22 Tex. Admin. Code § 159.203 - Sanctions Guidelines
In determining the proper disposition of a formal complaint pending as of or filed after the effective date of this section, and subject to the maximum penalties authorized under Chapter 1104, Texas Occupations Code, staff, the administrative law judge in a contested case hearing and the Board shall consider the following sanctions guidelines and list of non-exclusive factors as demonstrated by the evidence in the record of a contested case proceeding.
(1) For the purposes of
these sanctions guidelines:
(A) An AMC will
not be considered to have had a prior warning letter, contingent dismissal or
discipline if that prior warning letter, contingent dismissal or discipline
occurred more than ten years ago;
(B) A prior warning letter, contingent
dismissal or discipline given less than ten years ago will not be considered
unless the Board took final action against the AMC before the date of the
incident that led to the subsequent disciplinary action;
(C) Prior discipline is defined as any
sanction, including an administrative penalty, received under a Board final or
agreed order;
(D) A violation
refers to a violation of any provision of the AMC Act or Board rules;
(E) "Minor deficiencies" is defined as
violations of the AMC Act or Board rules which do not call into question the
qualification of the AMC for licensure in Texas;
(F) "Serious deficiencies" is defined as
violations of the Act or Board rules which do call into question the
qualification of the AMC for licensure in Texas;
(G) "Remedial measures" include training,
auditing, or any combination thereof; and
(H) The terms of a contingent dismissal
agreement will be in writing and agreed to by all parties. Staff may dismiss
the complaint with a non-disciplinary warning upon written agreement that the
Respondent will complete all remedial measures within the agreed-upon
timeframe. If the Respondent fails to meet the deadlines in the agreement, the
Respondent's license or certification will be automatically set to inactive
status until the Respondent completes the remedial measures set forth in the
agreement.
(2) List of
factors to consider in determining proper disposition of a formal complaint:
(A) Whether the Respondent has previously
received a warning letter or contingent dismissal, and if so, the similarity of
facts or violations in that previous complaint to the facts or violations in
the instant complaint matter;
(B)
Whether the Respondent has previously been disciplined;
(C) If previously disciplined, the nature of
the discipline, including:
(i) Whether it
concerned the same or similar violations or facts;
(ii) The nature of the disciplinary sanctions
imposed;
(iii) The length of time
since the previous discipline;
(D) The difficulty or complexity of the
incident at issue;
(E) Whether the
violations found were of a negligent, grossly negligent or a knowing or
intentional nature;
(F) Whether the
violations found involved a single appraisal or instance of conduct or multiple
appraisals or instances of conduct;
(G) To whom were the appraisal report(s) or
the conduct directed, with greater weight placed upon appraisal report(s) or
conduct directed at:
(i) A financial
institution or their agent, contemplating a lending decision based, in part, on
the appraisal report(s) or conduct at issue;
(ii) The Board;
(iii) A matter which is actively being
litigated in a state or federal court or before a regulatory body of a state or
the federal government;
(iv)
Another government agency or government sponsored entity, including, but not
limited to, the United States Department of Veteran's Administration, the
United States Department of Housing and Urban Development, the State of Texas,
Fannie Mae, and Freddie Mac;
(v) A
consumer contemplating a real property transaction involving the consumer's
principal residence;
(H)
Whether Respondent's violations caused any harm, including financial harm, and
the amount of such harm;
(I)
Whether Respondent acknowledged or admitted to violations and cooperated with
the Board's investigation prior to any contested case hearing;
(J) The business operating history of the
AMC, including:
(i) The size of the AMC's
appraiser panel;
(ii) The length of
time Respondent has been licensed as an AMC in Texas;
(iii) The length of time the AMC has been
conducting business operations, in any jurisdiction;
(iv) The nature and extent of any remedial
measures and sanctions the Respondent had received related to the areas in
which violations were found; and
(v) Respondent's affiliation with other
business entities;
(K)
Whether Respondent can improve the AMC's practice through the use of remedial
measures; and
(L) Whether
Respondent has voluntarily completed remedial measures prior to the resolution
of the complaint.
