, certified, or registered pursuant to this chapter; or
1562 (ii) a person approved as an expert witness pursuant to this chapter.
1563 (b) This Subsection (3) applies if the division takes the action:
1564 (i) without malicious intent; and
1565 (ii) in the reasonable belief that the action is taken pursuant to the powers and duties
1566 vested in the division under this chapter.
1567 (4) (a) An individual applying to register as a trainee under this chapter shall:
1568 (i) submit a fingerprint card in a form acceptable to the division at the time of
1569 applying for registration; and
1570 (ii) consent to a criminal background check by:
1571 (A) the Utah Bureau of Criminal Identification; and
1572 (B) the Federal Bureau of Investigation.
1573 (b) The division shall request the Department of Public Safety to complete a Federal
1574 Bureau of Investigation criminal background check for an applicant through a national
1575 criminal history system.
1576 (c) The applicant shall pay the cost of:
1577 (i) the fingerprinting required by this section; and
1578 (ii) the criminal background check required by this section.
1579 (d) (i) A registration as a trainee under this chapter is conditional pending completion
1580 of the criminal background check required by this Subsection (4).
1581 (ii) [
1582
1583 criminal background check discloses that the applicant fails to accurately disclose a criminal
1584 history involving:
1585 (A) the appraisal industry;
1586 (B) fraud;
1587 (C) misrepresentation; or
1588 (D) deceit.
1589 (iii) If a criminal background check discloses that an applicant fails to accurately
1590 disclose a criminal history other than one described in Subsection (4)(d)(ii), the division:
1591 (A) shall review the application; and
1592 (B) in accordance with rules made by the division pursuant to Title 63G, Chapter 3,
1593 Utah Administrative Rulemaking Act, may:
1594 (I) place one or more conditions on a registration;
1595 (II) place one or more restrictions on a registration;
1596 (III) revoke a registration; or
1597 (IV) refer the application to the board for a decision.
1598 [
1599 Subsection (4)(d)(ii) or whose registration is conditioned, restricted, or revoked under
1600 Subsection (4)(d)(iii) may appeal the [
1601 (A) after the [
1602 (B) in accordance with Title 63G, Chapter 4, Administrative Procedures Act.
1603 [
1604 authority to conduct a hearing described in Subsection (4)(d)[
1605 [
1606 granted only if:
1607 (A) the criminal history upon which the division [
1608 (I) did not occur; or
1609 (II) is the criminal history of another person;
1610 (B) (I) the revocation is based on a failure to accurately disclose a criminal history;
1611 and
1612 (II) the applicant has a reasonable good faith belief at the time of application that there
1613 was no criminal history to be disclosed; or
1614 (C) the division fails to follow the prescribed procedure for the revocation.
1615 (e) If a registration is revoked or a revocation is upheld after a hearing described in
1616 Subsection (4)(d)[
1617 period of 12 months after the day on which the registration is revoked.
1618 (f) The board may delegate to the division the authority to make a decision on whether
1619 relief from a revocation should be granted.
1620 (g) [
1621 check [
1622 Section 27. Section 61-2b-8 is amended to read:
1623 61-2b-8. Duties of board.
1624 (1) (a) The board shall provide technical assistance to the division relating to real
1625 estate appraisal standards and real estate appraiser qualifications.
1626 (b) The board has the powers and duties listed in this section.
1627 (2) The board shall:
1628 (a) determine the experience[
1629 appropriate for a person licensed under this chapter;
1630 (b) determine the experience[
1631 appropriate for a person certified under this chapter:
1632 (i) in compliance with the minimum requirements of Financial Institutions Reform,
1633 Recovery, and Enforcement Act of 1989; and
1634 (ii) consistent with the intent of this chapter;
1635 (c) determine the appraisal related acts that may be performed by:
1636 (i) a trainee on the basis of the trainee's education and experience;
1637 (ii) clerical staff; and
1638 (iii) a person who:
1639 (A) does not hold a license or certification; and
1640 (B) assists an appraiser licensed or certified under this chapter in providing appraisal
1641 services or consultation services;
1642 (d) determine the procedures for a trainee to register and to renew a registration with
1643 the division; and
1644 (e) develop one or more programs to upgrade and improve the experience, education,
1645 and examinations as required under this chapter.
1646 (3) (a) The experience[
1647 by the board for a person licensed or certified under this chapter shall be the minimum criteria
1648 established by the [
1649 unless, after notice and a public hearing held in accordance with Title 63G, Chapter 3, Utah
1650 Administrative Rulemaking Act, the board finds that the minimum criteria are not appropriate
1651 for a state-licensed appraiser or a state-certified appraiser in this state.
1652 (b) If under Subsection (3)(a) the board makes a finding that the minimum criteria are
1653 not appropriate, the board shall recommend appropriate criteria to the Legislature.
1654 (4) The board shall:
1655 (a) determine the continuing education requirements appropriate for the renewal of a
1656 license, certification, or registration issued under this chapter, except that the continuing
1657 education requirements established by the board shall at least meet the minimum criteria
1658 established by the Appraisal Qualification Board;
1659 (b) develop one or more programs to upgrade and improve continuing education; and
1660 (c) recommend to the division one or more available continuing education courses that
1661 meet the requirements of this chapter.
1662 (5) (a) The board shall consider the proper interpretation or explanation of the
1663 Uniform Standards of Professional Appraisal Practice as required by Section 61-2b-27 when:
1664 (i) an interpretation or explanation is necessary in the enforcement of this chapter; and
1665 (ii) the Appraisal Standards Board of the Appraisal Foundation has not issued an
1666 interpretation or explanation.
1667 (b) If the conditions of Subsection (5)(a) are met, the board shall recommend to the
1668 division the appropriate interpretation or explanation that the division should adopt as a rule
1669 under this chapter.
1670 (c) The board may by rule made in accordance with Title 63G, Chapter 3, Utah
1671 Administrative Rulemaking Act, and Section 61-2b-27 provide for an exemption from a
1672 provision of the Uniform Standards of Professional Appraisal Practice for an activity engaged
1673 in on behalf of a governmental entity.
1674 [
1675
1676 [
1677 [
1678
1679 [
1680
1681 [
1682
1683 [
1684 board to an administrative law judge, in connection with a disciplinary proceeding under
1685 Sections 61-2b-30 and 61-2b-31 concerning:
1686 (i) a person required to be licensed, certified, or registered under this chapter; and
1687 (ii) the person's failure to comply with this chapter and the Uniform Standards of
1688 Professional Appraisal Practice as adopted under Section 61-2b-27 .
1689 (b) The board shall issue in an administrative hearing a decision that contains findings
1690 of fact and conclusions of law.
1691 (c) When a determination is made that a person required to be licensed, certified, or
1692 registered under this chapter has violated this chapter, the division shall implement
1693 disciplinary action determined by the board.
1694 [
1695 for a disciplinary proceeding concerning a person required to be registered, licensed, certified,
1696 or approved as an expert under this chapter if the action is taken without malicious intent and
1697 in the reasonable belief that the action taken was taken pursuant to the powers and duties
1698 vested in a member of the board under this chapter.
1699 [
1700 honesty, competency, integrity, and truthfulness of an applicant for:
1701 (a) original licensure, certification, or registration; and
1702 (b) renewal licensure [
1703 Section 28. Section 61-2b-10 is amended to read:
1704 61-2b-10. State-licensed appraiser -- Authority and qualifications.
1705 (1) A state-licensed appraiser is authorized to appraise complex and noncomplex 1-4
1706 family residential units in this state having a transaction value permitted under the Financial
1707 Institutions Reform, Recovery, and Enforcement Act of 1989, and related federal regulations.
1708 (2) A state-licensed appraiser is authorized to appraise vacant or unimproved land
1709 having a transaction value permitted under the Financial Institutions Reform, Recovery, and
1710 Enforcement Act of 1989, and related federal regulations that is utilized for 1-4 family
1711 purposes or for which the highest and best use is 1-4 family purposes and subdivisions for
1712 which a development analysis/appraisal is not necessary.
1713 (3) A state-licensed appraiser may not issue a certified appraisal report.
1714 (4) To qualify as a state-licensed appraiser, an applicant must:
1715 (a) be of good moral character;
1716 (b) demonstrate honesty, competency, integrity, and truthfulness;
1717 [
1718 [
1719 [
1720 [
1721 (i) real estate appraisal;
1722 (ii) the Uniform Standards of Professional Appraisal Practice; and
1723 (iii) ethical rules to be observed by a real estate appraiser as required by Section
1724 61-2b-27 ; and
1725 [
1726 appraisal as established by rule.
1727 (5) The courses of study under Subsection (4)[
1728 (a) a college or university;
1729 (b) a community or junior college;
1730 (c) a real estate appraisal or real estate related organization;
1731 (d) a state or federal agency or commission;
1732 (e) a proprietary school;
1733 (f) a provider approved by a state certification and licensing agency; or
1734 (g) the Appraisal Foundation or its boards.
1735 [
1736
1737 Section 29. Section 61-2b-14 is amended to read:
1738 61-2b-14. State-certified residential appraiser -- Application.
1739 (1) [
1740 division evidence of:
1741 (a) the applicant's good moral character, honesty, competency, integrity, and
1742 truthfulness;
1743 [
1744 determined by the [
1745 [
1746 (A) college;
1747 (B) junior college;
1748 (C) community college; or
1749 (D) university; or
1750 (ii) [
1751 subject matter courses from an accredited:
1752 (A) college;
1753 (B) junior college;
1754 (C) community college; or
1755 (D) university;
1756 [
1757 curriculum:
1758 (i) of specific appraisal education determined by rule made by the board; and
1759 (ii) that includes a course in the Uniform Standards of Professional Practice or its
1760 equivalent that [
1761 [
1762
1763 [
1764 established by rule; and
1765 [
1766 (1)(e) within a reasonable period, as determined by rule, immediately preceding the filing of
1767 the application for certification.
1768 (2) Upon request by the division, [
1769 division for examination:
1770 (a) a detailed listing of the real estate appraisal reports or file memoranda for each year
1771 for which experience is claimed; and
1772 (b) a sample selected by the division of appraisal reports that the applicant has
1773 prepared in the course of the applicant's appraisal practice.
1774 (3) The classroom hours required by Subsection (1)[
1775 (a) a college or university;
1776 (b) a community or junior college;
1777 (c) a real estate appraisal or real estate related organization;
1778 (d) a state or federal agency or commission;
1779 (e) a proprietary school;
1780 (f) a provider approved by a state certification and licensing agency; or
1781 (g) the Appraisal Foundation or its boards.
1782 Section 30. Section 61-2b-15 is amended to read:
1783 61-2b-15. State-certified general appraiser -- Application -- Qualifications.
1784 (1) [
1785 division evidence of:
1786 (a) the applicant's good moral character, honesty, competency, integrity, and
1787 truthfulness;
1788 [
1789 determined by the [
1790 [
1791 university; or
1792 (ii) [
1793 subject matter courses from an accredited:
1794 (A) college;
1795 (B) junior college;
1796 (C) community college; or
1797 (D) university;
1798 [
1799 curriculum:
1800 (i) of specific appraisal education determined by rule; and
1801 (ii) that includes a course in the Uniform Standards of Professional Practice or its
1802 equivalent that has been approved by the Appraisal [
1803
1804
1805 [
1806 established by rule; and
1807 [
1808 (1)(e) within a reasonable period, as determined by rule, immediately preceding the filing of
1809 the application for certification.
1810 (2) Upon request by the division, [
1811 division for examination:
1812 (a) a detailed listing of the real estate appraisal reports or file memoranda for each year
1813 for which experience is claimed; and
1814 (b) a sample selected by the division of appraisal reports that the applicant has
1815 prepared in the course of the applicant's appraisal practice.
1816 (3) The classroom hours required by Subsection (1)[
1817 (a) a college or university;
1818 (b) a community or junior college;
1819 (c) a real estate appraisal or real estate related organization;
1820 (d) a state or federal agency or commission;
1821 (e) a proprietary school;
1822 (f) a provider approved by a state certification and licensing agency; or
1823 (g) the Appraisal Foundation or its boards.
1824 Section 31. Section 61-2b-17 is amended to read:
1825 61-2b-17. State-certified and state-licensed appraisers -- Restrictions on use of
1826 terms -- Conduct prohibited or required -- Trainee.
1827 (1) (a) The terms "state-certified general appraiser," "state-certified residential
1828 appraiser," and "state-licensed appraiser":
1829 (i) may only be used to refer to an individual who is certified or licensed under this
1830 chapter; and
1831 (ii) may not be used following, or immediately in connection with, the name or
1832 signature of a firm, partnership, corporation, or group, or in any manner that it might be
1833 interpreted as referring to a firm, partnership, corporation, group, or to anyone other than the
1834 individual who is certified or licensed under this chapter.
1835 (b) The requirement of this Subsection (1) may not be construed to prevent a
1836 state-certified general appraiser from signing an appraisal report on behalf of a corporation,
1837 partnership, firm, or group practice if it is clear that:
1838 (i) only the individual is certified; and
1839 (ii) the corporation, partnership, firm, or group practice is not certified.
1840 (c) Except as provided in Section 61-2b-25 , a certificate or license may not be issued
1841 under this chapter to a corporation, partnership, firm, or group.
1842 (2) (a) A person other than a state-certified general appraiser or state-certified
1843 residential appraiser, may not assume or use any title, designation, or abbreviation likely to
1844 create the impression of certification in this state as a real estate appraiser.
1845 (b) A person other than a state-licensed appraiser may not assume or use any title,
1846 designation, or abbreviation likely to create the impression of licensure in this state as a real
1847 estate appraiser.
1848 (3) (a) Only an individual who has qualified under the certification requirements of
1849 this chapter is authorized to prepare and sign a certified appraisal report relating to real estate
1850 or real property in this state.
1851 (b) If a certified appraisal report is prepared and signed by a state-certified residential
1852 appraiser, the certified appraisal report shall state, immediately following the signature on the
1853 report, "State-Certified Residential Appraiser."
1854 (c) If a certified appraisal report is prepared and signed by a state-certified general
1855 appraiser, the certified appraisal report shall state, immediately following the signature on the
1856 report, "State-Certified General Appraiser."
1857 (d) An appraisal report prepared by a state-licensed appraiser shall state, immediately
1858 following the signature on the report, "State-Licensed Appraiser."
1859 (e) When signing a certified appraisal report, a state-certified appraiser shall also place
1860 on the report, immediately below the state-certified appraiser's signature the state-certified
1861 appraiser's certificate number and its expiration date.
1862 (f) A state-certified residential appraiser may not prepare a certified appraisal report
1863 outside the state-certified residential appraiser's authority as defined in Section 61-2b-13 .
1864 (g) A state-licensed appraiser who assisted in the preparation of a certified appraisal
1865 report is authorized to cosign the certified appraisal report.
1866 (4) A person who has not qualified under this chapter may not describe or refer to any
1867 appraisal or appraisal report relating to real estate or real property in this state by the terms
1868 "certified appraisal" or "certified appraisal report."
1869 (5) If a trainee assists [
1870 preparation of an appraisal report, the appraisal report shall disclose:
1871 (a) the trainee's name; and
1872 (b) the extent to which the trainee assists in the preparation of the appraisal report.
1873 Section 32. Section 61-2b-18 is amended to read:
1874 61-2b-18. Application for licensure, certification, or registration -- Approval as
1875 an expert witness.
1876 (1) An application for the following shall be sent to the division on a form approved
1877 by the division:
1878 (a) original certification, licensure, or registration;
1879 (b) approval as an expert witness; and
1880 (c) renewal of certification [
1881 (2) The payment of the appropriate fee, as [
1882 concurrence of the board, in accordance with Section 63J-1-504 , must accompany an
1883 application for:
1884 (a) approval as an expert witness;
1885 (b) original certification, licensure, or registration; and
1886 (c) renewal of certification [
1887 (3) At the time of filing an application described in Subsection (1), an applicant shall:
1888 (a) sign a pledge to comply with the Uniform Standards of Professional Appraisal
1889 Practice and the ethical rules to be observed by an appraiser that are established under Section
1890 61-2b-27 for:
1891 (i) a certified or licensed appraiser;
1892 (ii) a trainee; or
1893 (iii) an expert witness approved under this chapter; and
1894 (b) certify that the applicant understands the types of misconduct, as set forth in this
1895 chapter, for which a disciplinary proceeding may be initiated against a person certified,
1896 licensed, or registered under this chapter.
1897 Section 33. Section 61-2b-19 is amended to read:
1898 61-2b-19. Expiration of license, certification, or registration.
1899 (1) [
1900 expires on the expiration date indicated on the license [
1901 (2) A renewal license [
1902 expires two years from the date of issuance.
1903 (3) (a) The scheduled expiration date of [
1904 registration shall appear on the license [
1905
1906 (b) (i) The division shall mail a holder of a license, certification, or registration notice
1907 of its expiration to the last address stated on the division's records as the holder's current
1908 address.
1909 (ii) To be mailed a notice under this Subsection (3)(b), a holder of a license,
1910 certification, or registration shall provide to the division in writing the holder's current address.
1911 (iii) A holder's license, certification, or registration expires if not renewed by the
1912 holder notwithstanding whether the holder receives a notice of its expiration by the division
1913 under this Subsection (3)(b).
1914 Section 34. Section 61-2b-20 is amended to read:
1915 61-2b-20. Renewal of license, certification, or registration.
1916 [
1917
1918
1919
1920 [
1921 (1) To renew a license, certification, or registration, before the license, certification, or
1922 registration expires, the holder of the license, certification, or registration shall submit to the
1923 division in compliance with procedures set by the division and the board:
1924 (a) an application for renewal;
1925 (b) a fee established by the division and the board, in accordance with Section
1926 63J-1-504 ; and
1927 (c) evidence in the form prescribed by the division of having completed the continuing
1928 education requirements for renewal specified in this chapter.
1929 [
1930 or before its expiration date.
1931 (b) For a period of 30 days after the expiration date, a license [
1932 registration may be reinstated upon:
1933 (i) payment of a renewal fee and a late fee determined by the division and the board;
1934 and
1935 (ii) satisfying the continuing education requirements specified in Section 61-2b-40 .
1936 (c) After the 30-day period described in Subsection [
1937 after the expiration date, [
1938 (i) paying a renewal fee and a reinstatement fee determined by the division and the
1939 board; and
1940 (ii) satisfying the continuing education requirements specified in Section 61-2b-40 .
1941 (d) After the six-month period described in Subsection [
1942 after the expiration date, [
1943 (i) paying a renewal fee and a reinstatement fee determined by the division and the
1944 board in accordance with Section 63J-1-504 ;
1945 (ii) providing proof acceptable to the division and the board of the person having
1946 satisfied the continuing education requirements of Section 61-2b-40 ; and
1947 (iii) providing proof acceptable to the division and the board of the person completing
1948 24 hours of continuing education:
1949 (A) in addition to the requirements in Section 61-2b-40 ; and
1950 (B) on a subject determined by the division by rule made in accordance with Title
1951 63G, Chapter 3, Utah Administrative Rulemaking Act.
1952 (e) The division shall relicense [
1953 renew that person's license [
1954 expiration date as prescribed for an original application.
1955 (f) Notwithstanding Subsection [
1956 license, certification, or registration that would expire under Subsection [
1957 the extension if:
1958 (i) the person complies with the requirements of this section to renew the license,
1959 certification, or registration; and
1960 (ii) at the time of the extension, there is pending under this chapter:
1961 (A) the application for renewal of the license, certification, or registration; or
1962 (B) a disciplinary action.
1963 [
1964 notify the division of the following by sending the division a signed statement within 10
1965 business days of:
1966 (a) (i) a conviction of a criminal offense;
1967 (ii) the entry of a plea in abeyance to a criminal offense; or
1968 (iii) the potential resolution of a criminal case by:
1969 (A) a diversion agreement; or
1970 (B) any other agreement under which a criminal charge is suspended for a period of
1971 time;
1972 (b) filing a personal bankruptcy or business bankruptcy;
1973 (c) the suspension, revocation, surrender, cancellation, or denial of a professional
1974 license, certification, or registration of the person, whether the license, certification, or
1975 registration is issued by this state or another jurisdiction; or
1976 (d) the entry of a cease and desist order or a temporary or permanent injunction:
1977 (i) against the person by a court or [
1978 (ii) on the basis of:
1979 (A) conduct or a practice involving an act regulated by this chapter; or
1980 (B) conduct involving fraud, misrepresentation, or deceit.
1981 Section 35. Section 61-2b-25 is amended to read:
1982 61-2b-25. Other law unaffected.
1983 [
1984 person approved, licensed, [
1985 practice of real estate appraising as a professional corporation or a limited liability company in
1986 accordance with:
1987 (1) Title 16, Chapter 11, Professional Corporation Act; or
1988 (2) Title 48, Chapter 2c, Utah Revised Limited Liability Company Act.
1989 Section 36. Section 61-2b-28 is amended to read:
1990 61-2b-28. Enforcement -- Investigation -- Orders -- Hearings.
1991 (1) (a) The division may investigate the actions of:
1992 (i) a person registered, licensed, or certified under this chapter;
1993 (ii) an applicant for registration, licensure, or certification;
1994 (iii) an applicant for renewal of registration, licensure, or certification; or
1995 (iv) a person required to be registered, licensed, or certified under this chapter.
1996 (b) The division may initiate an agency action against a person described in
1997 Subsection (1)(a) in accordance with Title 63G, Chapter 4, Administrative Procedures Act, to:
1998 (i) impose disciplinary action;
1999 (ii) deny issuance to an applicant of:
2000 (A) an original registration, license, or certification; or
2001 (B) a renewal of a registration, license, or certification; or
2002 (iii) issue a cease and desist order as provided in Subsection (3).
2003 (2) (a) The division may:
2004 (i) administer an oath or affirmation;
2005 (ii) subpoena a witness or evidence;
2006 (iii) take evidence; and
2007 (iv) require the production of a book, paper, contract, record, [
2008 information, or evidence relevant to the investigation described in Subsection (1).
2009 (b) The division may serve a subpoena by certified mail.
2010 (c) A failure to respond to a request by the division in an investigation authorized
2011 under this chapter is considered to be a separate violation of this chapter, including:
2012 (i) failing to respond to a subpoena as a witness;
2013 (ii) withholding evidence; or
2014 (iii) failing to produce a book, paper, contract, document, information, or record.
2015 (d) (i) If a person is found to have violated this chapter or a rule made under this
2016 chapter, the person shall pay the costs incurred by the division to copy a book, paper, contract,
2017 document, information, or record required under this chapter, including the costs incurred to
2018 copy an electronic book, paper, contract, document, information, or record in a universally
2019 readable format.
2020 (ii) If a person fails to pay the costs described in Subsection (2)(d)(i) when due, the
2021 person's license, certification, or registration is automatically suspended:
2022 (A) beginning the day on which the payment of costs is due; and
2023 (B) ending the day on which the costs are paid.
2024 (3) (a) The director shall issue and serve upon a person an order directing that person
2025 to cease and desist from an act if:
2026 (i) the director has reason to believe that the person has been engaging, is about to
2027 engage, or is engaging in the act constituting a violation of this chapter; and
2028 (ii) it appears to the director that it would be in the public interest to stop the act.
2029 (b) Within 10 days after receiving the order, the person upon whom the order is served
2030 may request a hearing.
2031 (c) Pending a hearing requested under Subsection (3)(b), a cease and desist order shall
2032 remain in effect.
2033 (d) If a request for hearing is made, the division shall follow the procedures and
2034 requirements of Title 63G, Chapter 4, Administrative Procedures Act.
2035 (4) (a) After a hearing requested under Subsection (3), if the board agrees that an act
2036 of the person violates this chapter, the board:
2037 (i) shall issue an order making the cease and desist order permanent; and
2038 (ii) may impose another disciplinary action under Section 61-2b-29 .
2039 (b) The director shall commence an action in the name of the Department of
2040 Commerce and Division of Real Estate, in the district court in the county in which an act
2041 described in Subsection (3) occurs or where the person resides or carries on business, to enjoin
2042 and restrain the person from violating this chapter if:
2043 (i) (A) a hearing is not requested under Subsection (3); and
2044 (B) the person fails to cease the act described in Subsection (3); or
2045 (ii) after discontinuing the act described in Subsection (3), the person again
2046 commences the act.
2047 (5) A remedy or action provided in this section does not limit, interfere with, or prevent
2048 the prosecution of another remedy or action, including a criminal proceeding.
2049 Section 37. Section 61-2b-29 is amended to read:
2050 61-2b-29. Disciplinary action -- Grounds.
