06
SB547/AP
Senate
Bill 547
By:
Senators Seabaugh of the 28th, Cagle of the 49th, Johnson of the 1st, Williams
of the 19th and Stephens of the 27th
AS
PASSED
AN
ACT
To
amend Chapter 39A of Title 43 of the Official Code of Georgia Annotated,
relating to real estate appraisers, so as to provide for the recusal of board
members when a conflict of interest exists; to provide for circumstances for
removal of board members; to provide standards for offering education courses on
appraising; to provide for certain conditions for the investigation of
appraisers; to amend Chapter 40 of Title 43 of the Official Code of Georgia
Annotated, relating to real estate brokers and salespersons, so as to provide
for the recusal of members of the Georgia Real Estate Commission; to provide for
certain reasons for removing a member of the Georgia Real Estate Commission; to
provide for grounds for denying a real estate license; to provide for the
requirements for approving a license to a real estate licensing school; to allow
for the regulation of granting, revoking, or suspending a real estate license;
to provide for certain provisions relating to sanctions for violations committed
by licensees, schools, and instructors; to provide for certain provisions
relating to investigating complaints reported to the Georgia Real Estate
Commission; to provide for related matters; to repeal conflicting laws; and for
other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
39A of Title 43 of the Official Code of Georgia Annotated, relating to real
estate appraisers, is amended by striking Code Section 43-39A-3, relating to the
Georgia Real Estate Appraisers Board, requirements for membership, removal from
the board, meetings, and compensation, and inserting in its place a new Code
section to read as follows:
"43-39A-3.
(a)
There is created the Georgia Real Estate Appraisers Board, which shall consist
of five members. All members must be residents of Georgia. One member shall be
a public member. The public member of the board shall not be connected in any
way with the practice of real estate appraisal, real estate brokerage, or
mortgage lending. Four members shall be real estate appraisers who have been
actively engaged in the real estate appraisal business for at least three years.
In appointing real estate appraisers to the board, while not automatically
excluding other appraisers, the Governor shall give preference to real estate
appraisers who do not hold an active, occupational license which authorizes
their work in real estate brokerage or mortgage lending activities, who do not
have a financial interest in any real estate brokerage firm or mortgage lending
firm, and who are not employees of real estate brokerage firms or mortgage
lending firms.
(b)
The Governor shall appoint the members of the board, subject to confirmation by
the Senate, with consideration given to appropriate geographic representation
and to areas of appraisal expertise. Any such appointments made when the Senate
is not in session shall be effective until acted upon by the
Senate.
(c)
A member of the board shall recuse himself or herself from voting on matters in
which the member has a conflict of interest. Whenever an investigation
authorized by this chapter results in the
board́s
initiating a contested case under Chapter 13 of Title 50, the 'Georgia
Administrative Procedure Act,' against a member, such member shall be recused
from voting on such matter and may not discuss the matter with other board
members or be present when the board discusses or votes on such
matter.
(d)
The term of each member of the board shall be five years, except that one of the
successors to the two members first appointed to serve until July 1, 1992, shall
be appointed to serve until July 1, 1994, and one of the successors to the two
members first appointed to serve until July 1, 1993, shall be appointed to serve
until July 1, 1995. In the event of a vacancy, the Governor shall appoint a
person to fill such vacancy and the person so appointed shall serve for the
remainder of the unexpired term.
(e)
Upon expiration of their terms, members of the board shall continue to hold
office until the appointment and qualification of their successors. The
Governor, after giving notice and opportunity for a hearing, may remove from
office any member of the board for any of the following:
(1)
Inability to perform or neglecting to perform the duties required of
members;
(2)
Incompetence;
(3)
Dishonest conduct; or
(4)
Having a disciplinary sanction other than a citation authorized by this chapter
imposed by any professional licensing agency on such
membeŕs
right to practice a trade or profession.
(f)
The members of the board shall annually elect a chairperson from among the
members to preside at board meetings.
(g)
The board shall meet at least once each calendar quarter, or as often as is
necessary, and remain in session as long as the chairperson shall deem it
necessary to give full consideration to the business before the board. A quorum
of the board shall be three members. Members of the board or others may be
designated by the chairperson of the board, in a spirit of cooperation, to
confer with similar boards of other states, attend interstate meetings, and
generally do such acts and things as may seem advisable to the board in the
advancement of the profession and the standards of real estate appraisal
activity.
(h)
Each member of the board shall receive as compensation for each day actually
spent on his or her official duties at scheduled meetings and for time actually
required in traveling to and from its meetings, not to exceed one
daýs
traveling time, the sum of $25.00 and his or her actual and necessary expenses
incurred in the performance of official duties.
