Ala. Admin. Code r. 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.
Notes
Author: Lisa Brooks, Executive Director, Alabama Real Estate Appraisers Board
Statutory Authority: Code of Ala. 1975, §§34-27A-54, 34-27A-62.
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