2051 (1) (a) The board may order disciplinary action against a person:
2052 (i) registered, licensed, or certified under this chapter; or
2053 (ii) required to be registered, licensed, or certified under this chapter.
2054 (b) On the basis of a ground listed in Subsection (2) for disciplinary action, board
2055 action may include:
2056 (i) revoking, suspending, or placing a person's registration, license, or certification on
2057 probation;
2058 (ii) denying a person's original registration, license, or certification;
2059 (iii) denying a person's renewal license [
2060 (iv) in the case of denial or revocation of a registration, license, or certification, setting
2061 a waiting period for an applicant to apply for a registration, license, or certification under this
2062 chapter;
2063 (v) ordering remedial education;
2064 (vi) imposing a civil penalty upon a person not to exceed the greater of:
2065 (A) [
2066 (B) the amount of any gain or economic benefit from a violation;
2067 (vii) issuing a cease and desist order;
2068 (viii) modifying an action described in Subsections (1)(b)(i) through (vii) if the board
2069 finds that the person complies with court ordered restitution; or
2070 (ix) doing any combination of Subsections (1)(b)(i) through (viii).
2071 (c) (i) If the board or division issues an order that orders a fine or educational
2072 requirements as part of the disciplinary action against a person, including a stipulation and
2073 order, the board or division shall state in the order the deadline by which the person shall
2074 comply with the fine or educational requirements.
2075 (ii) If a person fails to comply with a stated deadline:
2076 (A) the person's license, certificate, or registration is automatically suspended:
2077 (I) beginning on the day specified in the order as the deadline for compliance; and
2078 (II) ending the day on which the person complies in full with the order; and
2079 (B) if the person fails to pay a fine required by an order, the division may begin a
2080 collection process:
2081 (I) established by the division by rule made in accordance with Title 63G, Chapter 3,
2082 Utah Administrative Rulemaking Act; and
2083 (II) subject to Title 63A, Chapter 8, Office of State Debt Collection.
2084 (2) The following are grounds for disciplinary action under this section:
2085 (a) procuring or attempting to procure a registration, license, or certification under this
2086 chapter:
2087 (i) by fraud; or
2088 (ii) by making a false statement, submitting false information, or making a material
2089 misrepresentation in an application filed with the division;
2090 (b) paying money or attempting to pay money other than a fee provided for by this
2091 chapter to a member or employee of the division to procure a registration, license, or
2092 certification under this chapter;
2093 (c) an act or omission in the practice of real estate appraising that constitutes
2094 dishonesty, fraud, or misrepresentation;
2095 (d) entry of a judgment against a registrant, licensee, or certificate holder on grounds
2096 of fraud, misrepresentation, or deceit in the making of an appraisal of real estate;
2097 (e) a guilty plea to a criminal offense involving moral turpitude that is held in
2098 abeyance, or a conviction, including a conviction based upon a plea of guilty or nolo
2099 contendere, of a criminal offense involving moral turpitude;
2100 (f) engaging in the business of real estate appraising under an assumed or fictitious
2101 name not properly registered in this state;
2102 (g) paying a finder's fee or a referral fee to a person not licensed or certified under this
2103 chapter in connection with an appraisal of real estate or real property in this state;
2104 (h) making a false or misleading statement in:
2105 (i) that portion of a written appraisal report that deals with professional qualifications;
2106 or
2107 (ii) testimony concerning professional qualifications;
2108 (i) violating or disregarding:
2109 (i) [
2110 (ii) an order of the board; or
2111 (iii) a rule issued under this chapter;
2112 (j) violating the confidential nature of governmental records to which a person
2113 registered, licensed, certified, or approved as an expert under this chapter gained access
2114 through employment or engagement as an appraiser by a governmental agency;
2115 (k) accepting a contingent fee for performing an appraisal [
2116
2117 (i) the appraiser reporting a predetermined analysis, opinion, or conclusion;
2118 (ii) the analysis, opinion, conclusion, or valuation reached; or
2119 (iii) the consequences resulting from the appraisal assignment;
2120 (l) unprofessional conduct as defined by statute or rule;
2121 (m) in the case of a dual licensed title licensee as defined in Section 31A-2-402 :
2122 (i) providing a title insurance product or service without the approval required by
2123 Section 31A-2-405 ; or
2124 (ii) knowingly providing false or misleading information in the statement required by
2125 Subsection 31A-2-405 (2); or
2126 (n) other conduct that constitutes dishonest dealing.
2127 Section 38. Section 61-2b-30.5 is amended to read:
2128 61-2b-30.5. Reinstatement of license, certification, registration, approval --
2129 Expert witness -- Trainee.
2130 (1) An individual [
2131 approval is revoked under this chapter:
2132 (a) may not apply for renewal of that license, certification, registration, or approval;
2133 and
2134 (b) may apply for licensure, certification, registration, or approval as prescribed for an
2135 original license [
2136 Subsection (2).
2137 (2) An applicant for licensure, certification, registration, or approval as an expert
2138 witness under Subsection (1):
2139 (a) may not apply for licensure, certification, registration, or approval until at least five
2140 years after the date of revocation of the applicant's original license, certification, registration,
2141 or approval; and
2142 (b) is not entitled to credit for experience gained prior to the date of revocation in
2143 determining whether the applicant meets the experience requirement for licensure,
2144 certification, registration, or approval.
2145 (3) A person whose license or certification is revoked may not act as a trainee until at
2146 least four years after the day on which the person's license or certification is revoked.
2147 Section 39. Section 61-2b-32 is amended to read:
2148 61-2b-32. Registration, licensure, or certification prerequisite to suit for
2149 compensation.
2150 [
2151 the capacity of a real estate appraiser in this state may not bring or maintain [
2152 [
2153 real estate appraisal services for which registration, licensure, or certification is required by
2154 this chapter without alleging and proving that [
2155 registration, license, or certification in this state at all times during the performance of [
2156 the real estate appraisal services.
2157 Section 40. Section 61-2b-33 is amended to read:
2158 61-2b-33. Penalty for violating this chapter -- Automatic revocation.
2159 (1) In addition to being subject to a disciplinary action by the board, a person required
2160 to be licensed, certified, or registered under this chapter who violates this chapter:
2161 (a) is guilty of a class A misdemeanor, upon a conviction of a first violation of this
2162 chapter; and
2163 (b) is guilty of a third degree felony, upon conviction of a second or subsequent
2164 violation of this chapter.
2165 (2) A license [
2166 convicted of a violation of Section 76-6-1203 is automatically revoked.
2167 Section 41. Section 61-2b-36 is amended to read:
2168 61-2b-36. Contingent fees.
2169 (1) A person licensed or certified under this chapter who enters into an agreement to
2170 perform an appraisal [
2171 (2) A person licensed or certified under this chapter who enters into an agreement to
2172 provide consultation services [
2173 fixed fee or a contingent fee.
2174 (3) (a) If a person licensed or certified under this chapter enters into an agreement to
2175 perform consultation services for a contingent fee, this fact shall be clearly stated in each oral
2176 statement.
2177 (b) In addition to the requirements of Subsection (3)(a), if a person licensed or
2178 certified under this chapter prepares a written consultation report or summary, letter of
2179 transmittal, or certification statement for a contingent fee, the person shall clearly state in the
2180 report, summary, letter of transmittal, or certification statement that the report is prepared
2181 under a contingent fee arrangement.
2182 Section 42. Section 61-2b-39 is amended to read:
2183 61-2b-39. Registration, licensure, or certification history.
2184 The division may, upon payment of a fee [
2185 by the division in accordance with Section 63J-1-504 , issue to [
2186 [
2187 (1) [
2188 (2) [
2189 Section 43. Section 61-2b-40 is amended to read:
2190 61-2b-40. Continuing education requirements.
2191 (1) As a prerequisite to renewal of a license [
2192 applicant for renewal shall present evidence satisfactory to the division of having met the
2193 continuing education requirements of this section.
2194 (2) [
2195
2196
2197 preceding the filing of an application for renewal[
2198 instruction in courses or seminars that have received the approval of the [
2199 (3) The division may adopt rules for the implementation of this section to assure that
2200 each person renewing that person's license [
2201 has a working knowledge of current real estate appraisal theories, practices, and techniques
2202 that will enable the person to provide competent real estate appraisal services to the members
2203 of the public with whom that person deals in a professional relationship under the authority of
2204 that person's license [
2205 (4) An amendment or repeal of a rule adopted by the division under this section [
2206 does not operate to deprive a person of credit toward renewal of that person's license [
2207 certification, or registration for [
2208 the applicant [
2209 (5) In lieu of meeting the requirements set forth in Subsection (2) and applicable rules,
2210 an applicant for renewal may satisfy all or part of the continuing education requirements that
2211 are imposed by the board in excess of the minimum requirements of the Appraisal
2212 Qualification Board by presenting evidence of the following:
2213 (a) completion of an educational program of study determined by the board to be
2214 equivalent, for continuing education purposes, to courses or seminars approved by the board;
2215 or
2216 (b) participation other than as a student in educational processes and programs
2217 approved by the board that relate to real property appraisal theory, practices, or techniques
2218 including teaching, program development, and preparation of textbooks, monographs, articles,
2219 and other instructional materials.
2220 (6) The board shall develop and propose to the division rules [
2221
2222
2223
2224
2225
2226 developed and proposed by the board under this Subsection (6) shall prescribe:
2227 (a) policies and procedures to be followed in obtaining [
2228 courses of instruction and seminars;
2229 (b) standards, policies, and procedures to be used by the division in evaluating an
2230 applicant's claims of equivalency; and
2231 (c) standards, monitoring methods, and systems for recording attendance to be
2232 employed by course and seminar sponsors as a prerequisite to division approval of courses and
2233 seminars for credit.
2234 (7) (a) A person whose license [
2235 or suspended as the result of a disciplinary action taken by the board may not apply for
2236 reinstatement unless the person presents evidence of completion of the continuing education
2237 requirement that is [
2238 (b) The continuing education required under Subsection (7)(a) [
2239 imposed upon an applicant for reinstatement who has been required by the division to
2240 successfully complete the examination for licensure or certification required by Section
2241 61-2b-20 as a condition to reinstatement.
2242 Section 44. Section 61-2c-102 is amended to read:
2243 61-2c-102. Definitions.
2244 (1) As used in this chapter:
2245 [
2246
2247
2248 (a) "Affiliation" means that a mortgage loan originator is associated with a principal
2249 lending manager in accordance with Section 61-2c-209 .
2250 (b) "Applicant" means a person applying for a license under this chapter.
2251 (c) "Approved examination provider" means a person approved by the nationwide
2252 database as an approved test provider.
2253 (d) "Associate lending manager" means an individual who:
2254 (i) qualifies under this chapter as a principal lending manager; and
2255 (ii) works by or on behalf of another principal lending manager in transacting the
2256 business of residential mortgage loans.
2257 (e) "Branch office" means a licensed entity's office:
2258 (i) for the transaction of the business of residential mortgage loans regulated under this
2259 chapter;
2260 (ii) other than the main office of the licensed entity; and
2261 (iii) that operates under the same business name as the licensed entity.
2262 (f) (i) "Business of residential mortgage loans" means for compensation or in the
2263 expectation of compensation to:
2264 (A) engage in an act that makes an individual a mortgage loan originator;
2265 (B) make or originate a residential mortgage loan;
2266 (C) directly or indirectly solicit a residential mortgage loan for another; or
2267 (D) unless excluded under Subsection (1)(f)(ii), render services related to the
2268 origination of a residential mortgage loan including:
2269 (I) preparing a loan package;
2270 (II) communicating with the borrower and lender; or
2271 (III) advising on a loan term.
2272 (ii) "Business of residential mortgage loans" does not include:
2273 (A) if working as an employee under the direction of and subject to the supervision
2274 and instruction of a person licensed under this chapter, the performance of a clerical or support
2275 duty such as:
2276 (I) the receipt, collection, or distribution of information common for the processing or
2277 underwriting of a loan in the mortgage industry other than taking an application;
2278 (II) communicating with a consumer to obtain information necessary for the
2279 processing or underwriting of a residential mortgage loan;
2280 (III) word processing;
2281 (IV) sending correspondence; or
2282 (V) assembling files;
2283 (B) ownership of an entity that engages in the business of residential mortgage loans if
2284 the owner does not personally perform the acts listed in Subsection (1)(f)(i); or
2285 (C) except if an individual will engage in an activity as a mortgage loan originator,
2286 acting in one or more of the following capacities:
2287 (I) a loan wholesaler;
2288 (II) an account executive for a loan wholesaler;
2289 (III) a loan underwriter;
2290 (IV) a loan closer; or
2291 (V) funding a loan.
2292 (g) "Certified education provider" means a person who is certified under Section
2293 61-2c-204.1 to provide one or more of the following:
2294 (i) Utah-specific prelicensing education; or
2295 (ii) Utah-specific continuing education.
2296 (h) "Closed-end" means a loan:
2297 (i) with a fixed amount borrowed; and
2298 (ii) that does not permit additional borrowing secured by the same collateral.
2299 (i) "Commission" means the Residential Mortgage Regulatory Commission created in
2300 Section 61-2c-104 .
2301 (j) "Compensation" means anything of economic value that is paid, loaned, granted,
2302 given, donated, or transferred to an individual or entity for or in consideration of:
2303 (i) services;
2304 (ii) personal or real property; or
2305 (iii) another thing of value.
2306 (k) "Concurrence" means that entities given a concurring rule must jointly agree for
2307 the action to be taken.
2308 [
2309 under this chapter in order to meet the education requirements imposed by Sections
2310 61-2c-204.1 and 61-2c-205 to renew a license under this chapter.
2311 [
2312 directly or indirectly:
2313 (i) direct or exercise a controlling interest over:
2314 (A) the management or policies of an entity; or
2315 (B) the election of a majority of the directors, officers, managers, or managing partners
2316 of an entity;
2317 (ii) vote 20% or more of a class of voting securities of an entity by an individual; or
2318 (iii) vote more than 5% of a class of voting securities of an entity by another entity.
2319 (n) (i) "Control person" means an individual identified by an entity registered with the
2320 nationwide database as being the individual primarily responsible for directing the
2321 management or policies of the entity.
2322 (ii) "Control person" may include one of the following who is identified as provided in
2323 Subsection (1)(n)(i):
2324 (A) a manager;
2325 (B) a managing partner;
2326 (C) a director;
2327 (D) an executive officer; or
2328 (E) an individual who performs a function similar to an individual listed in this
2329 Subsection (1)(n)(ii).
2330 [
2331 [
2332 [
2333 [
2334 contains one to four units including any of the following if used as a residence:
2335 (i) a condominium unit;
2336 (ii) a cooperative unit;
2337 (iii) a manufactured home; or
2338 (iv) a house.
2339 [
2340 (i) a corporation;
2341 (ii) a limited liability company;
2342 (iii) a partnership;
2343 (iv) a company;
2344 (v) an association;
2345 (vi) a joint venture;
2346 (vii) a business trust;
2347 (viii) a trust; or
2348 (ix) another organization.
2349 [
2350 Commerce.
2351 (u) "Federal licensing requirements" means Secure and Fair Enforcement for Mortgage
2352 Licensing, 12 U.S.C. Sec. 5101 et seq.
2353 [
2354 placed when the holder of the license is not currently engaging in the business of residential
2355 mortgage loans.
2356 [
2357 [
2358 61-2c-204.1 or 61-2c-206 for an individual to obtain a license under this chapter.
2359 [
2360 originator" means an individual who for compensation or in expectation of compensation:
2361 (A) (I) takes a residential mortgage loan application; or
2362 [
2363 (B) is licensed as a mortgage loan originator in accordance with this chapter.
2364 (ii) "[
2365 (A) is described in Subsection (1)[
2366 administrative or clerical tasks as described in Subsection (1)(f)(ii)(A);
2367 [
2368
2369 [
2370 [
2371 (B) (I) is licensed under Chapter 2f, Real Estate Licensing and Practices Act;
2372 (II) performs only real estate brokerage activities; and
2373 (III) receives no compensation from:
2374 (Aa) a lender;
2375 (Bb) a principal lending manager; or
2376 (Cc) an agent of a lender or principal lending manager; or
2377 (C) is solely involved in extension of credit relating to a timeshare plan, as defined in
2378 11 U.S.C. Sec. 101(53D).
2379 [
2380
2381 [
2382 and Registry, authorized under [
2383
2384 [
2385 30-year fixed rate mortgage.
2386 [
2387 [
2388 be licensed under this chapter in order to meet the education requirements imposed by Section
2389 61-2c-204.1 or 61-2c-206 for an individual to obtain a license under this chapter.
2390 [
2391 lending manager under Section 61-2c-206 to transact the business of residential mortgage
2392 loans.
2393 (ii) An individual [
2394 business of residential mortgage loans as a mortgage [
2395 [
2396 (i) prepared, owned, received, or retained by a person; and
2397 (ii) (A) inscribed on a tangible medium; or
2398 (B) (I) stored in an electronic or other medium; and
2399 (II) [
2400 [
2401 (i) the loan or extension of credit is secured by a:
2402 (A) mortgage;
2403 (B) deed of trust; or
2404 (C) consensual security interest;
2405 (ii) the mortgage, deed of trust, or consensual security interest described in Subsection
2406 (1)[
2407 (A) is on a dwelling located in the state; and
2408 (B) is created with the consent of the owner of the residential real property; and
2409 (iii) solely for the purposes of defining "mortgage loan originator," the extension of
2410 credit is primarily for personal, family, or household use.
2411 (gg) "Sponsorship" means an association in accordance with Section 61-2c-209
2412 between an individual licensed under this chapter and an entity licensed under this chapter.
2413 [
2414 (i) a state, territory, or possession of the United States;
2415 (ii) the District of Columbia; or
2416 (iii) the Commonwealth of Puerto Rico.
2417 [
2418 (jj) "Utah-specific" means an educational or examination requirement under this
2419 chapter that relates specifically to Utah.
2420 (2) (a) If a term not defined in this section is defined by rule, the term shall have the
2421 meaning established by the division by rule made in accordance with Title 63G, Chapter 3,
2422 Utah Administrative Rulemaking Act.
2423 (b) If a term not defined in this section is not defined by rule, the term shall have the
2424 meaning commonly accepted in the business community.
2425 Section 45. Section 61-2c-103 is amended to read:
2426 61-2c-103. Powers and duties of the division.
2427 (1) The division shall administer this chapter.
2428 (2) In addition to a power or duty expressly provided in this chapter, the division may:
2429 (a) receive and act on a complaint including:
2430 (i) taking action designed to obtain voluntary compliance with this chapter; or
2431 (ii) commencing an administrative or judicial proceeding on the division's own
2432 initiative;
2433 (b) establish one or more programs for the education of consumers with respect to
2434 residential mortgage loans;
2435 (c) (i) make one or more studies appropriate to effectuate the purposes and policies of
2436 this chapter; and
2437 (ii) make the results of the studies described in Subsection (2)(c)(i) available to the
2438 public;
2439 (d) visit and investigate a person licensed under this chapter, regardless of whether the
2440 person is located in Utah; and
2441 (e) employ one or more necessary hearing examiners, investigators, clerks, and other
2442 employees and agents.
2443 (3) The division shall make rules for the administration of this chapter in accordance
2444 with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, including:
2445 (a) licensure procedures for:
2446 (i) a person required by this chapter to obtain a license with the division; and
2447 (ii) the establishment of a branch office by an entity;
2448 (b) proper handling of [
2449 (c) record-keeping requirements by a licensee, including proper disposal of a record;
2450 (d) certification procedures for certifying an education provider; and
2451 (e) standards of conduct for a licensee or certified education provider.
2452 (4) The division may by rule made in accordance with Title 63G, Chapter 3, Utah
2453 Administrative Rulemaking Act, require as a condition of maintaining a license or
2454 certification under this chapter that a person comply with a requirement of the nationwide
2455 database if:
2456 (a) required for uniformity amongst states; and
2457 (b) not inconsistent with this chapter.
2458 (5) The division shall by rule made in accordance with Title 63G, Chapter 3, Utah
2459 Administrative Rulemaking Act, provide a process under which an individual may challenge
2460 information contained in the nationwide database.
2461 [
2462
2463 [
2464 [
2465 [
2466 (a) review the requirements related to the nationwide database imposed by federal
2467 [
2468 (i) the division;
2469 (ii) a licensee under this chapter;
2470 (iii) a certified education provider; or
2471 (iv) an approved examination provider; and
2472 (b) after the review required by Subsection [
2473 (i) report to the Business and Labor Interim Committee the impact of the requirements
2474 on the implementation by the division of this chapter; and
2475 (ii) recommend legislation, if any, to the Business and Labor Interim Committee
2476 related to how the division should coordinate with the nationwide database.
2477 [
2478 database or another entity designated by the nationwide database to do the following related to
2479 a licensee or other person subject to this chapter:
2480 (a) collect or maintain a record; and
2481 (b) process a transaction fee or other fee.
2482 [
2483 (a) a violation of this chapter;
2484 (b) disciplinary action under this chapter; and
2485 (c) other information relevant to this chapter.
2486 (9) If a person pays a fee or costs to the division with a negotiable instrument and the
2487 negotiable instrument is not honored for payment:
2488 (a) the transaction for which the payment is submitted is voidable by the division;
2489 (b) the division may reverse the transaction if payment of the applicable fee or costs is
2490 not received in full; and
2491 (c) the person's license, certification, or registration is automatically suspended:
2492 (i) beginning the day on which the payment is due; and
2493 (ii) ending the day on which payment is made in full.
2494 Section 46. Section 61-2c-104 is amended to read:
2495 61-2c-104. Residential Mortgage Regulatory Commission.
2496 (1) (a) There is created within the division the "Residential Mortgage Regulatory
2497 Commission" consisting of the following members appointed by the executive director with
2498 the approval of the governor:
2499 (i) four members who:
2500 (A) have at least three years of experience in transacting the business of residential
2501 mortgage loans; and
2502 (B) are licensed under this chapter at the time of and during appointment; and
2503 (ii) one member from the general public.
2504 (b) (i) The executive director with the approval of the governor may appoint an
2505 alternate member to the board.
2506 (ii) The alternate member shall:
2507 (A) at the time of the appointment, have at least three years of experience in
2508 transacting the business of residential mortgage loans; and
2509 (B) be licensed under this chapter at the time of and during appointment.
2510 (2) (a) Except as required by Subsection (2)(b), the executive director shall appoint a
2511 new member or reappointed member subject to appointment by the executive director to a
2512 four-year term ending June 30.
2513 (b) Notwithstanding the requirements of Subsection (2)(a), the executive director
2514 shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the
2515 terms of commission members are staggered so that approximately half of the commission is
2516 appointed every two years.
2517 (c) If a vacancy occurs in the membership of the commission for any reason, the
2518 executive director shall appoint a replacement for the unexpired term.
2519 (d) A member shall remain on the commission until the member's successor is
2520 appointed and qualified.
2521 (3) Members of the commission shall annually select one member to serve as chair.
2522 (4) (a) The commission shall meet at least quarterly.
2523 (b) The director may call a meeting in addition to the meetings required by Subsection
2524 (4)(a):
2525 (i) at the discretion of the director;
2526 (ii) at the request of the chair of the commission; or
2527 (iii) at the written request of three or more commission members.
2528 (5) (a) Three members of the commission constitute a quorum for the transaction of
2529 business.
2530 (b) If a quorum of members is unavailable for any meeting and an alternate member is
2531 appointed to the commission by the executive director with the approval of the governor, the
2532 alternate member shall serve as a regular member of the commission for that meeting if with
2533 the presence of the alternate member there is a quorum present at the meeting.
2534 (c) The action of a majority of a quorum present is an action of the commission.
2535 (6) (a) (i) A member who is not a government employee may not receive compensation
2536 or benefits for the member's services, but may receive per diem and expenses incurred in the
2537 performance of the member's official duties at the rates established by the Division of Finance
2538 under Sections 63A-3-106 and 63A-3-107 .
2539 (ii) A member who is not a government employee may decline to receive per diem and
2540 expenses for the member's service.
2541 (b) (i) A state government officer and employee member who does not receive salary,
2542 per diem, or expenses from the member's agency for the member's service may receive per
2543 diem and expenses incurred in the performance of the member's official duties from the
2544 commission at the rates established by the Division of Finance under Sections 63A-3-106 and
2545 63A-3-107 .
2546 (ii) A state government officer and employee member may decline to receive per diem
2547 and expenses for the member's service.
