Ala. Admin. Code r. 780-X-17-.20

Current through Register Vol. 43, No. 1, October 31, 2024

Section 780-X-17-.20 - Due Process For Appraisal Management Companies

(1)Complaints. Proceedings to censure, conditionally or unconditionally suspend registration, revoke registration, levy fines, or impose civil penalties not exceeding twenty-five thousand dollars ($25,000) against an appraisal management company may be initiated by the Board or by any person upon the filing with the Board Executive Director of an original letter of complaint which shall contain:

(a) name and address of the complaining party as well as the name and address of any appraisal management company against whom the complaint has been filed;

(b) a plain and concise statement of the facts which together indicate that the appraisal management company complained against has violated Chapter 27A, Title 34, Code of Ala. 1975, or regulations promulgated by the Board or Rules of Professional Conduct (Code of Ethics);

(c) any documentation of the alleged violations; and

(d) the signature of the complainant.

(2)Informal Disciplinary Procedure.

(a) In the event a letter of complaint is filed against an appraisal management company, or the Board determines from other information that an investigation is necessary, the procedure for investigation shall be as follows:

1. The letter of complaint or other information will be reviewed by both the Board's Executive Director and attorney.

2. Following the initial review of the letter of complaint, the Board's attorney, with the input and involvement of the Board's Executive Director, will make a recommendation to the Board, as to whether probable cause exists showing that there have been probable violations of the Board's regulations or statutes. A majority of those Board members present will vote whether to accept the staff recommendation.

3. If the Board finds that probable cause exists further investigation will be recommended, or the case may be set for a hearing. Where the investigation determines that the complaint or other information may constitute a violation of the Board's regulations or statutes, the Board's Executive Director or the attorney, without prejudice to its authority to initiate formal action, may take such action as necessary to contact the appraisal management company, complainant, or any other parties, in an effort to resolve and informally settle any dispute which may violate the Board's regulations or statutes. Such action may include, but is not limited to, issuing a request to the appraisal management company to do, or refrain from doing, such activities as the Board may prescribe, and entering a tentative settlement agreement or releases between the appraisal management company, the Board or other parties setting out the terms of any resolution and settlement of violation(s) or potential violation(s).

4. Should the Board's attorney enter into a tentative settlement agreement with the appraisal management company, the Board, by the vote of a majority of those present may accept the settlement agreement, reject the settlement agreement or change the terms of the agreement. Should the terms of the agreement be changed, the Board's attorney will have the authority to settle the case in the manner instructed by the Board. All settlement agreements are subjected to Board approval.

(b) In the event a disciplinary case cannot be settled, the Board or the appraisal management company may request that the case be set for a hearing. Thereafter, a Summons and Complaint may be issued.

(3)Probable Cause. Upon the lodging of a letter of complaint the Board's Executive Director and attorney shall prepare a recommendation to the Board as to whether probable cause exists. The Board will vote to dismiss the case, order further investigation, or direct that the case be set for hearing. The Board's vote to set a case for a hearing is a determination that probable cause exists.

(4)Summons And Complaint.

(a) In the event the Board determines that probable cause exists for the filing of a Summons and Complaint, the Board shall instruct its counsel to prepare such.

(b) The Summons and Complaint shall be mailed certified mail return receipt requested to the address of the respondent on file with the Board and shall be mailed at least twenty-one (21) days prior to the scheduled date of the hearing. A copy shall also be sent first class mail. Service is complete upon mailing.

(c) The Summons and Complaint shall give notice in substantial compliance with the Alabama Administrative Procedure Act, Code of Ala. 1975, §§ 41-22-12(b) and 34-27A-21.

(5)Pre-hearing Discovery.

(a) Pre-hearing discovery may be permitted in accordance with this regulation and § 41-22-12(c), Alabama Administrative Procedures Act, Code of Ala. 1975 to the extent necessary to prevent fraud, conserve the Board's time, prevent undue surprise at hearing and facilitate the miscarriage of justice.

(b) The attorney for the Board or the respondent may, upon application to the presiding officer conducting the hearing, obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the pending action, whether it relates to the charge of the Board or the defense of the respondent.

(c) The discovery must be had in accordance with any terms and conditions ordered by the presiding officer conducting the hearing. The presiding officer may impose such terms and conditions as are just upon discovery in order to protect a person from annoyance, embarrassment, oppression or undue burden or expense.

(6)Disciplinary Hearings.

(a) Conduct of Hearing.

1. All disciplinary hearings on contested cases before the Alabama Real Estate Appraisers Board shall be conducted by a presiding hearing officer.

2. The presiding hearing officer shall have the authority to do all things necessary to ensure that hearings are conducted in accordance with Alabama law and the Rules and Regulations of the Alabama Real Estate Appraisers Board.

3. The presiding hearing officer shall rule on all evidentiary disputes during the hearing.

4. The respondent shall plead either "guilty" or "not guilty" to the charges set forth in the complaint.

5. Each side shall be permitted to make a short opening statement.

6. The state shall present its evidence, followed by the respondent, followed by rebuttal by the state. Each witness called may be examined in the following manner:

(i) Direct examination;

(ii) Cross examination;

(iii) Examination by the Board;

(iv) Re-direct examination;

(v) Re-cross examination;

(vi) Re-examination;

(vii) Rebuttal

7. Each side shall be permitted to make short closing statement summarizing the evidence presented and urging the application of relevant law to the evidence presented.

8. The Board may request from the hearing officer a proposed order(s) including findings of fact, official notice and conclusions of law. Underlying facts of record which support the findings should be cited.

9. The Board shall issue an order within thirty (30) days of the date of the final hearing, or within thirty (30) days of the hearing officer's recommendations, which shall include findings of fact, official notice taken, and conclusions of law, stated separately. Respondent shall be delivered a copy of the order by certified mail return receipt requested, and a copy shall be mailed first class to each attorney of record.

10. Evidence shall be admitted in accordance with the Alabama Administrative Procedure Act, Code of Ala. 1975, § 41-22-13.

(7)Discipline.

(a) Upon a finding that respondent has violated any enumerated provision of §34-2 7A, or any regulation established by the Board, the Board shall impose any or all of the disciplinary penalties set forth in Code of Ala. 1975, §§34-27A, or as otherwise provided by law.

(b) The Board may, in its discretion, permanently or temporarily stay the execution of its order. The stay may be conditioned on any provision the Board deems appropriate under the circumstances of any particular case.

(c) In determining whether a registration should be conditionally or unconditionally suspended, revoked, fined or civil penalties imposed and whether execution of the order should be stayed, and upon what conditions; the Board shall consider all relevant factors, including, but not limited to the following:

1. the severity of the offense,

2. the danger to the public,

3. the number of repetitions of the offense,

4. the length of time since the date of violation,

5. the number of complaints filed against the respondent,

6. the length of time the respondent has operated,

7. the actual damage to the complainant and/or the public,

8. the deterrent effect of the penalty imposed,

9. any efforts or rehabilitation and

10. any other mitigating or aggravating circumstances.

(d) If a public censure is imposed, a notice will be placed in the Alabama Real Estate Appraisers Board's newsletter.

Ala. Admin. Code r. 780-X-17-.20

New Rule: Filed November 18, 2011; effective December 23, 2011.

Author: Lisa Brooks, Executive Director, Alabama Real Estate Appraisers Board

Statutory Authority:Code of Ala. 1975, §§34-27A-54, 34-27A-62.