(i)
The commission shall supply staff support for the board. The commissioner shall
serve as executive officer of the board. The commissioner shall be charged with
the duties and powers as delegated by the
board."
SECTION
2.
Said
chapter is further amended by striking subsection (c) of Code Section 43-39A-8,
relating to establishing appraiser classifications to comply with federal law,
continuing education courses required for renewing classification, and approval
of instructors, and inserting a new subsection (c) to read as
follows:
"(c)
The board, through its rules and regulations, shall establish standards for
offering of all education courses required by this Code section and for the
approval of schools and instructors to offer the education courses required by
this chapter. Each approved school must comply with Code Sections 43-40-15
through 43-40-32. Each approved school must designate an individual approved by
the board to act as its director and such designated individual shall be
responsible for assuring that the approved school complies with the requirements
of this chapter and rules and regulations promulgated under this chapter. No
school approval shall be granted to a school unless the school authorizes its
director to bind the school to any settlement of a contested case before the
board as defined in Chapter 13 of Title 50, the 'Georgia Administrative
Procedure Act.' Violations of this chapter or its attendant rules and
regulations by an approved school shall subject the school and its director to
sanction as authorized by this
chapter."
SECTION
3.
Said
chapter is further amended by striking subsections (a) and (d) of Code Section
43-39A-22, relating to investigations, subpoenas, confidentiality, access to
records, and the publication of the names of disciplined appraisers and schools,
and inserting in its place a new Code section to read as follows:
"(a)
The board may, upon its own motion, and shall, upon the sworn written request of
any person, investigate the actions of any appraiser, applicant, or school
approved by the board; provided, however, that, whenever a request for
investigation involves an appraisal report which varies from a sales, lease, or
exchange price by 20 percent or less, or, if the appraiser is acting as a tax
consultant, which varies from the tax
assessoŕs
value by 20 percent or less, the board may in its discretion decline to conduct
an investigation. Except for investigations of applicants for appraiser
classifications, investigations of allegations of fraudulent conduct, or
investigations of possible violations of this chapter which have been litigated
in the courts or arise from litigation in the courts, the board shall not
initiate an investigation on its own motion or upon a sworn written request for
investigation unless the act or acts which may constitute a violation of this
chapter occurred within five years of the initiation of the
investigation."
"(d)
The results of all investigations shall be reported only to the board or to the
commissioner and the records of such investigations shall not be subject to
subpoena in civil actions. Records of investigations shall be kept by the board
and no part of any investigative record shall be released for any purpose other
than a hearing before the board or its designated hearing officer, review by
another law enforcement agency or lawful licensing authority upon issuance of a
subpoena from such agency or authority or at the discretion of the board upon an
affirmative vote of a majority of the quorum of the board, review by the
appraiser or applicant who is the subject of the notice of hearing after its
service, review by the
board́s
legal counsel, or an appeal of a decision by the board to a court of competent
jurisdiction; provided, however, if an investigation authorized by this chapter
results in the
board́s
filing a notice of hearing or entering into settlement discussions with a member
of the board, the commissioner shall immediately notify the Governor or the
Governoŕs
legal counsel of such action by the board. After service of a notice of
hearing, the appraiser or applicant who is the subject of the notice of hearing
shall have a right to obtain a copy of the investigative record pertaining to
the
hearing."
SECTION
4.
Chapter
40 of Title 43 of the Official Code of Georgia Annotated, relating to real
estate brokers and salespersons, is amended by striking Code Section 43-40-2,
relating to the creation, meetings, compensation, budget, reports, and rules and
regulations of the Georgia Real Estate Commission, and inserting in its place a
new Code section to read as follows:
"43-40-2.
(a)
There is created the Georgia Real Estate Commission, which shall be composed of
six members, each of whom shall be appointed by the Governor and confirmed by
the Senate for a term of five years. Any such appointments made when the Senate
is not in session shall be effective until acted upon by the Senate. Five of
the members shall be licensees who shall have been residents of this state and
actively engaged in the real estate business for five years. The sixth member
of the commission shall have no connection with the real estate industry
whatsoever but shall have a recognized interest in consumer affairs and in
consumer protection concerns.
(b)
Members of the commission shall serve until their successors are appointed and
qualified. Vacancies on the commission shall be filled by appointment of a
successor for the unexpired term of office by the Governor. Four members shall
constitute a quorum for the transaction of any business of the commission. The
commission shall organize by selecting from its members a chairperson and may do
all things necessary and convenient to carry this chapter into effect. The
commission shall meet at least once a month, or as often as is necessary, and
remain in session as long as the chairperson thereof shall deem it necessary to
give full consideration to the business before the commission. Members of the
commission or others may be designated by the chairperson of the commission, in
a spirit of cooperation and coordination, to confer with similar commissions of
other states, attend interstate meetings, and generally do such acts and things
as may seem advisable to the commission in the advancement of the profession and
the standards of the real estate business.