2548 (7) In addition to a duty or power expressly provided for elsewhere in this chapter, the
2549 commission shall:
2550 (a) except as provided in Subsection 61-2c-202 [
2551 denial of licensure of a person under this chapter in accordance with Part 2, Licensure;
2552 (b) take disciplinary action with the concurrence of the director in accordance with
2553 Part 4, Enforcement; and
2554 (c) advise the division concerning matters related to the administration and
2555 enforcement of this chapter.
2556 Section 47. Section 61-2c-105 is amended to read:
2557 61-2c-105. Scope of chapter -- Exemptions.
2558 (1) (a) Except as to an individual who will engage in an activity as a mortgage loan
2559 originator, this chapter applies to a closed-end residential mortgage loan secured by a first lien
2560 or equivalent security interest on a dwelling.
2561 (b) This chapter does not apply to a transaction covered by Title 70C, Utah Consumer
2562 Credit Code.
2563 (2) The following are exempt from this chapter:
2564 (a) the federal government;
2565 (b) a state;
2566 (c) a political subdivision of a state;
2567 (d) an agency of or entity created by a governmental entity described in Subsections
2568 (2)(a) through (c) including:
2569 (i) the Utah Housing Corporation created in Title 9, Chapter 4, Part 9, Utah Housing
2570 Corporation Act;
2571 (ii) the Federal National Mortgage Corporation;
2572 (iii) the Federal Home Loan Mortgage Corporation;
2573 (iv) the Federal Deposit Insurance Corporation;
2574 (v) the Resolution Trust Corporation;
2575 (vi) the Government National Mortgage Association;
2576 (vii) the Federal Housing Administration;
2577 (viii) the National Credit Union Administration;
2578 (ix) the Farmers Home Administration; and
2579 (x) the United States Department of Veterans Affairs;
2580 (e) a depository institution;
2581 (f) an [
2582 with a depository institution;
2583 (g) an employee or agent of an entity described in Subsections (2)(a) through (f):
2584 (i) when that person acts on behalf of the entity described in Subsections (2)(a)
2585 through (f); and
2586 (ii) including an employee of:
2587 (A) a depository institution;
2588 (B) a subsidiary of a depository institution that is:
2589 (I) owned and controlled by the depository institution; and
2590 (II) regulated by a federal banking agency, as defined in 12 U.S.C. Sec. 5102; or
2591 (C) an institution regulated by the Farm Credit Administration;
2592 (h) except as provided in Subsection (3), a person who:
2593 (i) makes a loan:
2594 (A) secured by an interest in real property;
2595 (B) with the person's own money; and
2596 (C) for the person's own investment; and
2597 (ii) that does not engage in the business of making loans secured by an interest in real
2598 property;
2599 (i) except as provided in Subsection (3), a person who receives a mortgage, deed of
2600 trust, or consensual security interest on real property if the individual or entity:
2601 (i) is the seller of real property; and
2602 (ii) receives the mortgage, deed of trust, or consensual security interest on real
2603 property as security for a separate money obligation;
2604 (j) a person who receives a mortgage, deed of trust, or consensual security interest on
2605 real property if:
2606 (i) the person receives the mortgage, deed of trust, or consensual security interest as
2607 security for an obligation payable on an installment or deferred payment basis;
2608 (ii) the obligation described in Subsection (2)(j)(i) arises from a person providing
2609 materials or services used in the improvement of the real property that is the subject of the
2610 mortgage, deed of trust, or consensual security interest; and
2611 (iii) the mortgage, deed of trust, or consensual security interest is created without the
2612 consent of the owner of the real property that is the subject of the mortgage, deed of trust, or
2613 consensual security interest;
2614 (k) a nonprofit corporation that:
2615 (i) is exempt from paying federal income taxes;
2616 (ii) is certified by the United States Small Business Administration as a small business
2617 investment company;
2618 (iii) is organized to promote economic development in this state; and
2619 (iv) has as its primary activity providing financing for business expansion;
2620 (l) except as provided in Subsection (3), a court appointed fiduciary; or
2621 (m) an attorney admitted to practice law in this state:
2622 (i) if the attorney is not principally engaged in the business of negotiating residential
2623 mortgage loans; and
2624 (ii) when the attorney renders services in the course of the attorney's practice as an
2625 attorney.
2626 (3) An individual who will engage in an activity as a mortgage loan originator is
2627 exempt from this chapter only if the individual is an employee or agent exempt under
2628 Subsection (2)(g).
2629 (4) (a) Notwithstanding Subsection (2)(m), an attorney exempt from this chapter may
2630 not engage in conduct described in Section 61-2c-301 when transacting business of residential
2631 mortgage loans.
2632 (b) If an attorney exempt from this chapter violates Subsection (4)(a), the attorney:
2633 (i) is not subject to enforcement by the division under Part 4, Enforcement; and
2634 (ii) is subject to disciplinary action generally applicable to an attorney admitted to
2635 practice law in this state.
2636 (c) If the division receives a complaint alleging an attorney exempt from this chapter is
2637 in violation of Subsection (4)(a), the division shall forward the complaint to the Utah State Bar
2638 for disciplinary action.
2639 (5) (a) An individual who is exempt under Subsection (2) or (3) may voluntarily
2640 obtain a license under this chapter by complying with Part 2, Licensure.
2641 (b) An individual who voluntarily obtains a license pursuant to this Subsection (5)
2642 shall comply with all the provisions of this chapter.
2643 Section 48. Section 61-2c-106 is amended to read:
2644 61-2c-106. Addresses provided the division.
2645 (1) (a) [
2646 provide a physical location or street address when the person provides the nationwide database
2647 an address required by the division.
2648 (b) The following when provided under this chapter is public information:
2649 (i) a business address; or
2650 (ii) a mailing address.
2651 (2) A licensee is considered to have received a notification that is mailed to the last
2652 mailing address furnished to the [
2653 (a) if the licensee is an individual, the individual; or
2654 (b) if the licensee is an entity, the principal lending manager of the entity.
2655 Section 49. Section 61-2c-201 is amended to read:
2656 61-2c-201. Licensure required of person engaged in the business of residential
2657 mortgage loans.
2658 (1) Unless exempt from this chapter under Section 61-2c-105 , a person may not
2659 transact the business of residential mortgage loans without obtaining a license under this
2660 chapter.
2661 (2) For purposes of this chapter, a person transacts business in this state if:
2662 (a) (i) the person engages in an act that constitutes the business of residential mortgage
2663 loans; and
2664 (ii) (A) the act described in Subsection (2)(a)(i) is directed to or received in this state;
2665 and
2666 (B) the real property that is the subject of the act described in Subsection (2)(a)(i) is
2667 located in this state; or
2668 (b) a representation is made by the person that the person transacts the business of
2669 residential mortgage loans in this state.
2670 (3) An individual who has an ownership interest in an entity required to be licensed
2671 under this chapter is not required to obtain an individual license under this chapter unless the
2672 individual transacts the business of residential mortgage loans.
2673 (4) Unless otherwise exempted under this chapter, licensure under this chapter is
2674 required of both:
2675 (a) the individual who directly transacts the business of residential mortgage loans;
2676 and
2677 (b) if the individual transacts business as an employee or agent of an entity or
2678 individual, the entity or individual for whom the employee or agent transacts the business of
2679 residential mortgage loans.
2680 [
2681
2682 [
2683 [
2684
2685 [
2686
2687 [
2688 [
2689 [
2690
2691 [
2692 [
2693 [
2694
2695
2696 [
2697 [
2698 [
2699
2700 [
2701 business of residential mortgage loans transacts the business of residential mortgage loans
2702 under an assumed business name, the entity shall in accordance with rules made by the
2703 division:
2704 (i) register the assumed name [
2705 (ii) furnish [
2706 Division of Corporations and Commercial Code pursuant to Title 42, Chapter 2, Conducting
2707 Business Under Assumed Name.
2708 (b) The division may charge a fee established in accordance with Section 63J-1-504
2709 for registering an assumed name pursuant to this Subsection [
2710 [
2711
2712 Section 50. Section 61-2c-202 is amended to read:
2713 61-2c-202. Licensure procedures.
2714 (1) To apply for licensure under this chapter an applicant shall in a manner provided
2715 by the division by rule:
2716 (a) if the applicant is an entity, submit [
2717 (i) lists any name under which the [
2718 (ii) lists the address of the principal business location of the [
2719 [
2720 [
2721 [
2722 [
2723
2724 [
2725 [
2726
2727 [
2728
2729 (v) identifies the one or more control persons for the entity;
2730 (vi) identifies the jurisdictions in which the entity is registered, licensed, or otherwise
2731 regulated in the business of residential mortgage loans;
2732 (vii) discloses any adverse administrative action taken by an administrative agency
2733 against:
2734 (A) the entity; or
2735 (B) any control person for the entity;
2736 (viii) discloses any history of criminal proceedings involving any control person for
2737 the entity; and
2738 [
2739 (b) if the applicant is an individual[
2740 [
2741 [
2742 [
2743 (i) submit a licensure statement that identifies the entity with which the applicant is
2744 sponsored;
2745 (ii) authorize a criminal background check through the nationwide database accessing:
2746 (A) the Utah Bureau of Criminal Identification, if the nationwide database is able to
2747 obtain information from the Utah Bureau of Criminal Identification; and
2748 [
2749 [
2750 successfully completed approved prelicensing education in accordance with Section
2751 61-2c-204.1 ;
2752 [
2753 successfully passed [
2754 61-2c-204.1 ; and
2755 [
2756 [
2757 [
2758
2759 [
2760 [
2761 [
2762 [
2763 [
2764
2765 [
2766
2767 [
2768
2769 (v) submit evidence using a method approved by the division by rule of having
2770 successfully registered in the nationwide database, including paying a fee required by the
2771 nationwide database; and
2772 (c) pay to the division:
2773 (i) an application fee established by the division in accordance with Section
2774 63J-1-504 ; and
2775 (ii) the reasonable expenses incurred by the division in processing the application for
2776 licensure[
2777 [
2778
2779 [
2780 [
2781 (2) (a) Upon receiving an application, the division, with the concurrence of the
2782 commission, shall determine whether the applicant:
2783 (i) meets the qualifications for licensure; and
2784 (ii) complies with this section.
2785 (b) If the division, with the concurrence of the commission, determines that an
2786 applicant meets the qualifications for licensure and complies with this section, the division
2787 shall issue the applicant a license.
2788 (c) If the division, with the concurrence of the commission, determines that the
2789 division requires more information to make a determination under Subsection (2)(a), the
2790 division may:
2791 (i) hold the application pending further information about an applicant's criminal
2792 background or history related to adverse administrative action in any jurisdiction; or
2793 (ii) issue a conditional license:
2794 (A) pending the completion of a criminal background check; and
2795 (B) subject to suspension or revocation if the criminal background check reveals that
2796 the applicant did not truthfully or accurately disclose on the licensing application a criminal
2797 history or other history related to adverse administrative action.
2798 [
2799 (i) review a class or category of application for an initial or renewed license;
2800 (ii) determine whether an applicant meets the [
2801
2802 (iii) conduct a necessary hearing on an application; and
2803 (iv) approve or deny a license application without concurrence by the commission.
2804 [
2805 an application without concurrence by the commission and the division denies an application
2806 for licensure, the applicant who is denied licensure may petition the commission for review of
2807 the denial.
2808 [
2809 agency review by the executive director only after the commission reviews the division's
2810 denial of the applicant's application.
2811 [
2812 Chapter 4, Administrative Procedures Act, an applicant who is denied licensure under this
2813 chapter may submit a request for agency review to the executive director within 30 days
2814 following the day on which the commission order denying the licensure is issued.
2815 [
2816 [
2817
2818 [
2819
2820
2821 [
2822 [
2823 [
2824 [
2825
2826 Section 51. Section 61-2c-203 is amended to read:
2827 61-2c-203. General qualifications for licensure.
2828 (1) To qualify for licensure under this chapter, [
2829 demonstrate through procedures established by rule made by the division in accordance with
2830 Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
2831 [
2832 [
2833 [
2834 [
2835 including general fitness such as to command the confidence of the community and to warrant
2836 a determination that the [
2837 the purposes of this chapter[
2838 [
2839 (2) If an applicant is an individual, the applicant may not have:
2840 (a) been convicted of, pled guilty to, pled no contest to, pled guilty in a similar manner
2841 to, or resolved by diversion or its equivalent:
2842 (i) a felony involving an act of fraud, dishonesty, a breach of trust, or money
2843 laundering; or
2844 (ii) a felony in the seven years preceding the day on which an application is submitted
2845 to the division;
2846 [
2847
2848 [
2849 [
2850
2851 [
2852 the division, been convicted of, pled guilty to, pled no contest to, pled guilty in a similar
2853 manner to, or resolved by diversion its equivalent:
2854 [
2855 [
2856 misdemeanor involving moral turpitude;
2857 (c) [
2858 license as a mortgage loan originator revoked by a governmental jurisdiction at any time;
2859 (d) [
2860 suspended, [
2861 individual applies for licensure if:
2862 (i) the registration or license is issued by this state or another jurisdiction; and
2863 (ii) the suspension, [
2864 based on misconduct in a professional capacity that relates to moral character, honesty,
2865 integrity, truthfulness, or the competency to transact the business of residential mortgage
2866 loans;
2867 (e) [
2868 the Securities and Exchange Commission, the New York Stock Exchange, or the National
2869 Association of Securities Dealers within the five years preceding the date the individual
2870 applies for registration; [
2871 (f) [
2872 individual:
2873 (i) by a court or [
2874 (ii) on the basis of:
2875 (A) conduct or a practice involving the business of residential mortgage loans; or
2876 (B) conduct involving fraud, misrepresentation, or deceit.
2877 [
2878 [
2879 (3) If an applicant is an entity, the applicant may not have a control person who fails
2880 to meet the requirements of Subsection [
2881
2882 [
2883 [
2884 [
2885 [
2886
2887 [
2888
2889 [
2890
2891
2892
2893 [
2894 [
2895 [
2896
2897 [
2898 [
2899 [
2900 [
2901 [
2902 [
2903
2904 Section 52. Section 61-2c-204.1 is amended to read:
2905 61-2c-204.1. Education providers -- Education requirements -- Examination
2906 requirements.
2907 (1) As used in this section:
2908 (a) "Approved continuing education course" means a course of continuing education
2909 that is approved by the nationwide database.
2910 (b) "Approved prelicensing education course" means a course of prelicensing
2911 education that is approved by the nationwide database.
2912 (2) (a) A person may not provide Utah-specific prelicensing education or
2913 Utah-specific continuing education if that person is not certified by the division under this
2914 chapter.
2915 (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
2916 the division shall make rules establishing:
2917 (i) certification criteria and procedures to become a certified education provider; and
2918 (ii) standards of conduct for a certified education provider.
2919 (c) In accordance with the rules described in Subsection (2)(b), the division shall
2920 certify a person to provide [
2921 Subsection (2)(a).
2922 [
2923 [
2924 (d) [
2925 names and addresses of certified education providers either directly or through a third party.
2926 (ii) A person who requests a list under this Subsection (2)(d) shall pay the costs
2927 incurred by the division to make the list available.
2928 (e) In certifying [
2929 may:
2930 (i) distinguish between an individual instructor and an entity that provides education;
2931 or
2932 (ii) approve:
2933 (A) Utah-specific prelicensing education; or
2934 (B) Utah-specific continuing education courses.
2935 (3) (a) The division may not:
2936 (i) license an individual under this chapter as a mortgage [
2937 has not completed the prelicensing education required by this section:
2938 (A) before taking the one or more licensing [
2939 Subsection (4); [
2940 (B) in the number of hours, not to exceed 90 hours, required by rule made by the
2941 division in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act[
2942
2943
2944
2945 [
2946 [
2947
2948 [
2949
2950 (C) that includes the prelicensing education required by federal licensing regulations;
2951 (ii) subject to Subsection (6), renew a license of an individual who has not completed
2952 the continuing education required by this section and Section 61-2c-205 [
2953 (A) in the number of hours required by rule made by the division in accordance with
2954 Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
2955 (B) that includes the continuing education required by federal licensing regulations; or
2956 (iii) [
2957 lending manager who has not completed the prelicensing education required by Section
2958 61-2c-206 before taking the licensing examination required by Section 61-2c-206 .
2959 (b) Subject to Subsection (3)(a) and with the concurrence of the division, the
2960 commission shall determine:
2961 (i) except as provided in Subsection 61-2c-206 (1)[
2962 hours of prelicensing education required to obtain a license;
2963 (ii) the subject matters of the prelicensing education required under this section and
2964 Section 61-2c-206 , including online education or distance learning options;
2965 (iii) the appropriate number of hours of continuing education required to renew a
2966 license[
2967
2968
2969 [
2970 [
2971
2972 [
2973
2974 (iv) the subject matter of courses the division may accept for continuing education
2975 purposes.
2976 (c) The commission may appoint a committee to make recommendations to the
2977 commission concerning approval of prelicensing education and continuing education courses,
2978 except that the commission shall appoint at least one member to the committee to represent
2979 each association that represents a significant number of individuals licensed under this
2980 chapter.
2981 (d) The division may by rule made in accordance with Title 63G, Chapter 3, Utah
2982 Administrative Rulemaking Act, provide for the calculation of continuing education credits,
2983 except that the rules shall be consistent with 12 U.S.C. Sec. 5105.
2984 (4) (a) The division may not license an individual under this chapter unless that
2985 individual first passes [
2986 (i) are adopted by the division in accordance with Title 63G, Chapter 3, Utah
2987 Administrative Rulemaking Act;
2988 (ii) meet the minimum federal licensing requirements; and
2989 (iii) are administered by an approved examination provider.
2990 (b) The commission, with the concurrence of the division, shall determine the
2991 requirements for:
2992 (i) a licensing examination that at least:
2993 [
2994 (A) meets the minimum federal licensing requirements; and
2995 (B) tests knowledge of the:
2996 (I) fundamentals of the English language;
2997 (II) arithmetic;
2998 (III) provisions of this chapter;
2999 (IV) rules adopted under this chapter;
3000 (V) basic residential mortgage principles and practices; and
3001 (VI) any other aspect of Utah law the commission determines is appropriate; and
3002 (ii) a licensing examination required under Section 61-2c-206 that:
3003 [
3004 (A) meets the requirements of Subsection (4)(b)(i); and
3005 (B) tests knowledge of the:
3006 (I) advanced residential mortgage principles and practices; and
3007 (II) other aspects of Utah law the commission, with the concurrence of the division,
3008 determines appropriate.
3009 (c) An individual who will engage in an activity as a mortgage loan originator, is not
3010 considered to have passed a licensing examination if that individual has not met the minimum
3011 competence requirements of 12 U.S.C. Sec. 5104(d)(3).
3012 (5) When reasonably practicable, the commission and the division shall make the
3013 [
3014 education requirements described in this section available electronically through one or more
3015 distance education methods approved by the commission and division.
3016 (6) (a) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
3017 the commission, with the concurrence of the division, shall make rules establishing procedures
3018 under which a licensee may be exempted from a Utah-specific continuing education
3019 [
3020 (i) for a period not to exceed four years; and
3021 (ii) upon a finding of reasonable cause.
3022 (b) An individual who engages in an activity as a mortgage loan originator may not
3023 under this Subsection (6) be exempted from the [
3024 education required under [
3025 who engages in an activity as a mortgage loan originator.
3026 Section 53. Section 61-2c-205 is amended to read:
3027 61-2c-205. Term of licensure -- Renewal -- Reporting of changes.
3028 (1) (a) A license issued under this chapter [
3029 (i) for the calendar year the license is issued:
3030 (A) if the license is issued on or before October 31, the license expires on December
3031 31 of the same calendar year; and
3032 (B) if the license is issued on or after November 1, the license expires on December 31
3033 of the following calendar year; and
3034 (ii) after the December 31 on which a license expires under Subsection (1)(a)(i), a
3035 license expires annually on December 31.
3036 (b) Notwithstanding Subsection (1)(a), the time period of a license may be extended or
3037 shortened by as much as one year to maintain or change a renewal cycle established by rule by
3038 the division.
3039 (2) To renew a license, no later than the date the license expires, a licensee shall in a
3040 manner provided by the division by rule:
3041 [
3042 (a) file a renewal statement;
3043 [
3044 (c) renew the licensee's registration with the nationwide database, including the
3045 payment of a fee required by the nationwide database;
3046 [
3047 Section 63J-1-504 ; and
3048 [
3049 the time of application for renewal, submit proof [
3050 having completed during the year before application the continuing education required under
3051 Section 61-2c-204.1 .
3052 (3) (a) A licensee under this chapter shall notify the division [
3053
3054 which there is a change in:
3055 (i) a name under which the licensee transacts the business of residential mortgage
3056 loans in this state;
3057 (ii) (A) if the licensee is an entity, the business location of the licensee; or
3058 (B) if the licensee is an individual, the home and business addresses of the individual;
3059 (iii) the principal lending manager of the entity;
3060 (iv) the entity with which an individual licensee is licensed to conduct the business of
3061 residential mortgage loans; or
3062 (v) any other information that is defined as material by rule made by the division.
3063 (b) Failure to notify the division of a change described in Subsection (3)(a) is separate
3064 grounds for disciplinary action against a licensee.
3065 (c) The division may charge a fee established in accordance with Section 63J-1-504
3066 for processing a change that a licensee is required to report to the division under Subsection
3067 (3)(a).
3068 (4) A licensee shall notify the division by sending the division a signed statement
3069 within 10 business days of:
3070 (a) (i) a conviction of a criminal offense;
3071 (ii) the entry of a plea in abeyance to a criminal offense; or
3072 (iii) the potential resolution of a criminal case by:
3073 (A) a diversion agreement; or
3074 (B) any other agreement under which a criminal charge is held in suspense for a
3075 period of time;
3076 (b) filing a personal bankruptcy or bankruptcy of a business that transacts the business
3077 of residential mortgage loans;
3078 (c) the suspension, revocation, surrender, cancellation, or denial of a professional
3079 license or professional registration of the licensee, whether the license or registration is issued
3080 by this state or another jurisdiction; or
3081 (d) the entry of a cease and desist order or a temporary or permanent injunction:
3082 (i) against the licensee by a court or licensing agency; and
3083 (ii) based on:
3084 (A) conduct or a practice involving the business of residential mortgage loans; or
3085 (B) conduct involving fraud, misrepresentation, or deceit.
3086 (5) (a) A license under this chapter expires if the licensee does not apply to renew the
3087 license on or before the expiration date of the license.
3088 (b) [
3089 expired may apply to reinstate the expired license, in a manner provided by the division by
3090 rule by:
3091 (i) requesting reinstatement;
3092 [
3093 under Section 63J-1-504 ; and
3094 [
3095
3096
3097 [
3098
3099
3100 [
3101
3102 [
3103
3104
3105 [
3106
3107
3108 [
3109
3110
3111 [
3112
3113 [
3114
3115 [
3116 [
3117 [
3118 [
3119
3120 (iii) reinstating the licensee's registration with the nationwide database, including the
3121 payment of a fee required by the nationwide database.
3122 Section 54. Section 61-2c-205.1 is amended to read:
3123 61-2c-205.1. Transition to use of nationwide database.
3124 (1) An individual not required to be licensed under this chapter as in effect on
3125 December 31, 2010, who is required to be licensed under this chapter as in effect on January
3126 1, 2011, may not engage in the business of residential mortgage loans on or after January 1,
3127 2011 without holding a license under this chapter.
3128 (2) An individual who applies for a license under this chapter on or after January 1,
3129 2011, shall meet the requirements of this chapter as in effect on January 1, 2011.
3130 (3) (a) This Subsection (3) applies to a licensee who:
3131 (i) will engage in an activity as a mortgage loan originator on or after January 1, 2011;
3132 and
3133 (ii) holds an active license under this chapter on December 31, 2010.
3134 (b) A licensee shall comply with the requirements of this chapter as in effect on
3135 January 1, 2011, by no later than January 1, 2011, in order to hold an active license on or after
3136 January 1, 2011.
3137 (c) The license of a licensee that fails to comply with this section on or before January
3138 1, 2011 becomes inactive on January 1, 2011 until:
3139 (i) the day on which the licensee complies with the requirements of this chapter; or
3140 (ii) the license expires.
3141 (4) (a) A license of an individual who will engage in an activity as a mortgage loan
3142 originator that is inactive on December 31, 2010, terminates as of January 1, 2011 unless that
3143 licensee provides on or before January 1, 2011, evidence satisfactory to the division that the
3144 licensee has complied with the requirements for registration under the nationwide database.