(3) The
sanctions guidelines contained herein shall be employed in conjunction with the
factors listed in paragraph (2) of this section to assist in reaching the
proper disposition of a formal complaint:
(A)
1st Time Discipline Level 1--violations of the AMC Act or Board rules which
evidence minor deficiencies will result in one of the following outcomes:
(i) Dismissal;
(ii) Dismissal with non-disciplinary warning
letter;
(iii) Contingent dismissal
with remedial measures.
(B) 1st Time Discipline Level 2--violations
of the AMC Act or Board rules which evidence serious deficiencies will result
in one of the following outcomes:
(i)
Contingent dismissal with remedial measures;
(ii) A final order which imposes one or more
of the following:
(I) Remedial
measures;
(II) Required adoption
and implementation of written, preventative policies or procedures;
(III) A probationary period with provisions
for monitoring the AMC;
(IV)
Monitoring and/or preapproval of AMC panel removals for a specified period of
time;
(V) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(VI) Minimum of $1,000 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(C)
1st Time Discipline Level 3--violations of the AMC Act or Board rules which
evidence serious deficiencies and were done with knowledge, deliberately,
willfully, or with gross negligence will result in a final order which imposes
one or more of the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $2,500 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(D) 2nd Time
Discipline Level 1--violations of the AMC Act or Board rules which evidence
minor deficiencies will result in one of the following outcomes:
(i) Dismissal;
(ii) Dismissal with non-disciplinary warning
letter;
(iii) Contingent dismissal
with remedial measures;
(iv) A
final order which imposes one or more of the following:
(I) Remedial measures;
(II) Required adoption and implementation of
written, preventative policies or procedures;
(III) A probationary period with provisions
for monitoring the AMC;
(IV)
Monitoring and/or preapproval of AMC panel removals for a specified period of
time;
(V) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(VI) Minimum of $1,000 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(E)
2nd Time Discipline Level 2--violations of the AMC Act or Board rules which
evidence serious deficiencies will result in a final order which imposes one or
more of the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $2,500 in administrative
penalties per act or omission which constitutes a violation(s) of AMC Act or
Board rules; each day of a continuing violation is a separate
violation.
(F) 2nd Time
Discipline Level 3--violations of the AMC Act or Board rules which evidence
serious deficiencies and were done with knowledge, deliberately, willfully, or
with gross negligence will result in a final order which imposes one or more of
the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $4,000 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(G) 3rd Time
Discipline Level 1--violations of the AMC Act or Board rules which evidence
minor deficiencies will result in a final order which imposes one or more of
the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $2,500 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(H) 3rd Time
Discipline Level 2--violations of the AMC Act or Board rules which evidence
serious deficiencies will result in a final order which imposes one or more of
the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $4,000 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(I) 3rd Time
Discipline Level 3--violations of the AMC Act or Board rules which evidence
serious deficiencies and were done with knowledge, deliberately, willfully, or
with gross negligence will result in a final order which imposes one or more of
the following:
(i) A revocation; and
(ii) Minimum of $7,000 in administrative
penalties per act or omission which constitutes a violation(s) of Board Rules,
or the AMC Act; each day of a continuing violation is a separate
violation.
(J) 4th Time
Discipline--violations of the AMC Act or Board rules will result in a final
order which imposes one or more of the following:
(i) A revocation; and
(ii) $10,000 in administrative penalties per
act or omission which constitutes a violation(s) of the AMC Act or Board rules;
each day of a continuing violation is a separate violation.
(K) Unlicensed AMC activity will result in a
final order which imposes a $10,000 in administrative penalties per unlicensed
AMC activity; each day of a continuing violation is a separate
violation.
(4) In
addition, staff may recommend any or all of the following:
(A) Reducing or increasing the recommended
sanction or administrative penalty for a complaint based on documented factors
that support the deviation, including but not limited to those factors
articulated under paragraph (2) of this section;
(B) Probating all or a portion of any
remedial measure, sanction, or administrative penalty for a period not to
exceed three years;
(C) Requiring
additional reporting requirements;
(D) Payment of costs expended by the Board
associated with the investigation, and if applicable, a contested case,
including legal fees and administrative costs; and
(E) Such other recommendations, with
documented support, as will achieve the purposes of the AMC Act or Board
rules.
Notes
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