(c)
A member of the commission shall recuse himself or herself from voting on
matters in which the member has a conflict of interest. Whenever an
investigation authorized by this chapter results in the
commissiońs
initiating a contested case under Chapter 13 of Title 50, the 'Georgia
Administrative Procedure Act,' against a member, such member shall be recused
from voting on such matter and may not discuss such matter with other commission
members or be present when the commission discusses or votes on such
matter.
(d)
The Governor, after giving notice and an opportunity for a hearing, may remove
from office any member of the commission for any of the following:
(1)
Inability to perform or neglecting to perform the duties required of
members;
(2)
Incompetence;
(3)
Dishonest conduct; or
(4)
Having a disciplinary sanction, other than a citation authorized by this
chapter, imposed by any professional licensing agency on such
membeŕs
right to practice a trade or profession.
(e)
The commission is authorized to pass rules and regulations, not inconsistent
with this chapter, relating to the professional conduct of licensees and the
administration of this chapter.
(f)
Each member of the commission shall receive as compensation for each day
actually spent on his or her official duties at scheduled meetings and time
actually required in traveling to and from its meetings, not to exceed one
daýs
traveling time, the sum of $25.00 and his or her actual and necessary expenses
incurred in the performance of his or her official duties.
(g)
The commission, through its chairperson, shall file a written report with the
Governor and a copy thereof with both houses of the General Assembly on or
before the second Tuesday in January of each year. The Governor may request a
preliminary report prior to such an annual report. The report shall include a
summary of all actions taken by the commission, a financial report of income and
disbursements, staff personnel, and number of persons licensed by the
commission. The report shall further delineate steps taken in education and
research to disseminate information so that all licensees can be better informed
in order to protect the public. The commission shall also outline a program of
education and research for each ensuing year, for which a line appropriation
shall be requested.
(h)
The commission shall be a budget unit as defined in Part 1 of Article 4 of
Chapter 12 of Title 45, the 'Budget Act'; provided, however, that the commission
shall be assigned for administrative purposes only to the office of the
Secretary of
State."
SECTION
5.
Said
chapter is further amended by striking subsection (a) of Code Section 43-40-8,
relating to license requirements, and inserting in its place a new subsection
(a) to read as follows:
"(a)
In order to qualify for a community association
manageŕs
license, an applicant must:
(1)
Have attained the age of 18 years;
(2)
Be a resident of the State of Georgia, unless that person has fully complied
with the provisions of Code Section 43-40-9;
(3)
Be a high school graduate or the holder of a certificate of equivalency;
(4)
Furnish evidence of completion of at least 25 in-class hours in a community
association
manageŕs
course or courses of study approved by the commission; and
(5)
Stand and pass a real estate examination administered by or approved by the
commission covering generally the matters confronting real estate brokers who
provide community association management services and community association
managers after completing the requirements of paragraph (4) of this
subsection.
Failure
to meet any of these requirements shall be grounds for denial of license without
a
hearing."
SECTION
6.
Said
chapter is further amended by striking subsection (i) of Code Section 43-40-8,
relating to license requirements, and inserting in its place a new subsection
(i) to read as follows:
"(i)
The commission, through its rules and regulations, shall establish standards for
the approval of schools and instructors to offer the education courses required
by this chapter. Each approved school must comply with Code Sections 43-40-15
through 43-40-32. Each approved school must designate an individual approved by
the commission to act as its director and such designated individual shall be
responsible for assuring that the approved school complies with the requirements
of this chapter and rules and regulations promulgated under this chapter. An
approved school must authorize its director to bind the school to any settlement
of a contested case before the commission as defined in Chapter 13 of Title 50,
the 'Georgia Administrative Procedure Act.' The commission, through its rules
and regulations, shall establish standards for the offering of the prelicense
education courses required by this chapter by methods of instruction, which it
deems to be educationally sound, other than in-class instruction. The
commission, through its rules and regulations, may establish standards for the
offering of continuing education courses required by this chapter by methods of
instruction, which it deems to be educationally sound, other than in-class
instruction."
SECTION
7.
Said
chapter is further amended by striking Code Section 43-40-10, relating to the
granting of a real estate
brokeŕs
license, associate
brokeŕs
license,
salespersońs
license, or community association
manageŕs
license to a firm, and inserting in its place a new Code section to read as
follows:
"43-40-10.