3145 (b) The division may by rule, made in accordance with Title 63G, Chapter 3, Utah
3146 Administrative Rulemaking Act, [
3147 (i) the "requirements for registration under the nationwide database" described in
3148 Subsection (4)(a);
3149 (ii) the evidence required by this Subsection (4); and
3150 (iii) the procedure for submitting the evidence required by this Subsection (4).
3151 (5) The division may make rules in accordance with Title 63G, Chapter 3, Utah
3152 Administrative Rulemaking Act, providing a process:
3153 (a) that is consistent with this section to transition the licensing of individuals engaged
3154 in the business of residential mortgage loans to the license requirements under this chapter as
3155 in effect on January 1, 2011; or
3156 (b) to suspend a requirement for holding a license under this chapter that is related to
3157 the nationwide database if:
3158 (i) the suspension is related to changes made to [
3159
3160 January 1, 2009; and
3161 (ii) the suspension ends on or before December 31, 2011.
3162 (6) The division may report or provide recommendations to the Legislature regarding
3163 changes, if any, that could be made to this chapter in response to changes made to the
3164 nationwide database or under [
3165
3166 grandfathering.
3167 Section 55. Section 61-2c-206 is amended to read:
3168 61-2c-206. Principal lending manager licenses.
3169 (1) To qualify for licensure as a principal lending manager under this chapter, an
3170 individual shall[
3171 (a) meet the standards in Section 61-2c-203 [
3172 [
3173 [
3174 [
3175 (b) successfully complete the following education:
3176 (i) mortgage loan originator prelicensing education as required by federal licensing
3177 regulations; and
3178 (ii) 40 hours of Utah-specific prelicensing education for a principal lending manager
3179 that is approved by the [
3180 [
3181 (c) successfully complete the following examinations:
3182 (i) the mortgage loan originator licensing examination as approved by the nationwide
3183 database; and
3184 (ii) the principal lending manager licensing examination approved by the commission
3185 under Section 61-2c-204.1 ;
3186 [
3187 active experience as a mortgage [
3188 preceding the day on which the application is submitted[
3189
3190 (e) submit an application in a manner established by the division by rule;
3191 (f) establish sponsorship with an entity licensed under this chapter;
3192 [
3193 nationwide database as a mortgage loan originator at the time of application, submit to the
3194 criminal background check required by Subsection 61-2c-202 (1)(b)[
3195 (h) pay a fee determined by the division under Section 63J-1-504 .
3196 (2) A principal lending manager may not:
3197 (a) engage in the business of residential mortgage loans on behalf of more than one
3198 entity at the same time[
3199 (b) be sponsored by more than one entity at the same time.
3200 Section 56. Section 61-2c-209 is enacted to read:
3201 61-2c-209. Sponsorship -- Affiliation.
3202 (1) (a) The division may not license an individual, and an individual licensed under
3203 this chapter may not conduct the business of residential mortgage loans unless:
3204 (i) if licensed as a mortgage loan originator, the individual:
3205 (A) is sponsored by an entity licensed under this chapter; and
3206 (B) is affiliated with a principal lending manager; or
3207 (ii) if licensed as a principal lending manager, the individual is sponsored by an entity
3208 licensed under this chapter.
3209 (b) The division may not license any entity and an entity licensed under this chapter
3210 may not conduct the business of residential mortgage loans unless the entity:
3211 (i) sponsors a principal lending manager;
3212 (ii) identifies at least one control person for the entity; and
3213 (iii) provides a list of the mortgage loan originators sponsored by the entity.
3214 (2) (a) A mortgage loan originator's license automatically becomes inactive the day on
3215 which:
3216 (i) the mortgage loan originator is not sponsored by an entity licensed under this
3217 chapter;
3218 (ii) the license of the entity with which the mortgage loan originator is sponsored
3219 becomes inactive or terminates;
3220 (iii) the mortgage loan originator is not affiliated with a principal lending manager; or
3221 (iv) the license of the principal lending manager with whom the mortgage loan
3222 originator is affiliated becomes inactive or terminates.
3223 (b) A principal lending manager's license automatically becomes inactive the day on
3224 which:
3225 (i) the principal lending manager is not sponsored by an entity licensed under this
3226 chapter; or
3227 (ii) the license of the entity with which the principal lending manager is sponsored
3228 becomes inactive or terminates.
3229 (c) A entity licensed under this chapter automatically becomes inactive the day on
3230 which the entity's sponsorship with its principal lending manager terminates.
3231 (3) (a) A person whose license is inactive may not transact the business of residential
3232 mortgage loans.
3233 (b) To activate an inactive mortgage loan originator license, an individual shall:
3234 (i) provide evidence that the individual:
3235 (A) is sponsored by an entity that holds an active license under this chapter; and
3236 (B) is affiliated with a principal lending manager who holds an active license under
3237 this chapter; and
3238 (ii) pay a fee to the division set in accordance with Section 63J-1-504 .
3239 (c) To activate an inactive principal lending manager license, an individual shall:
3240 (i) provide evidence that the individual is sponsored by an entity that holds an active
3241 license under this chapter; and
3242 (ii) pay a fee to the division set in accordance with Section 63J-1-504 .
3243 (d) To activate an inactive license held by an entity, an entity shall:
3244 (i) provide evidence of the entity's sponsorship of a principal lending manager; and
3245 (ii) pay a fee to the division set in accordance with Section 63J-1-504 .
3246 (4) (a) A mortgage loan originator shall conduct the business of residential mortgage
3247 loans only:
3248 (i) through the principal lending manager with whom the individual is affiliated; and
3249 (ii) in the business name under which the principal lending manager is authorized by
3250 the division to do business.
3251 (b) An individual licensed under this chapter may not:
3252 (i) engage in the business of residential mortgage loans on behalf of more than one
3253 entity at the same time;
3254 (ii) be sponsored by more than one entity at the same time;
3255 (iii) transact the business of residential mortgage loans for the following at the same
3256 time:
3257 (A) an entity licensed under this chapter; and
3258 (B) an entity that is exempt from licensure under Section 61-2c-105 ; or
3259 (iv) if the individual is a mortgage loan originator, receive consideration for
3260 transacting the business of residential mortgage loans from any person except the principal
3261 lending manager with whom the mortgage loan originator is affiliated.
3262 (c) This Subsection (4) does not restrict the number of:
3263 (i) different lenders a person may use as a funding source for a residential mortgage
3264 loan; or
3265 (ii) entities in which an individual may have an ownership interest, regardless of
3266 whether the entities are:
3267 (A) licensed under this chapter; or
3268 (B) exempt under Section 61-2c-105 .
3269 (5) The division by rule made in accordance with Title 63G, Chapter 3, Utah
3270 Administrative Rulemaking Act, may make rules that:
3271 (a) define what constitutes:
3272 (i) affiliation; or
3273 (ii) sponsorship; and
3274 (b) provide procedures by which:
3275 (i) an individual who is licensed under this chapter may provide evidence of
3276 sponsorship by an entity that is licensed under this chapter;
3277 (ii) a mortgage loan originator may provide evidence of affiliation with a principal
3278 lending manager; and
3279 (iii) an entity licensed under this chapter may:
3280 (A) provide evidence of its sponsorship of a principal lending manager;
3281 (B) identify at least one control person for the entity; and
3282 (C) provide a list of the one or more mortgage loan originators that the entity sponsors.
3283 Section 57. Section 61-2c-301 is amended to read:
3284 61-2c-301. Prohibited conduct -- Violations of the chapter.
3285 (1) A person transacting the business of residential mortgage loans in this state may
3286 not:
3287 (a) give or receive compensation or anything of value in exchange for a referral of
3288 residential mortgage loan business;
3289 (b) charge a fee in connection with a residential mortgage loan transaction:
3290 (i) that is excessive; or
3291 (ii) if the person does not comply with Section 70D-2-305 ;
3292 (c) give or receive compensation or anything of value in exchange for a referral of
3293 settlement or loan closing services related to a residential mortgage loan transaction;
3294 (d) do any of the following to induce a lender to extend credit as part of a residential
3295 mortgage loan transaction:
3296 (i) make a false statement or representation;
3297 (ii) cause false documents to be generated; or
3298 (iii) knowingly permit false information to be submitted by any party;
3299 (e) give or receive compensation or anything of value, or withhold or threaten to
3300 withhold payment of an appraiser fee, to influence the independent judgment of an appraiser
3301 in reaching a value conclusion in a residential mortgage loan transaction, except that it is not a
3302 violation of this section for a licensee to withhold payment because of a bona fide dispute
3303 regarding a failure of the appraiser to comply with the licensing law or the Uniform Standards
3304 of Professional Appraisal Practice;
3305 (f) violate or not comply with:
3306 (i) this chapter;
3307 (ii) an order of the commission or division; or
3308 (iii) a rule made by the division;
3309 (g) fail to respond within the required time period to:
3310 (i) a notice or complaint of the division; or
3311 (ii) a request for information from the division;
3312 (h) make false representations to the division, including in a licensure statement;
3313 (i) for a residential mortgage loan transaction beginning on or after January 1, 2004,
3314 engage in the business of residential mortgage loans with respect to the transaction if the
3315 person also acts in any of the following capacities with respect to the same residential
3316 mortgage loan transaction:
3317 (i) appraiser;
3318 (ii) escrow agent;
3319 (iii) real estate agent;
3320 (iv) general contractor; or
3321 (v) title insurance [
3322 (j) order a title insurance report or hold a title insurance policy unless the person
3323 provides to the title insurer a copy of a valid, current license under this chapter;
3324 (k) engage in unprofessional conduct as defined by rule;
3325 (l) engage in an act or omission in transacting the business of residential mortgage
3326 loans that constitutes dishonesty, fraud, or misrepresentation;
3327 (m) engage in false or misleading advertising;
3328 (n) (i) fail to account for [
3329 mortgage loan;
3330 (ii) use [
3331 [
3332 (iii) except as provided in Subsection (4), retain [
3333 the services are not performed;
3334 (o) fail, within 90 calendar days of a request from a borrower who has paid for an
3335 appraisal, to give a copy of an appraisal ordered and used for a transaction to the borrower;
3336 (p) engage in an act that is performed to:
3337 (i) evade this chapter; or
3338 (ii) assist another person to evade this chapter;
3339 (q) recommend or encourage default, delinquency, or continuation of an existing
3340 default or delinquency, by a mortgage applicant on an existing indebtedness before the closing
3341 of a residential mortgage loan that will refinance all or part of the indebtedness;
3342 (r) in the case of the principal lending manager of an entity or a branch office of an
3343 entity, fail to exercise reasonable supervision over the activities of:
3344 (i) unlicensed staff; and
3345 (ii) a mortgage [
3346 lending manager;
3347 (s) pay or offer to pay an individual who does not hold a license under this chapter for
3348 work that requires the individual to hold a license under this chapter;
3349 (t) in the case of a dual licensed title licensee as defined in Section 31A-2-402 :
3350 (i) provide a title insurance product or service without the approval required by
3351 Section 31A-2-405 ; or
3352 (ii) knowingly provide false or misleading information in the statement required by
3353 Subsection 31A-2-405 (2); or
3354 (u) represent to the public that the person can or will perform any act of a mortgage
3355 loan originator if that person is not licensed under this chapter because the person is exempt
3356 under Subsection 61-2c-102 (1)(f)(ii)(A), including through:
3357 (i) advertising;
3358 (ii) a business card;
3359 (iii) [
3360 (iv) a brochure;
3361 (v) a sign;
3362 (vi) a rate list; or
3363 (vii) other promotional item.
3364 (2) Whether or not the crime is related to the business of residential mortgage loans, it
3365 is a violation of this chapter for a licensee or a person who is a certified education provider to
3366 do any of the following with respect to a criminal offense that involves moral turpitude:
3367 (a) be convicted;
3368 (b) plead guilty or nolo contendere;
3369 (c) enter a plea in abeyance; or
3370 (d) be subjected to a criminal disposition similar to the ones described in Subsections
3371 (2)(a) through (c).
3372 (3) A principal lending manager does not violate Subsection (1)(r) if:
3373 (a) in contravention of the principal lending manager's written policies and
3374 instructions, an affiliated licensee of the principal lending manager violates:
3375 (i) this chapter; or
3376 (ii) rules made by the division under this chapter;
3377 (b) the principal lending manager established and followed reasonable procedures to
3378 ensure that affiliated licensees receive adequate supervision;
3379 (c) upon learning of a violation by an affiliated licensee, the principal lending manager
3380 attempted to prevent or mitigate the damage;
3381 (d) the principal lending manager did not participate in or ratify the violation by an
3382 affiliated licensee; and
3383 (e) the principal lending manager did not attempt to avoid learning of the violation.
3384 (4) Notwithstanding Subsection (1)(n)(iii), a licensee may, upon compliance with
3385 Section 70D-2-305 , charge a reasonable cancellation fee for work done originating a mortgage
3386 if the mortgage is not closed.
3387 Section 58. Section 61-2c-302 is amended to read:
3388 61-2c-302. Record requirements.
3389 (1) For the time period specified in Subsection (2), a licensee shall make or possess
3390 any record required for that licensee by a rule made by the division.
3391 (2) A licensee shall maintain in its possession a record described in Subsection (1) for
3392 four years from the last to occur of the following:
3393 (a) the final entry on a residential mortgage loan is made by that licensee;
3394 (b) if the residential mortgage loan is serviced by the licensee:
3395 (i) the residential mortgage loan is paid in full; or
3396 (ii) the licensee ceases to service the residential mortgage loan; or
3397 (c) if the residential mortgage loan is not serviced by the licensee, the residential
3398 mortgage loan is closed.
3399 (3) A licensee shall:
3400 (a) make available to the division for inspection and copying during normal business
3401 hours all records required to be maintained under this chapter; and
3402 (b) upon reasonable notice from the division to a licensee, produce all records
3403 described in Subsection (3)(a) that are related to an investigation being conducted by the
3404 division at the division office for inspection and copying by the division.
3405 (4) A licensee who is an entity shall maintain and produce for inspection by the
3406 division a current list of all individuals whose licenses are [
3407 entity.
3408 (5) (a) A licensee who engages in an activity as a mortgage loan originator shall
3409 maintain [
3410 nationwide database as required by 12 U.S.C. Sec. 5104(e) for at least four years from the day
3411 on which the licensee submits the report of condition to the nationwide database.
3412 (b) Upon request by the division, a mortgage loan originator shall produce a report of
3413 condition for inspection by the division.
3414 Section 59. Section 61-2c-401 is amended to read:
3415 61-2c-401. Investigations.
3416 (1) The division may investigate or cause to be investigated the actions of:
3417 (a) (i) a licensee;
3418 (ii) a person required to be licensed under this chapter; or
3419 (iii) the following with respect to an entity that is a licensee or an entity required to be
3420 licensed under this chapter:
3421 (A) a manager;
3422 (B) a managing partner;
3423 (C) a director;
3424 (D) an executive officer; or
3425 (E) an individual who performs a function similar to an individual listed in this
3426 Subsection (1)(a)(iii);
3427 (b) (i) an applicant for licensure or renewal of licensure under this chapter; or
3428 (ii) the following with respect to an entity that has applied for a license or renewal of
3429 licensure under this chapter:
3430 (A) a manager;
3431 (B) a managing partner;
3432 (C) a director;
3433 (D) an executive officer; or
3434 (E) an individual who performs a function similar to an individual listed in this
3435 Subsection (1)(b)(ii); or
3436 (c) [
3437 mortgage loans within this state.
3438 (2) In conducting investigations, records inspections, and adjudicative proceedings,
3439 the division may:
3440 (a) administer an oath or affirmation;
3441 (b) subpoena witnesses and evidence;
3442 (c) take evidence;
3443 (d) require the production of [
3444 record or information relevant to an investigation; and
3445 (e) serve a subpoena by certified mail.
3446 (3) A failure to respond to a request by the division in an investigation authorized
3447 under this chapter is considered as a separate violation of this chapter, including:
3448 (a) failing to respond to a subpoena;
3449 (b) withholding evidence; or
3450 (c) failing to produce [
3451 (4) The division may inspect and copy [
3452 residential mortgage loans by a licensee under this chapter, regardless of whether the [
3453
3454 (a) investigations of complaints; or
3455 (b) inspections of the [
3456 (i) this chapter; or
3457 (ii) rules adopted by the division under this chapter.
3458 (5) (a) If a licensee maintains [
3459 rules adopted by the division under this chapter outside Utah, the licensee is responsible for all
3460 reasonable costs, including reasonable travel costs, incurred by the division in inspecting
3461 [
3462 (b) Upon receipt of notification from the division that [
3463 outside Utah [
3464 the licensee shall deposit with the division a deposit of $500 to cover the division's expenses
3465 in connection with the examination of the [
3466 (c) If the deposit described in Subsection (5)(b) is insufficient to meet the estimated
3467 costs and expenses of examination of the [
3468 additional deposit to cover the estimated costs and expenses of the division.
3469 (d) (i) [
3470 General Fund as a dedicated credit to be used by the division under Subsection (5)(a).
3471 (ii) The division, with the concurrence of the executive director, may use [
3472
3473 credit for the records inspection costs under Subsection (5)(a).
3474 (iii) A deposit under this Subsection (5) shall be refunded to the licensee to the extent
3475 it is not used, together with an itemized statement from the division of all amounts it has used.
3476 (e) [
3477 (6) Failure to deposit with the division a deposit required to cover the costs of
3478 examination of [
3479 automatic suspension of a license until the deposit is made.
3480 (7) (a) If a person is found to have violated this chapter or a rule made under this
3481 chapter, the person shall pay the costs incurred by the division to copy a record required under
3482 this chapter, including the costs incurred to copy an electronic record in a universally readable
3483 format.
3484 (b) If a person fails to pay the costs described in Subsection (7)(a) when due, the
3485 person's license or certification is automatically suspended:
3486 (i) beginning the day on which the payment of costs is due; and
3487 (ii) ending the day on which the costs are paid.
3488 Section 60. Section 61-2c-402 is amended to read:
3489 61-2c-402. Disciplinary action.
3490 (1) Subject to the requirements of Section 61-2c-402.1 , the commission, with the
3491 concurrence of the division, may impose a sanction described in Subsection (2) against a
3492 person if the person:
3493 (a) (i) is a licensee or person required to be licensed under this chapter; and
3494 (ii) violates this chapter; or
3495 (b) (i) is a certified education provider or person required to be certified to provide
3496 prelicensing or continuing education under this chapter; and
3497 (ii) violates this chapter.
3498 (2) The commission, with the concurrence of the director, may against a person
3499 described in Subsection (1):
3500 (a) impose an educational requirement;
3501 (b) impose a civil penalty against the individual or entity in an amount not to exceed
3502 the greater of:
3503 (i) [
3504 (ii) the amount equal to any gain or economic benefit derived from each violation;
3505 (c) deny an application for an original license;
3506 (d) do any of the following to a license under this chapter:
3507 (i) suspend;
3508 (ii) revoke;
3509 (iii) place on probation;
3510 (iv) deny renewal;
3511 (v) deny reinstatement; or
3512 (vi) in the case of a denial [
3513 the expiration date of a license, set a waiting period for a person to apply for a license under
3514 this chapter;
3515 (e) issue a cease and desist order;
3516 (f) require the reimbursement of the division of costs incurred by the division related
3517 to the recovery, storage, or destruction of a record that the person disposes of in a manner that
3518 violates this chapter or a rule made under this chapter;
3519 (g) modify a sanction described in Subsections (2)(a) through (f) if the commission
3520 finds that the person complies with court ordered restitution; or
3521 (h) impose any combination of sanctions described in this Subsection (2).
3522 (3) (a) If the commission, with the concurrence of the division, issues an order that
3523 orders a fine or educational requirements as part of a disciplinary action against a person,
3524 including a stipulation and order, the commission shall state in the order the deadline by
3525 which the person shall comply with the fine or educational requirements.
3526 (b) If a person fails to comply with a stated deadline:
3527 (i) the person's license or certificate is automatically suspended:
3528 (A) beginning the day specified in the order as the deadline for compliance; and
3529 (B) ending the day on which the person complies in full with the order; and
3530 (ii) if the person fails to pay a fine required by an order, the division may begin a
3531 collection process:
3532 (A) established by the division by rule made in accordance with Title 63G, Chapter 3,
3533 Utah Administrative Rulemaking Act; and
3534 (B) subject to Title 63A, Chapter 8, Office of State Debt Collection.
3535 (4) (a) A person whose license was revoked under this chapter before May 11, 2010,
3536 may request that the revocation be converted to a suspension under this Subsection (4):
3537 (i) if the revocation was not as a result of fraud, misrepresentation, or deceit; and
3538 (ii) by filing a written request with the division.
3539 (b) Upon receipt of a request to convert a revocation under this Subsection (4), the
3540 commission, with the concurrence of the director, shall determine whether to convert the
3541 revocation.
3542 (c) The commission may delegate to the division the authority to make a decision on
3543 whether to convert a revocation.
3544 (d) If the division, acting under Subsection (4)(c), denies a request to convert a
3545 revocation, the person who requests the conversion may appeal the decision in a hearing
3546 conducted by the commission:
3547 (i) after the division denies the request to convert the revocation; and
3548 (ii) in accordance with Title 63G, Chapter 4, Administrative Procedures Act.
3549 (e) The commission may delegate to the division or an administrative law judge the
3550 authority to conduct a hearing described in Subsection (4)(d).
3551 Section 61. Section 61-2c-404 is amended to read:
3552 61-2c-404. Civil actions.
3553 (1) (a) A person who violates this chapter is liable for an additional penalty, as
3554 determined by the court, of at least the amount the person received in consequence of a
3555 violation of this chapter as:
3556 (i) commission;
3557 (ii) compensation; or
3558 (iii) profit.
3559 (b) A person aggrieved by a violation of this chapter may:
3560 (i) bring an action for a penalty described in Subsection (1)(a); and
3561 (ii) use a penalty obtained under Subsection (1)(a) for the person's own use and
3562 benefit.
3563 (2) A person who is not licensed under this chapter at the time of an act or service that
3564 requires a license under this chapter may not bring an action in court for the recovery of a
3565 commission, fee, or compensation for that act or service.
3566 (3) (a) A mortgage [
3567 [
3568 for transacting the business of residential mortgage loans unless the action is brought against
3569 the principal lending manager with whom the mortgage [
3570 the time of the act or service that is the subject of the action.
3571 (b) An action by an entity for the recovery of a fee, commission, or other
3572 compensation shall be brought by:
3573 (i) an entity; or
3574 (ii) the principal lending manager of an entity on behalf of the entity.
3575 (4) A principal lending manager who transacts the business of residential mortgage
3576 loans on the principal lending manager's own behalf may sue in the principal lending
3577 manager's own name for the recovery of a fee, commission, or compensation for transacting
3578 the business of residential mortgage loans.
3579 Section 62. Section 61-2c-501 is amended to read:
3580 61-2c-501. Fund created.
3581 (1) [
3582 Mortgage Loan Education, Research, and Recovery Fund."
3583 [
3584
3585 (2) The interest earned on the fund shall be deposited into the fund.
3586 (3) [
3587 $100,000 [
3588 person licensed under this chapter.
3589 [
3590 Section 63. Section 61-2c-501.5 is enacted to read:
3591 61-2c-501.5. Definitions.
3592 As used in this part:
3593 (1) "Civil judgment" means a judgment in a civil action that:
3594 (a) is awarded in an action brought against a real estate licensee on the basis of fraud,
3595 misrepresentation, or deceit in a residential mortgage loan transaction; and
3596 (b) awards actual damages.
3597 (2) "Criminal restitution judgment" means a judgment that, in accordance with the
3598 Utah Code of Criminal Procedure, orders criminal restitution to a person and against a real
3599 estate licensee for a criminal offense involving fraud, misrepresentation, or deceit in a
3600 residential mortgage loan transaction.
3601 (3) "Final judgment" means one of the following judgments upon termination of the
3602 proceedings related to the judgment, including appeals:
3603 (a) a civil judgment; or
3604 (b) a criminal restitution judgment.
3605 (4) "Fund" means the Residential Mortgage Loan Education, Research, and Recovery
3606 Fund created in Section 61-2c-501 .
3607 Section 64. Section 61-2c-502 is amended to read:
3608 61-2c-502. Additional license fee.
3609 (1) An individual who applies for or renews a license shall pay, in addition to [
3610
3611 (a) determined by the division with the concurrence of the commission; and
3612 (b) not to exceed $18.
3613 (2) (a) An entity that applies for or renews an entity license shall pay, in addition to
3614 [
3615 fee:
3616 [
3617 [
3618 (b) This Subsection (2) applies:
3619 (i) notwithstanding that an entity is operating under an assumed name registered with
3620 the division as required by Subsection 61-2c-201 (9); and
3621 (ii) to each branch office of an entity that is licensed under this chapter.
3622 (3) Notwithstanding Section 13-1-2 , the following shall be paid into the fund to be
3623 used as provided in this part:
3624 (a) a fee provided in this section;
3625 (b) a fee for certifying:
3626 (i) a school as a certified education provider;
3627 (ii) a prelicensing or continuing education course; or
3628 (iii) a prelicensing or continuing education provider as an instructor; and
3629 (c) a civil penalty imposed under this chapter.
3630 (4) If the balance in the fund that is available to satisfy a judgment against a licensee
3631 decreases to less than $100,000, the division may make an additional assessment to a licensee
3632 to maintain the balance available at $100,000 to satisfy judgments.
3633 Section 65. Section 61-2c-503 is amended to read:
3634 61-2c-503. Notice to division -- Judgment against mortgage licensee -- Fraud,
3635 misrepresentation, or deceit -- Verified petition for order directing payment from fund --
3636 Limitations and procedure.
3637 (1) [
3638 [
3639
3640 (a) the person obtains a final judgment;
3641 (b) the person complies with the requirements under this part;
3642 (c) the person is not complicit in the fraud, misrepresentation, or deceit that is the
3643 basis of the claim; and
3644 (d) the final judgment that is the basis for the claim:
3645 (i) has not been discharged in bankruptcy; and
3646 (ii) when a bankruptcy proceeding is open or commenced during the pendency of the
3647 claim, the person obtains an order from the bankruptcy court declaring the final judgment and
3648 related debt to be nondischargeable.
3649 (2) (a) A person may not bring a claim against the fund for money owed under a civil
3650 judgment unless, within 10 business days of the day on which the person brings the civil
3651 action that results in the civil judgment, the person sends to the division a signed notification
3652 alleging fraud, misrepresentation, or deceit.
3653 (b) Within 30 calendar days [
3654 of the day on which the division receives a notice under Subsection (1), the division may
3655 intervene in the action.
3656 [
3657
3658
3659
3660 (3) (a) After obtaining a final judgment, to file a claim against the fund, a person shall:
3661 (i) file a verified petition in the court where the final judgment [
3662 seeking an order directing payment from the fund [
3663 actual damages [
3664 (ii) serve a copy of the verified petition described in Subsection (3)(a)(i) on the
3665 division; and
3666 (iii) file a copy of the affidavit of service of the verified petition with the court.
3667 [
3668 (i) punitive damages[
3669 (ii) attorney fees;
3670 (iii) interest[
3671 (iv) court costs.
3672 [
3673 transaction, the liability of the fund may not exceed:
3674 (i) $15,000 for a single transaction;
3675 (ii) $45,000 for an individual licensee; or
3676 (iii) $45,000 for an entity.
3677 [
3678 [
3679 [
3680
3681 [
3682
3683 [
3684 [
3685 (5) Subject to Subsection (6), a court may order payment from the fund under this
3686 section only if the person who files the petition shows that the person:
3687 (a) is not:
3688 [
3689 (ii) in the case of a criminal judgment, the spouse of the criminal defendant; or
3690 [
3691 individual described in Subsection (5)(a)(i) or (ii);
3692 [
3693 [
3694 (c) is owed damages under a final judgment that:
3695 (i) is issued by the court in the manner prescribed under this section[
3696 (ii) indicates the amount of the final judgment awarded;
3697 [
3698 (d) has proved the amount still owing on the final judgment [
3699 on which the petition is filed;
3700 [
3701 [
3702 (e) (i) (A) has a writ of execution issued upon the final judgment; and
3703 [
3704
3705 could be found; [
3706 [
3707 criminal defendant:
3708 [
3709 (A) has not realized an amount sufficient to satisfy the final judgment; and
3710 [
3711 amount realized; [
3712 [
3713 [
3714 debtor or criminal defendant has any interest in property, real or personal, that may satisfy the
3715 final judgment; and
3716 [
3717 from the assets of the judgment debtor or criminal defendant.
3718 [
3719 [
3720
3721 [
3722
3723 [
3724
3725
3726
3727 [
3728
3729 Section 66. Section 61-2c-505 is amended to read:
3730 61-2c-505. Court determination and order.
3731 If the court determines that a claim should be levied against the portion of the fund
3732 allocated to carry out [
3733 the division to pay from the fund the portion of [
3734 payable from the fund under Section 61-2c-503 .
3735 Section 67. Section 61-2c-507 is amended to read:
3736 61-2c-507. Division subrogated -- Authority to revoke license.
3737 (1) If the division pays a [
3738 with this part:
3739 (a) the division is subrogated to the rights of [
3740 the amounts paid out of the fund; and
3741 (b) any amount and interest recovered by the division shall be deposited in the fund.
3742 (2) (a) Subject to Subsection (2)(b), the license of a licensee for whom payment from
3743 the fund is made under this part is automatically revoked as of the earlier of the day on which:
3744 (i) the division is ordered by a court to pay from the fund; or
3745 (ii) the division pays from the fund.
3746 (b) (i) A person whose license is revoked under Subsection (2)(a) may appeal the
3747 revocation in a hearing conducted by the commission:
3748 (A) after the revocation; and
3749 (B) in accordance with Title 63G, Chapter 4, Administrative Procedures Act.
3750 (ii) The commission may delegate:
3751 (A) to the division or an administrative law judge the authority to conduct a hearing
3752 described in Subsection (2)(b)(i); or
3753 (B) to the division the authority to make a decision on whether relief from a revocation
3754 should be granted.
3755 (3) Unless the revocation is not upheld after a hearing described in Subsection (2)(b),
3756 a licensee whose license is revoked pursuant to Subsection (2) may not apply for a new license
3757 until the licensee pays into the fund:
3758 (a) the amount paid out of the fund on behalf of the licensee; and
3759 (b) interest at a rate determined by the division with the concurrence of the
3760 commission.
3761 Section 68. Section 61-2f-101 is enacted to read:
3762
3763
3764 61-2f-101. Title.
3765 This chapter is known as the "Real Estate Licensing and Practices Act."
3766 Section 69. Section 61-2f-102 , which is renumbered from Section 61-2-2 is
3767 renumbered and amended to read:
3768 [
3769 As used in this chapter:
3770 (1) "Associate [
3771 individual who is:
3772 (a) employed or engaged as an independent contractor by or on behalf of a [
3773 principal [
3774 valuable consideration[
3775 (b) licensed under this chapter as [
3776 (2) "Branch office" means a principal broker's real estate brokerage office [
3777 that is not the principal broker's main office.
3778 (3) "Commission" means the Real Estate Commission established under this chapter.
3779 (4) "Concurrence" means the entities given a concurring role must jointly agree for
3780 action to be taken.
3781 (5) "Condominium[
3782 (6) "Condominium homeowners' association" means [
3783 owners acting as a group in accordance with declarations and bylaws.
3784 (7) (a) "Condominium hotel" means one or more condominium units that are operated
3785 as a hotel.
3786 (b) "Condominium hotel" does not mean a hotel consisting of condominium units, all
3787 of which are owned by a single entity.
3788 (8) "Director" means the director of the Division of Real Estate.
3789 (9) "Division" means the Division of Real Estate.
3790 (10) "Entity" means:
3791 (a) a corporation;
3792 (b) a partnership;
3793 (c) a limited liability company;
3794 (d) a company;
3795 (e) an association;
3796 (f) a joint venture;
3797 (g) a business trust;
3798 (h) a trust; or
3799 (i) any organization similar to an entity described in Subsections (10)(a) through (h).
3800 [
3801 [
3802 the division as the principal broker's primary brokerage office.
3803 (13) "Person" means an individual or entity.
3804 [
3805 an individual who:
3806 (a) (i) [
3807 valuable consideration;
3808 (ii) buys, exchanges, or auctions real estate, options on real estate, or improvements on
3809 real estate with the expectation of receiving valuable consideration; or
3810 [
3811 out to be engaged in the business described in Subsection [
3812 (b) is employed by or on behalf of the owner of real estate or by a prospective
3813 purchaser of real estate [
3814 Subsection [
3815 salary, a commission basis, upon a salary and commission basis, or otherwise;
3816 (c) [
3817 property owned by another person; or [
3818 (ii) advertises or otherwise holds [
3819 management;
3820 (d) [
3821 in the procurement of prospects for or the negotiation of [
3822 in Subsections [
3823 (e) except for [
3824 mortgage lender, title insurance producer, or an employee of a mortgage lender or title
3825 insurance producer, assists or directs in the closing of [
3826 expectation of receiving valuable consideration[
3827 (f) is licensed as a principal broker under this chapter.
3828 [
3829 receiving valuable consideration, the management of [
3830 person or advertising or otherwise claiming to be engaged in property management by:
3831 (i) advertising for, arranging, negotiating, offering, or otherwise attempting or
3832 participating in a transaction calculated to secure the rental or leasing of real estate;
3833 (ii) collecting, agreeing, offering, or otherwise attempting to collect rent for the real
3834 estate and accounting for and disbursing the money collected; or
3835 (iii) authorizing expenditures for repairs to the real estate.
3836 (b) "Property management" does not include:
3837 (i) hotel or motel management;
3838 (ii) rental of tourist accommodations, including hotels, motels, tourist homes,
3839 condominiums, condominium hotels, mobile home park accommodations, campgrounds, or
3840 similar public accommodations for [
3841 management activities associated with these rentals; or
3842 (iii) the leasing or management of surface or subsurface minerals or oil and gas
3843 interests, if the leasing or management is separate from a sale or lease of the surface estate.
3844 [
3845 property.
3846 [
3847
3848
3849
3850 [
3851 service for wages or other remuneration, whose employer withholds federal employment taxes
3852 under a contract of hire, written or oral, express or implied.
3853 (b) "Regular salaried employee" does not include [
3854 performs services on a project-by-project basis or on a commission basis.
3855 [
3856 suspended.
3857 [
3858 following revocation of the license.
3859 [
3860 or before the date the license expires.
3861 (21) "Sales agent" means an individual who is:
3862 (a) affiliated with a principal broker, either as an independent contractor or an
3863 employee as provided in Section 61-2f-303 , to perform for valuable consideration an act
3864 described in Subsection (14); and
3865 (b) licensed under this chapter as a sales agent.
3866 [
3867 interest in real property by two or more persons that is [
3868 (i) a tenancy in common; or
3869 (ii) any other legal form of undivided estate in real property including:
3870 (A) a fee estate;
3871 (B) a life estate; or
3872 (C) other long-term estate.
3873 (b) "Undivided fractionalized long-term estate" does not include a joint tenancy.
3874 Section 70. Section 61-2f-103 , which is renumbered from Section 61-2-5.5 is
3875 renumbered and amended to read:
3876 [
3877 (1) There is created within the division a Real Estate Commission. The commission
3878 shall:
3879 (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
3880 make rules for the administration of this chapter that are not inconsistent with this chapter,
3881 including:
3882 (i) licensing of:
3883 (A) a principal [
3884 (B) an associate [
3885 (C) a sales [
3886 [
3887 (ii) registration of:
3888 (A) an entity; and
3889 [
3890 [
3891 [
3892 [
3893 (A) a real estate [
3894 (B) a course [
3895 [
3896 (C) an instructor;
3897 [
3898 licensee under this chapter;
3899 [
3900 [
3901 [
3902 chapter;
3903 [
3904 fractionalized long-term estate; and
3905 [
3906 Subsection [
3907 (b) establish, with the concurrence of the division, [
3908 this chapter [
3909 under Part 5, Real Estate Education, Research, and Recovery Fund Act;
3910 (c) conduct [
3911 to an administrative law judge or the division relating to the:
3912 (i) licensing of [
3913 (ii) conduct of [
3914 (iii) the certification or conduct of [
3915 instructor regulated under this chapter; or
3916 (iv) violation of this chapter by any person;
3917 (d) with the concurrence of the director, impose [
3918 Section [
3919 (e) advise the director on the administration and enforcement of [
3920 affecting the division and the real estate sales and property management industries;
3921 (f) advise the director on matters affecting the division budget;
3922 (g) advise and assist the director in conducting real estate seminars; and
3923 (h) perform other duties as provided by[
3924 [
3925 (2) (a) The commission shall be comprised of five members appointed by the governor
3926 and approved by the Senate.
3927 (b) Four of the commission members shall:
3928 (i) have at least five years' experience in the real estate business; and
3929 (ii) hold an active principal broker, associate broker, or sales agent license.
3930 (c) One commission member shall be a member of the general public.
3931 (d) [
3932 described in Subsection (2)(b) [
3933 resides in the same county in the state as another commission member.
3934 (e) At least one commission member described in Subsection (2)(b) shall at the time of
3935 an appointment reside in a county that is not a county of the first or second class.
3936 (3) (a) Except as required by Subsection (3)(b), as terms of current commission
3937 members expire, the governor shall appoint each new member or reappointed member to a
3938 four-year term ending June 30.
3939 (b) Notwithstanding the requirements of Subsection (3)(a), the governor shall, at the
3940 time of appointment or reappointment, adjust the length of terms to ensure that the terms of
3941 commission members are staggered so that approximately half of the commission is appointed
3942 every two years.
3943 (c) Upon the expiration of the term of a member of the commission, the member of the
3944 commission shall continue to hold office until a successor is appointed and qualified.
3945 (d) A commission member may not serve more than two consecutive terms.
3946 (e) Members of the commission shall annually select one member to serve as chair.
3947 (4) When a vacancy occurs in the membership for any reason, [
3948
3949 unexpired term.
3950 (5) (a) A member may not receive compensation or benefits for the member's services,
3951 but may receive per diem and expenses incurred in the performance of the member's official
3952 duties at the rates established by the Division of Finance under Sections 63A-3-106 and
3953 63A-3-107 .
3954 (b) A member may decline to receive per diem and expenses for the member's service.
3955 (6) (a) The commission shall meet at least monthly.
3956 (b) The director may call additional meetings:
3957 (i) at the director's discretion;
3958 (ii) upon the request of the chair; or
3959 (iii) upon the written request of three or more commission members.
3960 (7) Three members of the commission constitute a quorum for the transaction of
3961 business.
3962 Section 71. Section 61-2f-104 , which is renumbered from Section 61-2-14 is
3963 renumbered and amended to read:
3964 [
3965 be available.
3966 [
3967 the names and addresses of [
3968 chapter either directly or through a third party.
3969 (2) A person who requests a list under Subsection (1) shall pay the costs incurred by
3970 the division to make the list available.
3971 Section 72. Section 61-2f-105 is enacted to read:
3972 61-2f-105. Fees.
3973 (1) In addition to when expressly authorized in another provision of this chapter, the
3974 division may charge and collect reasonable fees determined by the commission with the
3975 concurrence of the division under Section 63J-1-504 to cover the costs for:
3976 (a) issuing a new or duplicate license;
3977 (b) registering an entity or branch office;
3978 (c) certifying a real estate school, course, or instructor;
3979 (d) providing a history of a license, registration, or certification; and
3980 (e) producing a certified copy of an official document, order, or other paper or
3981 transcript; and
3982 (f) other duties required by this chapter.
3983 (2) Notwithstanding Section 13-1-2 , a fee collected under Subsection (1)(c) shall be
3984 deposited in the Real Estate Education, Research, and Recovery Fund.
3985 (3) If a person pays a fee or costs to the division with a negotiable instrument and the
3986 negotiable instrument is not honored for payment:
3987 (a) the transaction for which the payment is submitted is voidable by the division;
3988 (b) the division may reverse the transaction if payment of the applicable fee or costs is
3989 not received in full; and
3990 (c) the person's license, certification, or registration is automatically suspended:
3991 (i) beginning the day on which the payment is due; and
3992 (ii) ending the day on which payment is made in full.
3993 (4) (a) A fee under this chapter is in lieu of all other license fees or assessments that
3994 might otherwise be imposed or charged by the state or any of its political subdivisions upon,
3995 or as a condition of, the privilege of conducting the business regulated by this chapter, except
3996 that a political subdivision within the state may charge a business license fee on a principal
3997 broker if the principal broker maintains a place of business within the jurisdiction of the
3998 political subdivision.
3999 (b) Unless otherwise exempt, a licensee under this chapter is subject to the taxes
4000 imposed under Title 59, Revenue and Taxation.
4001 Section 73. Section 61-2f-106 , which is renumbered from Section 61-2-22 is
4002 renumbered and amended to read:
4003 [
4004 If [
4005 person or circumstance, is held invalid, the remainder of this chapter [
4006
4007 this chapter are severable.
4008 Section 74. Section 61-2f-201 , which is renumbered from Section 61-2-1 is
4009 renumbered and amended to read:
4010
4011 [
4012 (1) [
4013 is unlawful for the person to do the following with respect to real estate located in this state:
4014 (a) engage in the business[
4015 (b) act in the capacity of[
4016 (c) advertise[
4017
4018
4019 [
4020
4021
4022
4023 (2) Except as provided in Section 61-2f-202 , an individual is required to be licensed
4024 as a principal broker, associate broker, or a sales agent if the individual performs, offers to
4025 perform, or attempts to perform one act for valuable consideration of:
4026 (a) buying, selling, leasing, managing, or exchanging real estate for another person; or
4027 (b) offering for another person to buy, sell, lease, manage, or exchange real estate.
4028 Section 75. Section 61-2f-202 , which is renumbered from Section 61-2-3 is
4029 renumbered and amended to read:
4030 [
4031 (1) (a) Except as provided in Subsection (1)(b), a license under this chapter is not
4032 required for:
4033 (i) [
4034 in Subsection [
4035 leased by that [
4036 (ii) a regular salaried employee of the owner or lessor of real estate who, with
4037 reference to nonresidential real estate owned or leased by the employer, performs [
4038
4039 61-2f-102 (14)(a) or (b);
4040 (iii) a regular salaried employee of the owner of real estate who performs property
4041 management services with reference to real estate owned by the employer, except that the
4042 employee may only manage [
4043 (iv) [
4044 apartments at which that [
4045 that [
4046 (v) a regular salaried employee of a condominium homeowners' association who
4047 manages real [
4048 condominium homeowners' association, except that the employee may only manage [
4049 real estate for one condominium homeowners' association; and
4050 (vi) a regular salaried employee of a licensed property management company who
4051 performs support services, as prescribed by rule, for the property management company.
4052 (b) Subsection (1)(a) does not exempt from licensing:
4053 (i) an employee engaged in the sale of [
4054 (A) Title 57, Chapter 11, Utah Uniform Land Sales Practices Act; and
4055 (B) Title 57, Chapter 19, Timeshare and Camp Resort Act;
4056 (ii) an employee engaged in the sale of cooperative interests regulated under Title 57,
4057 Chapter 23, Real Estate Cooperative Marketing Act; or
4058 (iii) [
4059 [
4060 application of this chapter, and not for [
4061 (2) A license under this chapter is not required for:
4062 (a) an isolated transaction by [
4063 of attorney from [
4064 (b) services rendered by an attorney in performing the attorney's duties as an attorney;
4065 (c) a receiver, trustee in bankruptcy, administrator, executor, or [
4066 individual acting under order of [
4067 (d) a trustee or employee of a trustee under a deed of trust or a will;
4068 (e) a public utility, officer of a public utility, or regular salaried employee of a public
4069 utility, unless performance of [
4070 [
4071 of real estate or investment in real estate unrelated to the principal business activity of that
4072 public utility;
4073 (f) a regular salaried employee or authorized agent working under the oversight of the
4074 Department of Transportation when performing an act on behalf of the Department of
4075 Transportation in connection with one or more of the following:
4076 (i) the acquisition of real [
4077 (ii) the disposal of real [
4078 (iii) services that constitute property management; or
4079 (iv) the leasing of real [
4080 (g) a regular salaried employee of a county, city, or town when performing an act on
4081 behalf of the county, city, or town:
4082 (i) in accordance with:
4083 (A) if a regular salaried employee of a city or town:
4084 (I) Title 10, Utah Municipal Code; or
4085 (II) Title 11, Cities, Counties, and Local Taxing Units; and
4086 (B) if a regular salaried employee of a county:
4087 (I) Title 11, Cities, Counties, and Local Taxing Units; and
4088 (II) Title 17, Counties; and
4089 (ii) in connection with one or more of the following:
4090 (A) the acquisition of real [
4091 (B) the disposal of real [
4092 (C) services that constitute property management; or
4093 (D) the leasing of real [
4094 (3) A license under this chapter is not required for [
4095 to act as a broker-dealer, agent, or investment adviser under the Utah and federal securities
4096 laws in the sale or the offer for sale of real estate if:
4097 (a) (i) the real estate is a necessary element of a "security" as that term is defined by
4098 the Securities Act of 1933 and the Securities Exchange Act of 1934; and
4099 (ii) the security is registered for sale in accordance with:
4100 (A) [
4101 (B) [
4102 (b) (i) it is a transaction in a security for which a Form D, described in 17 C.F.R. Sec.
4103 239.500, has been filed with the Securities and Exchange Commission pursuant to Regulation
4104 D, Rule 506, 17 C.F.R. Sec. 230.506; and
4105 (ii) the selling agent and the purchaser are not residents of this state.
4106 Section 76. Section 61-2f-203 , which is renumbered from Section 61-2-6 is
4107 renumbered and amended to read:
4108 [
4109 (1) (a) Except as provided in Subsection (5), the commission shall determine the
4110 qualifications and requirements of an applicant for:
4111 (i) a principal broker license;
4112 (ii) an associate broker license; or
4113 (iii) a sales agent license.
4114 (b) The division, with the concurrence of the commission, shall require and pass upon
4115 proof necessary to determine the honesty, integrity, truthfulness, reputation, and competency
4116 of each applicant for an initial license or for renewal of an existing license.
4117 (c) (i) The division, with the concurrence of the commission, shall require an applicant
4118 for:
4119 (A) a sales agent license to complete an approved educational program consisting of
4120 the number of hours designated by rule made by the commission with the concurrence of the
4121 division, except that the rule may not require less than 120 hours; and
4122 (B) an associate broker or a principal broker license to complete an approved
4123 educational program consisting of the number of hours designated by rule made by the
4124 commission with the concurrence of the division, except that the rule may not require less than
4125 120 hours.
4126 (ii) An hour required by this section means 50 minutes of instruction in each 60
4127 minutes.
4128 (iii) The maximum number of program hours available to an individual is [
4129 hours per day.
4130 (d) The division, with the concurrence of the commission, shall require the applicant
4131 to pass an examination approved by the commission covering:
4132 (i) the fundamentals of:
4133 (A) the English language;
4134 (B) arithmetic;
4135 (C) bookkeeping; and
4136 (D) real estate principles and practices;
4137 (ii) the provisions of this chapter;
4138 (iii) the rules established by the commission; and
4139 (iv) any other aspect of Utah real estate license law considered appropriate.
4140 (e) (i) Three years' full-time experience as a [
4141 required before an applicant may apply for, and secure a principal broker or associate broker
4142 license in this state.
4143 (ii) The commission shall establish by rule, made in accordance with Title 63G,
4144 Chapter 3, Utah Administrative Rulemaking Act, the criteria by which the commission will
4145 accept experience or special education in similar fields of business in lieu of the three years'
4146 experience.
4147 (2) (a) The division, with the concurrence of the commission, may require an applicant
4148 to furnish a sworn statement setting forth evidence satisfactory to the division of the
4149 applicant's reputation and competency as set forth by rule.
4150 (b) The division shall require an applicant to provide the applicant's Social Security
4151 number, which is a private record under Subsection 63G-2-302 (1)(h).
4152 (3) (a) [
4153 individual who is not a resident of this state may be licensed in this state if the person
4154 complies with all the provisions of this chapter [
4155 (b) [
4156 an associate broker or sales agent [
4157 (i) complying with all the provisions of this chapter [
4158 (ii) being employed or engaged as an independent contractor by or on behalf of a
4159 [
4160 the principal broker is a resident of this state.
4161 (4) (a) Except as provided in Subsection [
4162 division and commission shall treat an application to be relicensed of an applicant whose real
4163 estate license is revoked as an original application.
4164 (b) In the case of an applicant for a new license as a principal broker or associate
4165 broker, the applicant is not entitled to credit for experience gained before the revocation of a
4166 real estate license.
4167 (5) (a) Notwithstanding Subsection (1), the commission may delegate to the division
4168 the authority to:
4169 (i) review a class or category of applications for initial or renewed licenses;
4170 (ii) determine whether an applicant meets the licensing criteria in Subsection (1); and
4171 (iii) approve or deny a license application without concurrence by the commission.