No
brokeŕs
license shall be granted to a firm unless:
(1)
Said firm designates an individual licensed as a broker as its qualifying broker
who shall be responsible for assuring that the firm and its affiliated licensees
comply with the provisions of this chapter and its attendant rules and
regulations; and
(2)
Said firm authorizes its qualifying broker to bind the firm to any settlement of
a contested case before the commission as defined in Chapter 13 of Title 50, the
'Georgia Administrative Procedure Act,' in which said firm may be a named
respondent.
Violations
of this chapter or its rules and regulations by a firm licensed as a broker
shall subject the license of the qualifying broker to sanction as authorized by
this chapter. No
brokeŕs
license shall be granted to a firm unless every person who acts as a licensee
for such firm shall hold a real estate
license."
SECTION
8.
Said
chapter is further amended by striking paragraphs (17) and (26) of subsection
(b) of Code Section 43-40-25, relating to sanctions for violations committed by
licensees, schools, and instructors and unfair trade practices, and inserting in
their places new paragraphs (17) and (26) to read as follows:
"(17)
Paying a commission or compensation to any person for performing the services of
a real estate licensee who has not first secured the appropriate license under
this chapter or is not cooperating as a nonresident who is licensed in such
nonresident́s
state or foreign country of residence, provided that nothing contained in this
subsection or any other provision of this Code section shall be construed so as
to prohibit the payment of earned commissions:
(A)
To the estate or heirs of a deceased real estate licensee when such deceased
real estate licensee had a valid Georgia real estate license in effect at the
time the commission was earned and at the time of such
persońs
death;
(B)
To a citizen of another country acting as a referral agent if that country does
not license real estate brokers and if the Georgia licensee paying such
commission or compensation obtains and maintains reasonable written evidence
that the payee is a citizen of said other country, is not a resident of this
country, and is in the business of brokering real estate in said other country;
or
(C)
By the brokerage firm holding a
licenseés
license to an unlicensed firm in which an individual licensee affiliated with
the brokerage firm owns more than a 20 percent interest provided:
(i)
Such individual licensee earned the commission in behalf of the brokerage
firm;
(ii)
Such unlicensed firm does not perform real estate brokerage
activity;
(iii)
The affiliated licensee and the brokerage firm have a written agreement
authorizing the payment to the unlicensed firm; and
(iv)
The brokerage firm obtains and retains written evidence that the affiliated
licensee owns more than a 20 percent interest in the unlicensed firm to which
the compensation will be
paid;"
"(26)
Obtaining a brokerage agreement, a sales contract, or a lease from any owner,
purchaser, or tenant while knowing or having reason to believe that another
broker has an exclusive brokerage agreement with such owner, purchaser, or
tenant, unless the licensee has written permission from the broker having the
first exclusive brokerage agreement; provided, however, that notwithstanding the
provisions of this paragraph, a licensee shall be permitted to present a
proposal or bid for community association management if requested to do so in
writing from a community association board of
directors;"
SECTION
9.
Said
chapter is further amended by striking subsection (d) of Code Section 43-40-27,
relating to the investigation of complaints reported to the commission, and
inserting in its place a new subsection (d) to read as follows:
"(d)
The results of all investigations shall be reported only to the commission or to
the commissioner, and the records of such investigations shall not be subject to
subpoena in civil actions. Records of investigations shall be kept by the
commission and no part of any investigative record shall be released for any
purpose other than a hearing before the commission or its designated hearing
officer, review by another law enforcement agency or lawful licensing authority
upon issuance of a subpoena from such agency or authority or at the discretion
of the commission upon an affirmative vote of a majority of the quorum of the
commission, review by the licensee or applicant who is the subject of the notice
of hearing after its service, review by the
commissiońs
legal counsel, or an appeal of a decision by the commission to a court of
competent jurisdiction; provided, however, if an investigation authorized by
this chapter results in the
commissiońs
filing a notice of hearing or entering into settlement discussions with a member
of the commission, the commission shall immediately notify the Governor or the
Governoŕs
legal counsel of such action by the commission. After service of a notice of
hearing, a licensee or applicant who is the subject of the notice of hearing
shall have a right to obtain a copy of the investigative record pertaining to
the hearing. Nothing in this subsection shall prevent the commission, in its
sole discretion, from notifying persons who request investigations or the
licensee or applicant who is the subject of the notice of hearing of the receipt
of a request for investigation or the
commissiońs
disposition of the investigation nor from making available to the public any
document that becomes a public record during the hearing process authorized by
Chapter 13 of Title 50, the 'Georgia Administrative Procedure
Act.'"
SECTION
10.
All
laws and parts of laws in conflict with this Act are repealed.