4172 (b) (i) If the commission delegates to the division the authority to approve or deny an
4173 application without concurrence by the commission and the division denies an application for
4174 licensure, the applicant who is denied licensure may petition the commission for review of the
4175 denial of licensure.
4176 (ii) An applicant who is denied licensure pursuant to this Subsection (5) may seek
4177 agency review by the executive director only after the commission has reviewed the division's
4178 denial of the applicant's application.
4179 Section 77. Section 61-2f-204 , which is renumbered from Section 61-2-9 is
4180 renumbered and amended to read:
4181 [
4182 procedures.
4183 (1) (a) Upon filing an application for [
4184
4185 pay a nonrefundable fee as determined by the commission with the concurrence of the division
4186 under Section 63J-1-504 for admission to the examination.
4187 (b) [
4188 license shall pay a nonrefundable fee as determined by the commission with the concurrence
4189 of the division under Section 63J-1-504 for issuance of an initial license or license renewal.
4190 (c) A license issued under this Subsection (1) shall be issued for a period of not less
4191 than two years as determined by the division with the concurrence of the commission.
4192 (d) (i) Any of the following applicants shall comply with this Subsection (1)(d):
4193 (A) a new sales agent applicant; [
4194 (B) a principal broker applicant[
4195 (C) an associate broker applicant.
4196 (ii) An applicant described in this Subsection (1)(d) shall:
4197 (A) submit fingerprint cards in a form acceptable to the division at the time the license
4198 application is filed; and
4199 (B) consent to a criminal background check by the Utah Bureau of Criminal
4200 Identification and the Federal Bureau of Investigation regarding the application.
4201 (iii) The division shall request the Department of Public Safety to complete a Federal
4202 Bureau of Investigation criminal background check for each applicant described in this
4203 Subsection (1)(d) through the national criminal history system or any successor system.
4204 (iv) The applicant shall pay the cost of the criminal background check and the
4205 fingerprinting.
4206 (v) [
4207 background check [
4208 (e) (i) A license issued under Subsection (1)(d) is conditional, pending completion of
4209 the criminal background check. [
4210 (ii) A license is immediately and automatically revoked if the criminal background
4211 check discloses the applicant fails to accurately disclose a criminal history[
4212
4213 (A) the real estate industry;
4214 (B) fraud;
4215 (C) misrepresentation; or
4216 (D) deceit.
4217 (iii) If a criminal background check discloses that an applicant fails to accurately
4218 disclose a criminal history other than one described in Subsection (1)(e)(ii), the division:
4219 (A) shall review the application; and
4220 (B) in accordance with rules made by the division pursuant to Title 63G, Chapter 3,
4221 Utah Administrative Rulemaking Act, may:
4222 (I) place a condition on a license;
4223 (II) place a restriction on a license;
4224 (III) revoke a license; or
4225 (IV) refer the application to the commission for a decision.
4226 [
4227 Subsection (1)(e)[
4228 Subsection (1)(e)(iii) may have a [
4229 challenge the [
4230 63G, Chapter 4, Administrative Procedures Act.
4231 [
4232 presiding officer in a [
4233 (A) the division; or
4234 (B) the division with the concurrence of the commission.
4235 [
4236 under this Subsection (1)(e) will be granted shall be made by the presiding officer.
4237 [
4238 may be granted only if:
4239 (A) the criminal history upon which the division based the revocation:
4240 (I) did not occur; or
4241 (II) is the criminal history of another person;
4242 (B) (I) the revocation is based on a failure to accurately disclose a criminal history;
4243 and
4244 (II) the applicant has a reasonable good faith belief at the time of application that there
4245 was no criminal history to be disclosed; or
4246 (C) the division fails to follow the prescribed procedure for the revocation.
4247 [
4248 upheld after a [
4249 license until at least 12 months after the day on which the license is revoked.
4250 (2) (a) (i) A license expires if it is not renewed on or before its expiration date.
4251 (ii) As a condition of renewal, an active licensee shall demonstrate competence by
4252 completing 18 hours of continuing education within a two-year renewal period subject to rules
4253 made by the commission, with the concurrence of the division.
4254 (iii) In making a rule described in Subsection (2)(c)(ii), the division and commission
4255 shall consider:
4256 (A) evaluating continuing education on the basis of competency, rather than course
4257 time;
4258 (B) allowing completion of courses in a significant variety of topic areas that the
4259 division and commission determine are valuable in assisting an individual licensed under this
4260 chapter to increase the individual's competency; and
4261 (C) allowing completion of courses that will increase a licensee's professional
4262 competency in the area of practice of the licensee.
4263 [
4264
4265 [
4266 [
4267 [
4268 [
4269 [
4270 credit to a licensee [
4271 Subsection (2)(a) for a reasonable period of time[
4272 including:
4273 [
4274 [
4275 individual's government service during which the individual spends a substantial time
4276 addressing real estate issues[
4277 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
4278 (b) For a period of 30 days after the expiration date of a license, the license may be
4279 reinstated upon:
4280 (i) payment of a renewal fee and a late fee determined by the commission with the
4281 concurrence of the division under Section 63J-1-504 ; and
4282 (ii) providing proof acceptable to the division and the commission of the licensee
4283 having:
4284 (A) completed the hours of education required by Subsection (2)(a); or
4285 (B) demonstrated competence as required under Subsection (2)(a).
4286 (c) After the 30-day period described in Subsection (2)(b), and until six months after
4287 the expiration date, the license may be reinstated by:
4288 (i) paying a renewal fee and a late fee determined by the commission with the
4289 concurrence of the division under Section 63J-1-504 ;
4290 (ii) providing to the division proof of satisfactory completion of [
4291 continuing education:
4292 (A) in addition to the requirements for a timely renewal; and
4293 (B) on a subject determined by the commission by rule made in accordance with Title
4294 63G, Chapter 3, Utah Administrative Rulemaking Act; and
4295 (iii) providing proof acceptable to the division and the commission of the licensee
4296 having:
4297 (A) completed the hours of education required under Subsection (2)(a); or
4298 (B) demonstrated competence as required under Subsection (2)(a).
4299 (d) After the six-month period described in Subsection (2)(c), and until one year after
4300 the expiration date, the license may be reinstated by:
4301 (i) paying a renewal fee and a late fee determined by the commission with the
4302 concurrence of the division under Section 63J-1-504 ;
4303 (ii) providing to the division proof of satisfactory completion of 24 hours of
4304 continuing education:
4305 (A) in addition to the requirements for a timely renewal; and
4306 (B) on a subject determined by the commission by rule made in accordance with Title
4307 63G, Chapter 3, Utah Administrative Rulemaking Act; and
4308 (iii) providing proof acceptable to the division and the commission of the licensee
4309 having:
4310 (A) completed the hours of education required by Subsection (2)(a); or
4311 (B) demonstrated competence as required under Subsection (2)(a).
4312 (e) The division shall relicense a person who does not renew that person's license
4313 within one year as prescribed for an original application.
4314 (f) Notwithstanding Subsection (2)(a), the division may extend the term of a license
4315 that would expire under Subsection (2)(a) except for the extension if:
4316 (i) the person complies with the requirements of this section to renew the license; and
4317 (ii) at the time of the extension, there is pending under this chapter:
4318 (A) the application for renewal of the license; or
4319 (B) a disciplinary action.
4320 (3) (a) As a condition for the activation of an inactive license that was in an inactive
4321 status at the time of the licensee's most recent renewal, the licensee shall supply the division
4322 with proof of:
4323 (i) successful completion of the respective sales agent or principal broker licensing
4324 examination within six months prior to applying to activate the license; or
4325 (ii) the successful completion of the hours of continuing education that the licensee
4326 would have been required to complete under Subsection (2)(a) if the license had been on
4327 active status at the time of the licensee's most recent renewal.
4328 (b) The commission may, in accordance with Title 63G, Chapter 3, Utah
4329 Administrative Rulemaking Act, establish by rule:
4330 (i) the nature or type of continuing education required for reactivation of a license; and
4331 (ii) how long before reactivation the continuing education must be completed.
4332 [
4333
4334
4335 [
4336 [
4337 [
4338
4339 [
4340
4341
4342 [
4343 [
4344 [
4345 [
4346
4347
4348 [
4349 [
4350
4351
4352
4353 [
4354
4355
4356
4357
4358
4359
4360 [
4361
4362 Section 78. Section 61-2f-205 , which is renumbered from Section 61-2-7 is
4363 renumbered and amended to read:
4364 [
4365 (1) The division shall issue to [
4366 (a) the name and address of the licensee[
4367 (b) the seal of the state [
4368 and
4369 (c) any other matter prescribed by the division [
4370 (2) The division shall send the license described in Subsection (1) to the licensee at the
4371 address furnished by the licensee. [
4372
4373 (3) A principal broker shall keep the license of the principal broker and the license of
4374 any associate broker or sales agent affiliated with the principal broker in the office in which
4375 the licensee works to be made available on request.
4376 Section 79. Section 61-2f-206 is enacted to read:
4377 61-2f-206. Registration of entity or branch office -- Certification of education
4378 providers and courses -- Specialized licenses.
4379 (1) (a) An entity may not engage in an activity described in Section 61-2f-201 , unless
4380 it is registered with the division.
4381 (b) To register with the division under this Subsection (1), an entity shall submit to the
4382 division:
4383 (i) an application in a form required by the division;
4384 (ii) evidence of an affiliation with a principal broker;
4385 (iii) evidence that the entity is registered and in good standing with the Division of
4386 Corporations and Commercial Code; and
4387 (iv) a registration fee established by the commission with the concurrence of the
4388 division under Section 63J-1-504 .
4389 (2) (a) A principal broker shall register with the division each of the principal broker's
4390 branch offices.
4391 (b) To register a branch office with the division under this Subsection (2), a principal
4392 broker shall submit to the division:
4393 (i) an application in a form required by the division; and
4394 (ii) a registration fee established by the commission with the concurrence of the
4395 division under Section 63J-1-504 .
4396 (3) (a) In accordance with rules made by the commission, the division shall certify:
4397 (i) a real estate school;
4398 (ii) a course provider; or
4399 (iii) an instructor.
4400 (b) In accordance with rules made by the commission, and with the concurrence of the
4401 commission, the division shall certify a continuing education course that is required under this
4402 section.
4403 (4) (a) Except as provided by rule, a principal broker may not be responsible for more
4404 than one registered entity at the same time.
4405 (b) (i) In addition to issuing a principal broker license, associate broker license, or
4406 sales agent license authorizing the performance of an act set forth in Section 61-2f-201 , the
4407 division may issue a specialized sales license or specialized property management license with
4408 the scope of practice limited to the specialty.
4409 (ii) An individual may hold a specialized license in addition to a license as a principal
4410 broker, associate broker, or a sales agent.
4411 (iii) The commission may adopt rules pursuant to Title 63G, Chapter 3, Utah
4412 Administrative Rulemaking Act, for the administration of this Subsection (4), including:
4413 (A) prelicensing and postlicensing education requirements;
4414 (B) examination requirements;
4415 (C) affiliation with real estate brokerages or property management companies; and
4416 (D) other licensing procedures.
4417 Section 80. Section 61-2f-207 , which is renumbered from Section 61-2-7.1 is
4418 renumbered and amended to read:
4419 [
4420 (1) An applicant, licensee, registrant, or certificate holder shall send the division a
4421 signed statement in the form required by the division notifying the division within 10 business
4422 days of any change of:
4423 (a) principal broker;
4424 (b) principal business location;
4425 (c) mailing address;
4426 (d) home street address;
4427 (e) an individual's name; or
4428 (f) business name.
4429 (2) The division may charge a fee established by the commission with the concurrence
4430 of the division in accordance with Section 63J-1-504 for processing any notification of change
4431 submitted by an applicant, licensee, registrant, or certificate holder.
4432 (3) (a) When providing the division a business location or home street address, a
4433 physical location or street address must be provided.
4434 (b) When providing a mailing address, an applicant, licensee, registrant, or certificate
4435 holder may provide a post office box or other mail drop location.
4436 (4) Failure to notify the division of a change described in Subsection (1) is separate
4437 grounds for disciplinary action against [
4438 holder.
4439 (5) An applicant, licensee, registrant, or certificate holder is considered to have
4440 received any notification that has been sent to the last address furnished to the division by the
4441 applicant, licensee, registrant, or certificate holder.
4442 Section 81. Section 61-2f-301 , which is renumbered from Section 61-2-7.2 is
4443 renumbered and amended to read:
4444
4445 [
4446 A licensee shall notify the division of the following by sending the division a signed
4447 statement within 10 business days of:
4448 (1) (a) a conviction of a criminal offense;
4449 (b) the entry of a plea in abeyance to a criminal offense; or
4450 (c) the potential resolution of a criminal case by:
4451 (i) a diversion agreement; or
4452 (ii) [
4453 for a period of time; [
4454 (2) filing a personal or brokerage bankruptcy[
4455 (3) the suspension, revocation, surrender, cancellation, or denial of a license or
4456 registration of the licensee that is necessary to engage in an occupation or profession,
4457 regardless of whether the license or registration is issued by this state or another jurisdiction;
4458 or
4459 (4) the entry of a cease and desist order or a temporary or permanent injunction:
4460 (a) against the licensee by a court or administrative agency; and
4461 (b) on the basis of:
4462 (i) conduct or a practice involving the business of real estate; or
4463 (ii) conduct involving fraud, misrepresentation, or deceit.
4464 Section 82. Section 61-2f-302 , which is renumbered from Section 61-2-10 is
4465 renumbered and amended to read:
4466 [
4467 [
4468
4469
4470
4471 [
4472
4473
4474 [
4475
4476 [
4477 [
4478
4479 [
4480 [
4481 [
4482
4483 [
4484
4485 [
4486
4487 [
4488
4489
4490
4491
4492 (1) An individual who is not a principal broker may not engage in an act described in
4493 Section 61-2f-201 unless the individual is affiliated with a principal broker as:
4494 (a) an associate broker; or
4495 (b) a sales agent.
4496 (2) (a) An inactive associate broker or sales agent may not conduct a real estate
4497 transaction until the inactive associate broker or sales agent becomes affiliated with a
4498 [
4499 (b) An inactive principal broker may not conduct a real estate transaction until the
4500 principal broker's license is activated with the division.
4501 (3) A sales agent or associate broker may not affiliate with more than one principal
4502 broker at the same time.
4503 [
4504
4505 [
4506
4507
4508
4509 [
4510
4511 [
4512
4513 [
4514 [
4515 [
4516 [
4517 [
4518 sales agent or associate broker for a different [
4519 (5) An owner, purchaser, lessor, or lessee who engages the services of a principal
4520 broker may designate which sales agents or associate brokers affiliated with that principal
4521 broker will also represent that owner, purchaser, lessor, or lessee in the purchase, sale, lease, or
4522 exchange of real estate, or in exercising an option relating to real estate.
4523 Section 83. Section 61-2f-303 , which is renumbered from Section 61-2-25 is
4524 renumbered and amended to read:
4525 [
4526 principal broker as independent contractors or employees -- Presumption.
4527 A sales agent or associate broker may be affiliated with a [
4528
4529 between sales agent or associate broker and principal broker is presumed to be an independent
4530 contractor relationship unless there is clear and convincing evidence that the relationship was
4531 intended by the parties to be an employer employee relationship.
4532 Section 84. Section 61-2f-304 , which is renumbered from Section 61-2-8 is
4533 renumbered and amended to read:
4534 [
4535 principal broker -- Notice.
4536 [
4537
4538 later than three days from the day on which the principal broker terminates the associate
4539 broker or sales agent:
4540 (a) provide the division a signed statement notifying the division of the [
4541
4542 (b) send to the last-known residence address of that associate broker or sales agent
4543 [
4544
4545 of the associate broker or sales agent.
4546 (2) An associate broker or sales agent [
4547 this chapter, directly or indirectly, from and after the date of receipt of the termination notice
4548 by the division until [
4549 the associate broker or sales agent is affiliated with a principal broker.
4550 Section 85. Section 61-2f-305 is enacted to read:
4551 61-2f-305. Restrictions on commissions.
4552 (1) Except as provided in Subsection (2), an associate broker or sales agent may not
4553 accept valuable consideration for the performance of an act specified in this chapter from a
4554 person except the principal broker with whom the associate broker or sales agent is affiliated.
4555 (2) An associate broker or sales agent may receive valuable consideration for the
4556 performance of an act specified in this chapter from a person other than the principal broker
4557 with whom the associate broker or sales agent is affiliated if:
4558 (a) the valuable consideration is paid with a payment instrument prepared by a title
4559 insurance agent;
4560 (b) the title insurance agent provides the payment instrument to the principal broker;
4561 (c) the title insurance agent complies with the written instructions of the principal
4562 broker:
4563 (i) in preparing the payment instrument; and
4564 (ii) delivering the payment instrument to the principal broker; and
4565 (d) the principal broker directly delivers the payment instrument to the associate
4566 broker or sales agent.
4567 (3) The commission, with the concurrence of the division, shall make rules in
4568 accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
4569 (a) defining what constitutes a "payment instrument" for purposes of this section; or
4570 (b) the form and contents of the written instructions required by Subsection (2),
4571 including providing that the contents of the written instructions indicate that the payment
4572 instrument process is an assignment to the associate broker or sales agent by the principal
4573 broker of a portion of the consideration the title insurance agent is obligated to pay the
4574 principal broker.
4575 Section 86. Section 61-2f-306 , which is renumbered from Section 61-2-20 is
4576 renumbered and amended to read:
4577 [
4578 forms or documents.
4579 (1) Except as provided in Subsection (2), a real estate licensee may fill out only those
4580 legal forms approved by the commission and the attorney general, and those forms provided
4581 by statute.
4582 (2) (a) (i) A principal broker may fill out any documents associated with the closing of
4583 a real estate transaction.
4584 (ii) A branch broker or associate broker may fill out any documents associated with
4585 the closing of a real estate transaction if designated to fill out the documents by the principal
4586 broker with whom the branch broker or associate broker is affiliated.
4587 (b) A real estate licensee may fill out real estate forms prepared by legal counsel of the
4588 buyer, seller, lessor, or lessee.
4589 (c) If the commission and the attorney general have not approved a specific form for
4590 the transaction, a principal broker, associate broker, or sales agent may fill out real estate
4591 forms prepared by any legal counsel, including legal counsel retained by the brokerage to
4592 develop these forms.
4593 (3) The commission may by rule, made in accordance with Title 63G, Chapter 3, Utah
4594 Administrative Rulemaking Act, provide a process for the approval of a legal form under this
4595 section by the commission and the attorney general.
4596 Section 87. Section 61-2f-307 , which is renumbered from Section 61-2-26 is
4597 renumbered and amended to read:
4598 [
4599 fractionalized long-term estate -- Disclosures -- Management agreement.
4600 (1) (a) A licensee or certificate holder under this chapter who sells or offers to sell an
4601 undivided fractionalized long-term estate shall comply with the disclosure requirements
4602 imposed by rules made by the commission under this section.
4603 (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
4604 the commission shall make rules as to the timing, form, and substance of disclosures required
4605 to be made by a licensee or certificate holder under this section.
4606 (2) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
4607 the commission shall make rules imposing requirements for a management agreement related
4608 to an undivided fractionalized long-term estate that makes the offer or sale of the undivided
4609 fractionalized long-term estate treated as a real estate transaction and not treated as an offer or
4610 sale of a security under Chapter 1, Utah Uniform Securities Act.
4611 (3) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
4612 the commission shall make rules establishing:
4613 (a) the disclosures required in the sale or offer of an undivided fractionalized
4614 long-term estate that is subject to a master lease;
4615 (b) requirements for the management of a master lease on an undivided fractionalized
4616 long-term estate; and
4617 (c) the requirements on the structure of a master lease on an undivided fractionalized
4618 long-term estate.
4619 Section 88. Section 61-2f-308 , which is renumbered from Section 61-2-27 is
4620 renumbered and amended to read:
4621 [
4622 (1) As used in this section:
4623 (a) "Client" means a person who makes an exclusive brokerage agreement with a
4624 principal broker under Subsection (1)(c).
4625 (b) "Closed" means that:
4626 (i) [
4627 (ii) [
4628 is paid in the form of collected or cleared funds;
4629 (iii) the proceeds of any new loan are delivered by the lender to the seller; and
4630 (iv) [
4631 the county in which the [
4632 (c) "Exclusive brokerage agreement" means a written agreement between a client and
4633 a principal broker:
4634 (i) (A) to list for sale, lease, or exchange:
4635 (I) real estate;
4636 (II) an option on real estate; or
4637 (III) an improvement on real estate; or
4638 (B) for representation in the purchase, lease, or exchange of:
4639 (I) real estate;
4640 (II) an option on real estate; or
4641 (III) an improvement on real estate;
4642 (ii) that gives the principal broker the sole right to act as the agent or representative of
4643 the client for the purchase, sale, lease, or exchange of:
4644 (A) real estate;
4645 (B) an option on real estate; or
4646 (C) an improvement on real estate; and
4647 (iii) that gives the principal broker the expectation of receiving valuable consideration
4648 in exchange for the principal broker's services.
4649 (2) (a) Except as provided in Subsection (2)(b), a principal broker subject to an
4650 exclusive brokerage agreement shall:
4651 (i) accept delivery of and present to the client offers and counteroffers to buy, lease, or
4652 exchange the client's [
4653 (ii) assist the client in developing, communicating, and presenting offers,
4654 counteroffers, and notices; and
4655 (iii) answer any question the client has concerning:
4656 (A) an offer;
4657 (B) a counteroffer;
4658 (C) a notice; and
4659 (D) a contingency.
4660 (b) A principal broker subject to an exclusive brokerage agreement need not comply
4661 with Subsection (2)(a) after:
4662 (i) (A) an agreement for the sale, lease, or exchange of the real estate, option on real
4663 estate, or improvement on real estate is[
4664 (B) [
4665 waived; and
4666 (C) the sale, lease, or exchange is closed; or
4667 (ii) the exclusive brokerage agreement expires or terminates.
4668 (3) A principal broker who violates this section is subject to [
4669 Sections 61-2f-404 and 61-2f-405 .
4670 Section 89. Section 61-2f-401 , which is renumbered from Section 61-2-11 is
4671 renumbered and amended to read:
4672
4673 [
4674 The following acts are unlawful for a person required to be licensed under this chapter:
4675 (1) (a) making a substantial misrepresentation;
4676 (b) making an intentional misrepresentation;
4677 (c) pursuing a continued and flagrant course of misrepresentation;
4678 (d) making a false representation or promise through an agent, sales agent, advertising,
4679 or otherwise; or
4680 [
4681 persuade, or induce;
4682 [
4683
4684 [
4685 of all parties;
4686 [
4687 with a [
4688 (b) representing or attempting to represent a principal broker other than the principal
4689 broker with whom the person is affiliated; or
4690 (c) representing as sales agent or having a contractual relationship similar to that of
4691 sales agent with a person other than a [
4692 [
4693
4694
4695 (b) commingling [
4696 person's own [
4697 (c) diverting [
4698 for which [
4699 [
4700 commission, to a person not licensed under this chapter, except that valuable consideration
4701 may be shared:
4702 (a) with a [
4703 (b) as provided under:
4704 (i) Title 16, Chapter 10a, Utah Revised Business Corporation Act;
4705 (ii) Title 16, Chapter 11, Professional Corporation Act; or
4706 (iii) Title 48, Chapter 2c, Utah Revised Limited Liability Company Act;
4707 [
4708 broker, or sales agent in such manner as to safeguard the interests of the public;
4709 [
4710
4711 [
4712 each transaction, including:
4713 (a) the names of buyers and sellers or lessees and lessors;
4714 (b) the identification of [
4715 (c) the sale or rental price;
4716 (d) [
4717 (e) agreements or instructions from buyers and sellers or lessees and lessors; and
4718 (f) any other information required by rule;
4719 [
4720 real estate, whether the purchase, sale, or rental is made for that person or for an undisclosed
4721 principal;
4722 [
4723 (10) being convicted of a criminal offense involving moral turpitude within five years
4724 of the most recent application[
4725 (a) regardless of whether the criminal offense is related to real estate; and
4726 (b) including:
4727 [
4728 [
4729 [
4730 false, misleading, or deceptive manner;
4731 [
4732 failing to exercise reasonable supervision over the activities of the principal broker's or branch
4733 manager's [
4734 [
4735 (a) this chapter;
4736 (b) an order of the commission; or
4737 (c) the rules adopted by the commission and the division;
4738 [
4739 a real estate transaction;
4740 [
4741 [
4742 [
4743
4744 (17) having one of the following suspended, revoked, surrendered, or cancelled on the
4745 basis of misconduct in a professional capacity that relates to character, honesty, integrity, or
4746 truthfulness:
4747 (a) a real estate license, registration, or certificate issued by another jurisdiction; or
4748 (b) another [
4749 occupation or profession issued by this state or another jurisdiction;
4750 [
4751 authorized under this chapter, including:
4752 (a) failing to respond to a subpoena;
4753 (b) withholding evidence; or
4754 (c) failing to produce documents or records;
4755 [
4756 31A-2-402 :
4757 (a) providing a title insurance product or service without the approval required by
4758 Section 31A-2-405 ; or
4759 (b) knowingly providing false or misleading information in the statement required by
4760 Subsection 31A-2-405 (2); or
4761 [
4762 and a sales agent or associate broker as evidenced by a final judgment of a court.
4763 Section 90. Section 61-2f-402 , which is renumbered from Section 61-2-11.5 is
4764 renumbered and amended to read:
4765 [
4766 (1) The division may make [
4767 division considers necessary to determine whether [
4768 is about to violate this chapter or any rule or order under this chapter.
4769 (2) To aid in the enforcement of this chapter or in the prescribing of rules and forms
4770 under this chapter, the division may require or permit [
4771 writing, under oath or otherwise as to [
4772 to be investigated.
4773 (3) For the purpose of the investigation described in Subsection (1), the division or
4774 [
4775 (a) administer an oath or affirmation;
4776 (b) subpoena witnesses and evidence;
4777 (c) take evidence;
4778 (d) require the production of a book, paper, contract, record, other document, or
4779 information relevant to the investigation; and
4780 (e) serve a subpoena by certified mail.
4781 (4) (a) If a person is found to have violated this chapter or a rule made under this
4782 chapter, the person shall pay the costs incurred by the division to copy a book, paper, contract,
4783 document, or record required under this chapter, including the costs incurred to copy an
4784 electronic book, paper, contract, document, or record in a universally readable format.
4785 (b) If a person fails to pay the costs described in Subsection (4)(a) when due, the
4786 person's license, certification, or registration is automatically suspended:
4787 (i) beginning the day on which the payment of costs is due; and
4788 (ii) ending the day on which the costs are paid.
4789 Section 91. Section 61-2f-403 , which is renumbered from Section 61-2-24 is
4790 renumbered and amended to read:
4791 [
4792 (1) The division may audit principal brokers' trust accounts or other accounts in which
4793 a licensee maintains trust [
4794 the opinion of the division, gross mismanagement, commingling, or misuse of [
4795 the division, with the concurrence of the commission, may order a complete audit of the
4796 account by a certified public accountant at the licensee's expense, or take other action in
4797 accordance with Section [
4798 (2) The licensee may obtain agency review by the executive director or judicial review
4799 of any division order.
4800 (3) (a) If it appears that a person has grossly mismanaged, commingled, or otherwise
4801 misused trust [
4802 may bring an action:
4803 (i) in the district court of the district where:
4804 (A) the person resides [
4805 (B) the person maintains a place of business[
4806 (C) the act or practice occurred or is about to occur[
4807 (ii) to enjoin the [
4808 chapter or any rule or order under this chapter.
4809 (b) Upon a proper showing, [
4810 restraining order, and may appoint a receiver or conservator. The division is not required to
4811 post a bond in any court proceeding.
4812 Section 92. Section 61-2f-404 , which is renumbered from Section 61-2-12 is
4813 renumbered and amended to read:
4814 [
4815 (1) (a) On the basis of a violation of this chapter, the commission with the concurrence
4816 of the director, may issue an order:
4817 (i) imposing an educational requirement;
4818 (ii) imposing a civil penalty not to exceed the greater of:
4819 (A) [
4820 (B) the amount of any gain or economic benefit derived from each violation;
4821 (iii) taking any of the following actions related to a license, registration, or certificate:
4822 (A) revoking;
4823 (B) suspending;
4824 (C) placing on probation;
4825 (D) denying the renewal, reinstatement, or application for an original license,
4826 registration, or certificate; or
4827 (E) in the case of denial or revocation of a license, registration, or certificate, setting a
4828 waiting period for an applicant to apply for a license, registration, or certificate under this title;
4829 (iv) issuing a cease and desist order;
4830 (v) modifying an action described in Subsections (1)(a)(i) through (iv) if the
4831 commission finds that the person complies with court ordered restitution; or
4832 (vi) doing any combination of Subsections (1)(a)(i) through (v).
4833 (b) (i) If the commission with the concurrence of the director issues an order that
4834 orders a fine or educational requirements as part of a disciplinary action against a person,
4835 including a stipulation and order, the commission shall state in the order the deadline by
4836 which the person shall comply with the fine or educational requirements.
4837 (ii) If a person fails to comply by the stated deadline:
4838 (A) the person's license, registration, or certificate is automatically suspended:
4839 (I) beginning the day specified in the order as the deadline for compliance; and
4840 (II) ending the day on which the person complies in full with the order; and
4841 (B) if the person fails to pay a fine required by an order, the division may begin a
4842 collection process:
4843 (I) established by the division, with the concurrence of the commission, by rule made
4844 in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act; and
4845 (II) subject to Title 63A, Chapter 8, Office of State Debt Collection.
4846 [
4847 shall inform the principal broker with whom the licensee is affiliated of the charge and of the
4848 time and place of any hearing.
4849 (2) (a) An applicant, certificate holder, licensee, registrant, or person aggrieved,
4850 including the complainant, may obtain agency review by the executive director and judicial
4851 review of any adverse ruling, order, or decision of the division.
4852 (b) If an applicant, certificate holder, registrant, or licensee prevails in the appeal and
4853 the court finds that the state action was undertaken without substantial justification, the court
4854 may award reasonable litigation expenses to the applicant, certificate holder, registrant, or
4855 licensee as provided under Title 78B, Chapter 8, Part 5, Small Business Equal Access to
4856 Justice Act.
4857 (c) (i) An order, ruling, or decision of the division shall take effect and become
4858 operative 30 days after the service of the order, ruling, or decision unless otherwise provided
4859 in the order.
4860 (ii) If an appeal is taken by a licensee, registrant, or certificate holder, the division may
4861 stay enforcement of an order, ruling, or decision in accordance with Section 63G-4-405 .
4862 (iii) An appeal is governed by the Utah Rules of Appellate Procedure.
4863 (3) The commission and the director shall comply with the procedures and
4864 requirements of Title 63G, Chapter 4, Administrative Procedures Act, in an adjudicative
4865 proceeding.
4866 Section 93. Section 61-2f-405 , which is renumbered from Section 61-2-17 is
4867 renumbered and amended to read:
4868 [
4869 penalties.
4870 (1) (a) An individual required to be licensed under this chapter who violates this
4871 chapter, in addition to being subject to a license sanction or a fine ordered by the commission,
4872 is, upon conviction of a first violation, guilty of a class A misdemeanor.
4873 (b) For a conviction under this Subsection (1)[
4874 not to exceed six months.
4875 [
4876
4877 (2) (a) Upon conviction of a second or subsequent violation, an individual is guilty of
4878 a third degree felony.
4879 (b) Imprisonment for a conviction under this Subsection (2)(a) shall be for a term not
4880 to exceed two years.
4881 [
4882
4883 (3) An officer or agent of a corporation, [
4884 association, or an individual in a similar position of another type of entity who personally
4885 participates in or is an accessory to any violation of this chapter by the [
4886
4887 (4) If a person receives money or its equivalent, as commission, compensation, or
4888 profit by or in consequence of a violation of this chapter, that person is liable for an additional
4889 penalty of not less than the amount of the money received and not more than three times the
4890 amount of money received, as may be determined by the court. This penalty may be sued for
4891 in any court of competent jurisdiction, and recovered by any person aggrieved for the person's
4892 own use and benefit.
4893 (5) A fine imposed by the commission and the director under this chapter shall,
4894 notwithstanding Section 13-1-2 , be deposited into the Real Estate Education, Research, and
4895 Recovery Fund to be used in a manner consistent with the requirements of [
4896 Real Estate Education, Research, and Recovery Fund Act.
4897 Section 94. Section 61-2f-406 , which is renumbered from Section 61-2-13 is
4898 renumbered and amended to read:
4899 [
4900 Automatic inactivation of affiliated associate brokers and sales agents licenses.
4901 (1) (a) An unlawful act or violation of this chapter committed by a person listed in
4902 Subsection (1)(b) is cause for:
4903 (i) the revocation, suspension, or probation of a principal broker's license; or
4904 (ii) the imposition of a fine against the principal broker in an amount not to exceed
4905 [
4906 (b) Subsection (1)(a) applies to an act or violation by any of the following:
4907 (i) a [
4908 broker;
4909 (ii) a [
4910 by or on behalf of a [
4911 (iii) an employee, officer, or member of a [
4912 (2) (a) The revocation or suspension of a principal broker license automatically
4913 inactivates an associate broker or sales agent license granted to [
4914 reason of that [
4915 revoked or suspended, pending a change of principal broker affiliation.
4916 (b) A principal broker shall, before the effective date of a suspension or revocation of
4917 the principal broker's license, notify in writing every licensee affiliated with the principal
4918 broker of the revocation or suspension of the principal broker license.
4919 Section 95. Section 61-2f-407 , which is renumbered from Section 61-2-21 is
4920 renumbered and amended to read:
4921 [
4922 (1) (a) The director shall issue and serve upon a person an order directing that person
4923 to cease and desist from an act if:
4924 (i) the director has reason to believe that the person has been engaging, is about to
4925 engage, or is engaging in the act constituting a violation of this chapter; and
4926 (ii) it appears to the director that it would be in the public interest to stop the act.
4927 (b) Within 10 days after receiving the order, the person upon whom the order is served
4928 may request a hearing.
4929 (c) Pending a hearing requested under Subsection (1)(b), a cease and desist order shall
4930 remain in effect.
4931 (d) If a request for a hearing is made, the division shall follow the procedures and
4932 requirements of Title 63G, Chapter 4, Administrative Procedures Act.
4933 (2) (a) After a hearing requested under Subsection (1), if the commission and the
4934 director agree that an act of the person violates this chapter, the director:
4935 (i) shall issue an order making the order issued under Subsection (1) permanent; and
4936 (ii) may impose another disciplinary action under Section [
4937 (b) The director shall file suit in the name of the Department of Commerce and the
4938 Division of Real Estate, in the district court in the county in which an act described in
4939 Subsection (1) occurs or where the person resides or carries on business, to enjoin and restrain
4940 the person from violating this chapter if:
4941 (i) (A) a hearing is not requested under Subsection (1); and
4942 (B) the person fails to cease the act described in Subsection (1); or
4943 (ii) after discontinuing the act described in Subsection (1), the person again
4944 commences the act.
4945 (c) A district court of this state has jurisdiction of an action brought under this section.
4946 (d) Upon a proper showing in an action brought under this section or upon a
4947 conviction under Section 76-6-1203 , the court may:
4948 (i) issue a permanent or temporary, prohibitory or mandatory injunction;
4949 (ii) issue a restraining order or writ of mandamus;
4950 (iii) enter a declaratory judgment;
4951 (iv) appoint a receiver or conservator for the defendant or the defendant's assets;
4952 (v) order disgorgement;
4953 (vi) order rescission;
4954 (vii) impose a civil penalty not to exceed the greater of:
4955 (A) [
4956 (B) the amount of any gain or economic benefit derived from a violation; and
4957 (viii) enter any other relief the court considers just.
4958 (e) The court may not require the division to post a bond in an action brought under
4959 this Subsection (2).
4960 (3) [
4961
4962 (4) A remedy or action provided in this section does not limit, interfere with, or
4963 prevent the prosecution of another remedy or action, including a criminal proceeding.
4964 Section 96. Section 61-2f-408 , which is renumbered from Section 61-2-13.5 is
4965 renumbered and amended to read:
4966 [
4967 The division shall promptly withhold, suspend, restrict, or reinstate the use of a license
4968 issued under this chapter if so ordered by a court.
4969 Section 97. Section 61-2f-409 , which is renumbered from Section 61-2-18 is
4970 renumbered and amended to read:
4971 [
4972 (1) [
4973 recovery of a commission, fee, or compensation for any act done or service rendered which is
4974 prohibited under this chapter to other than [
4975 [
4976 (2) [
4977 own name for the recovery of a fee, commission, or compensation for services as a sales agent
4978 or associate broker unless the action is against the principal broker with whom [
4979 agent or associate broker is or was [
4980 (b) An action for the recovery of a fee, commission, or other compensation may only
4981 be instituted and brought by the principal broker with whom [
4982 broker is affiliated.
4983 Section 98. Section 61-2f-501 , which is renumbered from Section 61-2a-1 is
4984 renumbered and amended to read:
4985
4986 [
4987 This [
4988 Education, Research, and Recovery Fund Act."
4989 Section 99. Section 61-2f-502 , which is renumbered from Section 61-2a-2 is
4990 renumbered and amended to read:
4991 [
4992 [
4993 [
4994
4995
4996 [
4997
4998
4999 [
5000
5001 [
5002 [
5003 [
5004 For purposes of this part:
5005 (1) "Civil judgment" means a judgment in a civil action that:
5006 (a) is awarded in an action brought against a real estate licensee on the basis of fraud,
5007 misrepresentation, or deceit in a real estate transaction; and
5008 (b) awards actual damages.
5009 (2) "Criminal restitution judgment" means a judgment that, in accordance with the
5010 Utah Code of Criminal Procedure, orders criminal restitution to a person and against a real
5011 estate licensee for a criminal offense involving fraud, misrepresentation, or deceit in a real
5012 estate transaction.
5013 (3) "Final judgment" means one of the following judgments upon termination of the
5014 proceedings related to the judgment, including appeals:
5015 (a) a civil judgment; or
5016 (b) a criminal restitution judgment.
5017 [
5018 created in Section [
5019 [
5020 Section 100. Section 61-2f-503 , which is renumbered from Section 61-2a-3 is
5021 renumbered and amended to read:
5022 [
5023 (1) (a) There is created a restricted special revenue fund [
5024 Estate Education, Research, and Recovery Fund."
5025 (b) The actual interest earned on the fund shall be deposited into the fund.
5026 [
5027
5028
5029 (2) The money in the fund includes:
5030 (a) a fee imposed under Section 61-2f-505 ; and
5031 (b) interest described in Subsection (1)(b).
5032 (3) The division shall administer the fund to:
5033 (a) reimburse the public for damages caused in a real estate transaction by an
5034 individual licensed under this chapter; and
5035 (b) in accordance with Section 61-2f-504 :
5036 (i) investigate violations of this chapter related to fraud, misrepresentation, or deceit;
5037 or
5038 (ii) provide revenue for improving the real estate profession through education and
5039 research with the goal of making licensees more responsible to the public.
5040 (4) This part applies to damages caused by an individual licensee. Reimbursement
5041 may not be made for a final judgment against an entity.
5042 (5) At the beginning of each fiscal year, the division shall make available $100,000 in
5043 the fund to satisfy final judgments rendered against a person licensed under this chapter.
5044 Section 101. Section 61-2f-504 , which is renumbered from Section 61-2a-12 is
5045 renumbered and amended to read:
5046 [
5047 (1) Money accumulated in the fund in excess of $100,000 shall be set aside and
5048 segregated to be used by the division to:
5049 (a) investigate violations of this chapter [
5050 related to fraud, misrepresentation, or deceit; and
5051 (b) advance education and research in the field of real estate.
5052 (2) The division may [
5053 (1) only in a manner consistent with Subsection (1), including for [
5054 (a) sponsored by the division;
5055 (b) offered by the division in conjunction with any university or college in the state; or
5056 (c) provided for by contracting for a particular research project in the field of real
5057 estate for the state.
5058 Section 102. Section 61-2f-505 , which is renumbered from Section 61-2a-4 is
5059 renumbered and amended to read:
5060 [
5061 (1) [
5062 or associate broker license shall pay, in addition to the application or renewal fee, a reasonable
5063 annual fee of up to $18, as determined by the division with the concurrence of the
5064 commission.
5065 (2) [
5066 license shall pay in addition to the application or renewal fee a reasonable annual fee of up to
5067 $12, as determined by the division with the concurrence of the commission.
5068 (3) Notwithstanding Section 13-1-2 , the additional fees under this section shall be
5069 paid into the fund [
5070 Section 103. Section 61-2f-506 , which is renumbered from Section 61-2a-5 is
5071 renumbered and amended to read:
5072 [
5073 (1) [
5074 the fund [
5075 (a) the person obtains a final judgment;
5076 (b) the person complies with the requirements under this part;
5077 (c) the person is not complicit in the fraud, misrepresentation, or deceit that is the
5078 basis of the claim; and
5079 (d) the final judgment that is the basis for the claim:
5080 (i) has not been discharged in bankruptcy; and
5081 (ii) when a bankruptcy proceeding is open or commenced during the pendency of the
5082 claim, the person obtains an order from the bankruptcy court declaring the final judgment and
5083 related debt to be nondischargeable.
5084 (2) (a) A person may not bring a claim against the fund for money owed under a civil
5085 judgment unless, within 10 business days of the day on which the person brings the civil
5086 action that results in the civil judgment, the person sends to the division a signed notification
5087 [
5088 fraud, misrepresentation, or deceit by a real estate licensee.
5089 (b) Within 30 days [
5090 a notice under Subsection (1), the division has an unconditional right to intervene in the civil
5091 action.
5092 [
5093
5094
5095
5096 (3) (a) After obtaining a final judgment, to file a claim against the fund, a person shall:
5097 (i) file a verified petition in the court where the final judgment [
5098 seeking an order directing payment from the fund [
5099 uncollected actual damages [
5100 judgment that are unpaid;
5101 (ii) serve a copy of the verified petition described in Subsection (3)(a)(i) on the
5102 division; and
5103 (iii) file a copy of the affidavit of service of the verified petition with the court.
5104 [
5105 (i) punitive damages;
5106 (ii) attorney fees;
5107 (iii) interest; or
5108 (iv) court costs.
5109 [
5110 real estate transaction, the liability of the fund may not exceed:
5111 (i) $15,000 for a single transaction; and
5112 (ii) $50,000 for one licensee.
5113 [
5114
5115 [
5116
5117
5118 (5) Subject to Subsection (6), a court may order payment from the fund under this
5119 section only if the person who files the petition shows that the person:
5120 (a) [
5121 (i) in the case of a civil judgment, the spouse of the judgment debtor [
5122 (ii) in the case of a criminal judgment, the spouse of the criminal defendant; or
5123 (iii) a personal representative of [
5124 (5)(a)(i) or (ii);
5125 (b) [
5126 (c) [
5127 (i) is issued by the court in the manner prescribed under this section[
5128 (ii) indicates the amount of the final judgment awarded;
5129 (d) [
5130 date [
5131 (e) (i) (A) [
5132 judgment[
5133 (B) has received a return made by the officer executing the writ [
5134 showing that no property subject to execution in satisfaction of the final judgment could be
5135 found; or
5136 [
5137 defendant:
5138 [
5139 (A) has not realized an amount sufficient to satisfy the final judgment; and
5140 [
5141 (B) is owed a specific balance remaining on the final judgment after application of the
5142 amount realized;
5143 [
5144 whether the judgment debtor or criminal defendant has any interest in property, real or
5145 personal, that may satisfy the final judgment; and
5146 [
5147 final judgment from the assets of the judgment debtor or criminal defendant.
5148 [
5149 not practicable for the petitioner to comply with one or more of the requirements enumerated
5150 in Subsections [
5151 [
5152
5153 [
5154
5155
5156 [
5157
5158 Section 104. Section 61-2f-507 , which is renumbered from Section 61-2a-6 is
5159 renumbered and amended to read:
5160 [
5161 [
5162
5163 (1) When the division is served a petition under Section 61-2f-506 , the division may:
5164 (a) file an answer to the petition in the court;
5165 (b) initiate a review proceeding conducted by the division; or
5166 (c) appear in any proceeding in the name of the defendant to the action or on behalf of
5167 the fund.
5168 [
5169
5170 (2) The division may settle a claim against the fund if:
5171 (a) the person who brings the claim requests a settlement; and
5172 (b) the court in which the petition is filed approves the settlement.
5173 Section 105. Section 61-2f-508 , which is renumbered from Section 61-2a-7 is
5174 renumbered and amended to read:
5175 [
5176 If [
5177
5178 pay a claim under this part, in its order the court shall [
5179 division [
5180 [
5181 accordance with Section 61-2f-506 .
5182 Section 106. Section 61-2f-509 , which is renumbered from Section 61-2a-8 is
5183 renumbered and amended to read:
5184 [
5185 interest.
5186 If [
5187
5188
5189 61-2f-508 , when sufficient money [
5190 (1) satisfy the unpaid claims in the order that [
5191 originally filed[
5192 (2) pay with the claim accumulated interest at the rate of 8% per annum.
5193 Section 107. Section 61-2f-510 , which is renumbered from Section 61-2a-9 is
5194 renumbered and amended to read:
5195 [
5196 revoke license.
5197 (1) (a) If the division [
5198
5199 subrogated to the rights of the [
5200 amounts paid out of the fund [
5201 (b) The division shall deposit in the fund any amount and interest recovered by the
5202 division [
5203 (2) (a) The license of a real estate licensee for whom payment from the fund is made
5204 under this chapter shall be automatically revoked.
5205 (b) [
5206 may not apply for a new license [
5207 (i) the amount paid [
5208 based on a final judgment against the person; and
5209 (ii) interest at a rate determined by the division with the concurrence of the
5210 commission[
5211 Section 108. Section 61-2f-511 , which is renumbered from Section 61-2a-11 is
5212 renumbered and amended to read:
5213 [
5214 (1) [
5215 the director of the division to take disciplinary action against a real estate licensee for a
5216 violation of [
5217 and division.
5218 (2) [
5219 licensee's payment of all the obligations of the real estate licensee to the fund does not nullify
5220 or modify the effect of any other disciplinary proceeding brought pursuant to [
5221
5222 Section 109. Section 61-2f-512 , which is renumbered from Section 61-2a-10 is
5223 renumbered and amended to read:
5224 [
5225 [
5226
5227 under this part.
5228 Section 110. Section 63G-2-302 is amended to read:
5229 63G-2-302. Private records.
5230 (1) The following records are private:
5231 (a) records concerning an individual's eligibility for unemployment insurance benefits,
5232 social services, welfare benefits, or the determination of benefit levels;
5233 (b) records containing data on individuals describing medical history, diagnosis,
5234 condition, treatment, evaluation, or similar medical data;
5235 (c) records of publicly funded libraries that when examined alone or with other records
5236 identify a patron;
5237 (d) records received or generated for a Senate or House Ethics Committee concerning
5238 any alleged violation of the rules on legislative ethics, prior to the meeting, and after the
5239 meeting, if the ethics committee meeting was closed to the public;
5240 (e) records received or generated for a Senate confirmation committee concerning
5241 character, professional competence, or physical or mental health of an individual:
5242 (i) if prior to the meeting, the chair of the committee determines release of the records:
5243 (A) reasonably could be expected to interfere with the investigation undertaken by the
5244 committee; or
5245 (B) would create a danger of depriving a person of a right to a fair proceeding or
5246 impartial hearing; and
5247 (ii) after the meeting, if the meeting was closed to the public;
5248 (f) employment records concerning a current or former employee of, or applicant for
5249 employment with, a governmental entity that would disclose that individual's home address,
5250 home telephone number, Social Security number, insurance coverage, marital status, or payroll
5251 deductions;
5252 (g) records or parts of records under Section 63G-2-303 that a current or former
5253 employee identifies as private according to the requirements of that section;
5254 (h) that part of a record indicating a person's Social Security number or federal
5255 employer identification number if provided under Section 31A-23a-104 , 31A-25-202 ,
5256 31A-26-202 , 58-1-301 , 61-1-4 , or [
5257 (i) that part of a voter registration record identifying a voter's driver license or
5258 identification card number, Social Security number, or last four digits of the Social Security
5259 number;
5260 (j) a record that:
5261 (i) contains information about an individual;
5262 (ii) is voluntarily provided by the individual; and
5263 (iii) goes into an electronic database that:
5264 (A) is designated by and administered under the authority of the Chief Information
5265 Officer; and
5266 (B) acts as a repository of information about the individual that can be electronically
5267 retrieved and used to facilitate the individual's online interaction with a state agency;
5268 (k) information provided to the Commissioner of Insurance under:
5269 (i) Subsection 31A-23a-115 (2)(a);
5270 (ii) Subsection 31A-23a-302 (3); or
5271 (iii) Subsection 31A-26-210 (3);
5272 (l) information obtained through a criminal background check under Title 11, Chapter
5273 40, Criminal Background Checks by Political Subdivisions Operating Water Systems;
5274 (m) information provided by an offender that is:
5275 (i) required by the registration requirements of Section 77-27-21.5 ; and
5276 (ii) not required to be made available to the public under Subsection 77-27-21.5 (27);
5277 and
5278 (n) a statement and any supporting documentation filed with the attorney general in
5279 accordance with Section 34-45-107 , if the federal law or action supporting the filing involves
5280 homeland security.
5281 (2) The following records are private if properly classified by a governmental entity:
5282 (a) records concerning a current or former employee of, or applicant for employment
5283 with a governmental entity, including performance evaluations and personal status information
5284 such as race, religion, or disabilities, but not including records that are public under
5285 Subsection 63G-2-301 (2)(b) or 63G-2-301 (3)(o), or private under Subsection (1)(b);
5286 (b) records describing an individual's finances, except that the following are public:
5287 (i) records described in Subsection 63G-2-301 (2);
5288 (ii) information provided to the governmental entity for the purpose of complying with
5289 a financial assurance requirement; or
5290 (iii) records that must be disclosed in accordance with another statute;
5291 (c) records of independent state agencies if the disclosure of those records would
5292 conflict with the fiduciary obligations of the agency;
5293 (d) other records containing data on individuals the disclosure of which constitutes a
5294 clearly unwarranted invasion of personal privacy;
5295 (e) records provided by the United States or by a government entity outside the state
5296 that are given with the requirement that the records be managed as private records, if the
5297 providing entity states in writing that the record would not be subject to public disclosure if
5298 retained by it; and
5299 (f) any portion of a record in the custody of the Division of Aging and Adult Services,
5300 created in Section 62A-3-102 , that may disclose, or lead to the discovery of, the identity of a
5301 person who made a report of alleged abuse, neglect, or exploitation of a vulnerable adult.
5302 (3) (a) As used in this Subsection (3), "medical records" means medical reports,
5303 records, statements, history, diagnosis, condition, treatment, and evaluation.
5304 (b) Medical records in the possession of the University of Utah Hospital, its clinics,
5305 doctors, or affiliated entities are not private records or controlled records under Section
5306 63G-2-304 when the records are sought:
5307 (i) in connection with any legal or administrative proceeding in which the patient's
5308 physical, mental, or emotional condition is an element of any claim or defense; or
5309 (ii) after a patient's death, in any legal or administrative proceeding in which any party
5310 relies upon the condition as an element of the claim or defense.
5311 (c) Medical records are subject to production in a legal or administrative proceeding
5312 according to state or federal statutes or rules of procedure and evidence as if the medical
5313 records were in the possession of a nongovernmental medical care provider.
5314 Section 111. Section 63J-1-602 is amended to read:
5315 63J-1-602. Nonlapsing accounts and funds.
5316 (1) The following revenue collections, appropriations from a fund or account, and
5317 appropriations to a program are nonlapsing:
5318 (a) appropriations made to the Legislature and its committees;
5319 (b) funds collected by the grain grading program, as provided in Section 4-2-2 ;
5320 (c) the Salinity Offset Fund created in Section 4-2-8.5 ;
5321 (d) the Invasive Species Mitigation Fund created in Section 4-2-8.7 ;
5322 (e) funds collected by pesticide dealer license registration fees, as provided in Section
5323 4-14-3 ;
5324 (f) funds collected by pesticide applicator business registration fees, as provided in
5325 Section 4-14-13 ;
5326 (g) the Rangeland Improvement Fund created in Section 4-20-2 ;
5327 (h) funds deposited as dedicated credits under the Insect Infestation Emergency
5328 Control Act, as provided in Section 4-35-6 ;
5329 (i) the Percent-for-Art Program created in Section 9-6-404 ;
5330 (j) the Centennial History Fund created in Section 9-8-604 ;
5331 (k) the Uintah Basin Revitalization Fund, as provided in Section 9-10-108 ;
5332 (l) the Navajo Revitalization Fund created in Section 9-11-104 ;
5333 (m) the LeRay McAllister Critical Land Conservation Program created in Section
5334 11-38-301 ;
5335 (n) the Clean Fuels and Vehicle Technology Fund created in Section 19-1-403 ;
5336 (o) fees deposited as dedicated credits for hazardous waste plan reviews, as provided
5337 in Section 19-6-120 ;
5338 (p) an appropriation made to the Division of Wildlife Resources for the appraisal and
5339 purchase of lands under the Pelican Management Act, as provided in Section 23-21a-6 ;
5340 (q) award monies under the Crime Reduction Assistance Program, as provided under
5341 Section 24-1-19 ;
5342 (r) funds collected from the emergency medical services grant program, as provided in
5343 Section 26-8a-207 ;
5344 (s) fees and other funding available to purchase training equipment and to administer
5345 tests and conduct quality assurance reviews, as provided in Section 26-8a-208 ;
5346 (t) funds collected as a result of a sanction under Section 1919 of Title XIX of the
5347 federal Social Security Act, as provided in Section 26-18-3 ;
5348 (u) the Utah Health Care Workforce Financial Assistance Program created in Section
5349 26-46-102 ;
5350 (v) monies collected from subscription fees for publications prepared or distributed by
5351 the insurance commissioner, as provided in Section 31A-2-208 ;
5352 (w) monies received by the Insurance Department for administering, investigating
5353 under, and enforcing the Insurance Fraud Act, as provided in Section 31A-31-108 ;
5354 (x) certain monies received for penalties paid under the Insurance Fraud Act, as
5355 provided in Section 31A-31-109 ;
5356 (y) the fund for operating the state's Federal Health Care Tax Credit Program, as
5357 provided in Section 31A-38-104 ;
5358 (z) certain funds in the Department of Workforce Services' program for the education,
5359 training, and transitional counseling of displaced homemakers, as provided in Section
5360 35A-3-114 ;
5361 (aa) the Employment Security Administration Fund created in Section 35A-4-505 ;
5362 (bb) the Special Administrative Expense Fund created in Section 35A-4-506 ;
5363 (cc) funding for a new program or agency that is designated as nonlapsing under
5364 Section 36-24-101 ;
5365 (dd) the Oil and Gas Conservation Account created in Section 40-6-14.5 ;
5366 (ee) funds available to the State Tax Commission for purchase and distribution of
5367 license plates and decals, as provided in Section 41-1a-1201 ;
5368 (ff) certain fees for the cost of electronic payments under the Motor Vehicle Act, as
5369 provided in Section 41-1a-1221 ;
5370 (gg) certain fees collected for administering and enforcing the Motor Vehicle Business
5371 Regulation Act, as provided in Section 41-3-601 ;
5372 (hh) certain fees for the cost of electronic payments under the Motor Vehicle Business
5373 Regulation Act, as provided in Section 41-3-604 ;
5374 (ii) the Off-Highway Access and Education Restricted Account created in Section
5375 41-22-19.5 ;
5376 (jj) certain fees for the cost of electronic payments under the Motor Vehicle Act, as
5377 provided in Section 41-22-36 ;
5378 (kk) monies collected under the Notaries Public Reform Act, as provided under
5379 46-1-23 ;
5380 (ll) certain funds associated with the Law Enforcement Operations Account, as
5381 provided in Section 51-9-411 ;
5382 (mm) the Public Safety Honoring Heroes Restricted Account created in Section
5383 53-1-118 ;
5384 (nn) funding for the Search and Rescue Financial Assistance Program, as provided in
5385 Section 53-2-107 ;
5386 (oo) appropriations made to the Department of Public Safety from the Department of
5387 Public Safety Restricted Account, as provided in Section 53-3-106 ;
5388 (pp) appropriations to the Motorcycle Rider Education Program, as provided in
5389 Section 53-3-905 ;
5390 (qq) fees collected by the State Fire Marshal Division under the Utah Fire Prevention
5391 and Safety Act, as provided in Section 53-7-314 ;
5392 (rr) the DNA Specimen Restricted Account created in Section 53-10-407 ;
5393 (ss) the minimum school program, as provided in Section 53A-17a-105 ;
5394 (tt) certain funds appropriated from the Uniform School Fund to the State Board of
5395 Education for new teacher bonus and performance-based compensation plans, as provided in
5396 Section 53A-17a-148 ;
5397 (uu) certain funds appropriated from the Uniform School Fund to the State Board of
5398 Education for implementation of proposals to improve mathematics achievement test scores,
5399 as provided in Section 53A-17a-152 ;
5400 (vv) the School Building Revolving Account created in Section 53A-21-401 ;
5401 (ww) monies received by the State Office of Rehabilitation for the sale of certain
5402 products or services, as provided in Section 53A-24-105 ;
5403 (xx) the State Board of Regents, as provided in Section 53B-6-104 ;
5404 (yy) certain funds appropriated from the General Fund to the State Board of Regents
5405 for teacher preparation programs, as provided in Section 53B-6-104 ;
5406 (zz) a certain portion of monies collected for administrative costs under the School
5407 Institutional Trust Lands Management Act, as provided under Section 53C-3-202 ;
5408 (aaa) certain surcharges on residence and business telecommunications access lines
5409 imposed by the Public Service Commission, as provided in Section 54-8b-10 ;
5410 (bbb) certain fines collected by the Division of Occupational and Professional
5411 Licensing for violation of unlawful or unprofessional conduct that are used for education and
5412 enforcement purposes, as provided in Section 58-17b-505 ;
5413 (ccc) the Nurse Education and Enforcement Fund created in Section 58-31b-103 ;
5414 (ddd) funding of the controlled substance database, as provided in Section 58-37-7.7 ;
5415 (eee) the Certified Nurse Midwife Education and Enforcement Fund created in Section
5416 58-44a-103 ;
5417 (fff) funding for the building inspector's education program, as provided in Section
5418 58-56-9 ;
5419 (ggg) certain fines collected by the Division of Occupational and Professional
5420 Licensing for use in education and enforcement of the Security Personnel Licensing Act, as
5421 provided in Section 58-63-103 ;
5422 (hhh) the Professional Geologist Education and Enforcement Fund created in Section
5423 58-76-103 ;
5424 (iii) certain monies in the Water Resources Conservation and Development Fund, as
5425 provided in Section 59-12-103 ;
5426 (jjj) funds paid to the Division of Real Estate for the cost of a criminal background
5427 check for principal broker, associate broker, and sales agent licenses, as provided in Section
5428 [
5429 (kkk) the Utah Housing Opportunity Restricted Account created in Section [
5430 61-2-204 ;
5431 (lll) funds paid to the Division of Real Estate for the cost of a criminal background
5432 check for a mortgage loan license, as provided in Section 61-2c-202 ;
5433 (mmm) funds paid to the Division of Real Estate in relation to examination of records
5434 in an investigation, as provided in Section 61-2c-401 ;
5435 (nnn) certain funds donated to the Department of Human Services, as provided in
5436 Section 62A-1-111 ;
5437 (ooo) certain funds donated to the Division of Child and Family Services, as provided
5438 in Section 62A-4a-110 ;
5439 (ppp) the Mental Health Therapist Grant and Scholarship Program, as provided in
5440 Section 62A-13-109 ;
5441 (qqq) assessments for DUI violations that are forwarded to an account created by a
5442 county treasurer, as provided in Section 62A-15-503 ;
5443 (rrr) appropriations to the Division of Services for People with Disabilities, as
5444 provided in Section 62A-5-102 ;
5445 (sss) certain donations to the Division of Substance Abuse and Mental Health, as
5446 provided in Section 62A-15-103 ;
5447 (ttt) certain funds received by the Division of Parks and Recreation from the sale or
5448 disposal of buffalo, as provided under Section 63-11-19.2 ;
5449 (uuu) revenue for golf user fees at the Wasatch Mountain State Park, Palisades State
5450 Park, or Jordan River State Park, as provided under Section 63-11-19.5 ;
5451 (vvv) revenue for golf user fees at the Green River State Park, as provided under
5452 Section 63-11-19.6 ;
5453 (www) the Centennial Nonmotorized Paths and Trail Crossings Program created under
5454 Section 63-11a-503 ;
5455 (xxx) the Bonneville Shoreline Trail Program created under Section 63-11a-504 ;
5456 (yyy) the account for the Utah Geological Survey, as provided in Section 63-73-10 ;
5457 (zzz) the Risk Management Fund created under Section 63A-4-201 ;
5458 (aaaa) the Child Welfare Parental Defense Fund created in Section 63A-11-203 ;
5459 (bbbb) the Constitutional Defense Restricted Account created in Section 63C-4-103 ;
5460 (cccc) a portion of the funds appropriated to the Utah Seismic Safety Commission, as
5461 provided in Section 63C-6-104 ;
5462 (dddd) funding for the Medical Education Program administered by the Medical
5463 Education Council, as provided in Section 63C-8-102 ;
5464 (eeee) certain monies payable for commission expenses of the Pete Suazo Utah
5465 Athletic Commission, as provided under Section 63C-11-301 ;
5466 (ffff) funds collected for publishing the Division of Administrative Rules'
5467 publications, as provided in Section 63G-3-402 ;
5468 (gggg) the appropriation to fund the Governor's Office of Economic Development's
5469 Enterprise Zone Act, as provided in Section 63M-1-416 ;
5470 (hhhh) the Tourism Marketing Performance Account, as provided in Section
5471 63M-1-1406 ;
5472 (iiii) certain funding for rural development provided to the Office of Rural
5473 Development in the Governor's Office of Economic Development, as provided in Section
5474 63M-1-1604 ;
5475 (jjjj) certain monies in the Development for Disadvantaged Rural Communities
5476 Restricted Account, as provided in Section 63M-1-2003 ;
5477 (kkkk) appropriations to the Utah Science Technology and Research Governing
5478 Authority, created under Section 63M-2-301 , as provided under Section 63M-3-302 ;
5479 (llll) certain monies in the Rural Broadband Service Fund, as provided in Section
5480 63M-1-2303 ;
5481 (mmmm) funds collected from monthly offender supervision fees, as provided in
5482 Section 64-13-21.2 ;
5483 (nnnn) funds collected by the housing of state probationary inmates or state parole
5484 inmates, as provided in Subsection 64-13e-104 (2);
5485 (oooo) the Sovereign Lands Management account created in Section 65A-5-1 ;
5486 (pppp) certain forestry and fire control funds utilized by the Division of Forestry, Fire,
5487 and State Lands, as provided in Section 65A-8-103 ;
5488 (qqqq) the Department of Human Resource Management user training program, as
5489 provided in Section 67-19-6 ;
5490 (rrrr) funds for the University of Utah Poison Control Center program, as provided in
5491 Section 69-2-5.5 ;
5492 (ssss) appropriations to the Transportation Corridor Preservation Revolving Loan
5493 Fund, as provided in Section 72-2-117 ;
5494 (tttt) appropriations to the Local Transportation Corridor Preservation Fund, as
5495 provided in Section 72-2-117.5 ;
5496 (uuuu) appropriations to the Tollway Restricted Special Revenue Fund, as provided in
5497 Section 77-2-120 ;
5498 (vvvv) appropriations to the Aeronautics Construction Revolving Loan Fund, as
5499 provided in Section 77-2-122 ;
5500 (wwww) appropriations to the State Park Access Highways Improvement Program, as
5501 provided in Section 72-3-207 ;
5502 (xxxx) the Traffic Noise Abatement Program created in Section 72-6-112 ;
5503 (yyyy) certain funds received by the Office of the State Engineer for well drilling fines
5504 or bonds, as provided in Section 73-3-25 ;
5505 (zzzz) certain monies appropriated to increase the carrying capacity of the Jordan
5506 River that are transferred to the Division of Parks and Recreation, as provided in Section
5507 73-10e-1 ;
5508 (aaaaa) certain fees for the cost of electronic payments under the State Boating Act, as
5509 provided in Section 73-18-25 ;
5510 (bbbbb) certain monies appropriated from the Water Resources Conservation and
5511 Development Fund, as provided in Section 73-23-2 ;
5512 (ccccc) the Lake Powell Pipeline Project Operation and Maintenance Fund created in
5513 Section 73-28-404 ;
5514 (ddddd) certain funds in the Water Development and Flood Mitigation Reserve
5515 Account, as provided in Section 73-103-1 ;
5516 (eeeee) certain funds appropriated for compensation for special prosecutors, as
5517 provided in Section 77-10a-19 ;
5518 (fffff) the Indigent Aggravated Murder Defense Trust Fund created in Section
5519 77-32-601 ;
5520 (ggggg) the Indigent Felony Defense Trust Fund created in Section 77-32-701 ;
5521 (hhhhh) funds donated or paid to a juvenile court by private sources, as provided in
5522 Subsection 78A-6-203 (1)(c);
5523 (iiiii) a state rehabilitative employment program, as provided in Section 78A-6-210 ;
5524 and
5525 (jjjjj) fees from the issuance and renewal of licenses for certified court interpreters, as
5526 provided in Section 78B-1-146 .
5527 (2) No revenue collection, appropriation from a fund or account, or appropriation to a
5528 program may be treated as nonlapsing unless:
5529 (a) it is expressly referenced by this section;
5530 (b) it is designated in a condition of appropriation in the appropriations bill; or
5531 (c) nonlapsing authority is granted under Section 63J-1-603 .
5532 (3) Each legislative appropriations subcommittee shall review the accounts and funds
5533 that have been granted nonlapsing authority under this section or Section 63J-1-603 .
5534 Section 112. Section 70D-3-102 is amended to read:
5535 70D-3-102. Definitions.
5536 As used in this chapter:
5537 (1) "Administrative or clerical tasks" means:
5538 (a) the receipt, collection, and distribution of information common for the process or
5539 underwriting of a loan in the mortgage industry; and
5540 (b) a communication with a consumer to obtain information necessary for the
5541 processing or underwriting of a residential mortgage loan.
5542 (2) "Affiliate" shall be defined by the commissioner by rule made in accordance with
5543 Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
5544 (3) "Applicant" means an individual applying for a license under this chapter.
5545 (4) "Approved examination provider" means a person approved by the nationwide
5546 database as an approved test provider.
5547 (5) "Business as a loan originator" means for compensation or in the expectation of
5548 compensation to engage in an act that makes an individual a loan originator.
5549 (6) "Clerical or support duties" includes after the receipt of an application for a
5550 residential mortgage loan:
5551 (a) the receipt, collection, distribution, and analysis of information common for the
5552 processing or underwriting of a residential mortgage loan; and
5553 (b) communicating with a consumer to obtain the information necessary for the
5554 processing or underwriting of the residential mortgage loan, to the extent that the
5555 communication does not include:
5556 (i) offering or negotiating a residential mortgage loan rate or term; or
5557 (ii) counseling a consumer about a residential mortgage loan rate or term.
5558 (7) "Compensation" means anything of economic value that is paid, loaned, granted,
5559 given, donated, or transferred to an individual or entity for or in consideration of:
5560 (a) services;
5561 (b) personal or real property; or
5562 (c) another thing of value.
5563 (8) "Continuing education" means education taken by an individual licensed under
5564 this chapter in order to meet the education requirements imposed by Section 70D-3-303 to
5565 renew a license under this chapter.
5566 (9) "Covered subsidiary" means a subsidiary that is:
5567 (a) owned and controlled by a depository institution; and
5568 (b) regulated by a federal banking agency.
5569 (10) "Federal banking agency" means:
5570 (a) the Board of Governors of the Federal Reserve System;
5571 (b) the Comptroller of the Currency;
5572 (c) the Director of the Office of Thrift Supervision;
5573 (d) the National Credit Union Administration; or
5574 (e) the Federal Deposit Insurance Corporation.
5575 (11) "Licensee" means an individual licensed under this chapter.
5576 (12) (a) Except as provided in Subsection (12)(b), "loan originator" means an
5577 individual who for compensation or in the expectation of compensation:
5578 (i) takes a residential mortgage loan application; or
5579 (ii) offers or negotiates a term of a residential mortgage loan.
5580 (b) "Loan originator" does not include:
5581 (i) an individual who is engaged solely as a loan processor or underwriter;
5582 (ii) unless compensated by a lender, broker, other loan originator, or an agent of a
5583 lender, broker, or other loan originator, a person who:
5584 (A) only performs real estate brokerage activities; and
5585 (B) is licensed under Title 61, Chapter [
5586 Licensing and Practices Act;
5587 (iii) a person who is solely involved in extension of credit relating to a timeshare plan,
5588 as defined in 11 U.S.C. Sec. 101(53D); or
5589 (iv) an attorney licensed to practice law in this state who, in the course of the
5590 attorney's practice as an attorney, assists a person in obtaining a residential mortgage loan.
5591 (13) "Loan processor or underwriter" means an individual who as an employee
5592 performs clerical or support duties:
5593 (a) at the direction of and subject to the supervision and instruction of:
5594 (i) a licensee; or
5595 (ii) a registered loan originator; and
5596 (b) as an employee of:
5597 (i) the licensee; or
5598 (ii) a registered loan originator.
5599 (14) "Nationwide database" means the Nationwide Mortgage Licensing System and
5600 Registry, authorized under Secure and Fair Enforcement for Mortgage Licensing, 12 U.S.C.
5601 Sec. 5101[
5602 (15) "Nontraditional mortgage product" means a mortgage product other than a
5603 30-year fixed rate mortgage.
5604 (16) "Owned and controlled by a depository institution" may be defined by rule made
5605 by the commissioner in accordance with Title 63G, Chapter 3, Utah Administrative
5606 Rulemaking Act.
5607 (17) "Prelicensing education" means education taken by an individual seeking to be
5608 licensed under this chapter in order to meet the education requirements imposed by Section
5609 70D-3-301 for an individual to obtain a license under this chapter.
5610 (18) "Registered loan originator" means an individual who:
5611 (a) engages in an act as a loan originator only as an employee of:
5612 (i) a depository institution;
5613 (ii) a covered subsidiary; or
5614 (iii) an institution regulated by the Farm Credit Administration; and
5615 (b) is registered with, and maintains a unique identifier through, the nationwide
5616 database.
5617 (19) (a) Subject to Subsection (19)(b), "residential mortgage loan" means:
5618 (i) a mortgage loan; or
5619 (ii) a loan that is:
5620 (A) secured by a mortgage; and
5621 (B) subject to Title 70C, Utah Consumer Credit Code.
5622 (b) A loan described in Subsection (19)(a) is a "residential mortgage loan" only if the
5623 mortgage securing the loan is on:
5624 (i) a dwelling located in the state; or
5625 (ii) real property located in the state, upon which is constructed or intended to be
5626 constructed a dwelling.
5627 (20) "Unique identifier" is as defined in 12 U.S.C. Sec. 5102.
5628 Section 113. Section 72-5-116 is amended to read:
5629 72-5-116. Exemption from state licensure.
5630 In accordance with Section [
5631 working under the oversight of the department when engaging in an act on behalf of the
5632 department related to one or more of the following is exempt from licensure under Title 61,
5633 Chapter [
5634 (1) acquiring real [
5635 (2) disposing of real [
5636 (3) providing services that constitute property management, as defined in Section
5637 [
5638 (4) leasing of real [
5639 Section 114. Repealer.
5640 This bill repeals:
5641 Section 61-2-4, One act for compensation qualifies person as broker or sales
5642 agent.
5643 Section 61-2b-11, Curriculum to be determined by board.
5644 Section 61-2b-16, Certification and licensing examinations.
5645 Section 61-2c-207, Reciprocal licensure.
5646 Section 61-2c-208, Activation and inactivation of license.
5647 Section 115. Coordinating H.B. 275 with H.B. 53 -- Technical amendments.
5648 If this H.B. 275 and H.B. 53, Foreclosure Rescue and Loan Modification Amendments,
5649 both pass, it is the intent of the Legislature that the Office of Legislative Research and General
5650 Counsel in preparing the Utah Code database for publication:
5651 (1) modify Subsection 61-2c-102 (1)(y) as amended in this bill to read as follows:
5652 "[
5653 originator" means an individual who for compensation or in expectation of compensation:
5654 (A) (I) takes a residential mortgage loan application; or
5655 [
5656 (Aa) a purchase;
5657 (Bb) a refinance;
5658 (Cc) a loan modification assistance; or
5659 (Dd) a foreclosure rescue; and
5660 (B) is licensed as a mortgage loan originator in accordance with this chapter."; and
5661 (2) treat the amendments in this bill to Subsections 61-2f-102 (1) and (14) as
5662 superseding the amendments in H.B. 53 to the corresponding subsections, except that the
5663 Office of Legislative Research and General Counsel shall correct the internal subsection cites
5664 in Section 61-2f-102 accordingly.
[Bill Documents][Bills Directory]