05 LC 19 6460S
(SCS)
Senate
Bill 68
By:
Senators Seabaugh of the 28th, Johnson of the 1st, Stephens of the 27th, Balfour
of the 9th, Brown of the 26th and others
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 39A of Title 43 of the Official Code of Georgia Annotated,
relating to real estate appraisers, so as to change certain definitions; to
provide for board member recusals under certain circumstances; to provide for
board approval of schools and instructors offering continuing education courses;
to change certain provisions relating to hearings and investigations; to amend
Chapter 40 of Title 43 of the Official Code of Georgia Annotated, relating to
real estate brokers and salespersons, so as to change certain definitions; to
provide for recusal of a commission member in certain circumstances; to change a
provision relating to removal of a commission member; to provide for the
appointment of a director or coordinator for each approved school; to provide
requirements for school approval; to provide for the commission´s power to
regulate school approvals; to provide for hearings relating to refusal to
approve a school; to change provisions relating to investigation of complaints;
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 inserting immediately following paragraph (8)
of Code Section 43-39A-2, relating to definitions, a new paragraph (8.1) to read
as follows:
"(8.1)
'Classification' means any license, certification, registration, approval, or
similar
authorization
to practice a trade or profession permitted by this chapter or by similar
statutes in this or other states by whatever designation such authorization to
practice may be
known."
SECTION
2.
Said
chapter is further amended by striking Code Section 43-39A-3, relating to the
Georgia Real Estate Appraisers Board, and inserting in lieu thereof the
following:
"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)
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.
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 board´s 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 any investigative matter until the
contested case involving such member is resolved.
(d)
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;
or
(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 member´s
right to practice a trade or profession.
(e)
The members of the board shall annually elect a chairperson from among the
members to preside at board meetings.
(f)
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.
(g)
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 day´s
traveling time, the sum of $25.00 and his or her actual and necessary expenses
incurred in the performance of official duties.
(h)
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
3.
Said
chapter is further amended by striking subsection (c) of Code Section 43-39A-8,
relating to establishment of appraiser classifications complying with federal
law, and inserting in lieu thereof the following:
"(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 the provisions of Code
Section 43-40-15 et seq. Each approved school must designate an individual
approved by the board to act as its director or coordinator, and such designated
individual shall be responsible for assuring that the approved school complies
with the requirements of this chapter and its rules and regulations. No school
approval shall be granted to a school unless:
(1)
Said school designates an individual approved by the board to act as its
director or coordinator who shall be responsible for assuring that the school
and its approved instructors comply with the provisions of this chapter and its
attendant rules and regulations; and
(2)
Said school authorizes its director or coordinator 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,' in which said school may
be a named respondent.
Violations
of this chapter or its rules and regulations by an approved school shall subject
the school and its director or coordinator to sanction as authorized by this
chapter."
SECTION
4.
Said
chapter is further amended by striking Code Section 43-39A-13, relating to the
power of the board to regulate the issuance of appraiser classifications, and
inserting in lieu thereof the following:
"43-39A-13.
The
board, through its rules and regulations, shall have the full power to regulate
the issuance of appraiser
classifications,;
to discipline appraisers in any manner permitted by this
chapter,;
to establish qualifications for appraiser classifications consistent with this
chapter,;
to regulate approved courses,
instructors,
and schools; and to establish standards
for real estate appraisals. Except for conducting an investigation as provided
in this chapter, the board is authorized to enter into such contracts as are
necessary to carry out its duties under this chapter; provided, however, the
board may enter into contracts to assist it in the conduct of investigations
authorized by this chapter only whenever it needs special legal or appraisal
expertise or other extraordinary circumstances exist. Whenever the board
contracts to perform such investigative functions, any such contractor working
on an investigation authorized by this chapter shall be under the supervision of
the board or a duly authorized representative of the board. Any contractor used
by the board shall be knowledgeable in the work area for which such contractor
is retained. A contractor shall not be empowered to determine the disposition of
any investigation nor to make any discretionary decision that the board is
authorized by law to make. Notwithstanding any other provision of law, the board
is authorized to retain all funds received as collection fees for use in
defraying the cost of collection of fees required under this chapter. Any such
funds not expended for this purpose in the fiscal year in which they are
generated shall be deposited in the state treasury; provided, however, that
nothing in this Code section shall be construed so as to allow the board to
retain any funds required by the Constitution to be paid into the state
treasury; provided, further, that the board shall comply with all provisions of
Part 1 of Article 4 of Chapter 12 of Title 45, the 'Budget Act,' except Code
Section 45-12-92, prior to expending any such
funds."
SECTION
5.
Said
chapter is further amended by inserting at the end of Code Section 43-39A-14,
relating to the required conduct of applicants, refusal of classification, and
imposition of sanctions, a new subsection (m) to read as follows:
"(m)
The provisions of this Code section applicable to licensees shall also apply to
approvals issued by the
board."
SECTION
6.
Said
chapter is further amended by striking subsection (a) of Code Section 43-39A-15,
relating to hearings in accordance with Chapter 13 of Title 50, the "Georgia
Administrative Procedure Act," and inserting in lieu thereof the
following:
"(a)
If the board, after an application in proper form has been filed with it,
accompanied by the proper fee, shall refuse to issue an appraiser classification
or
approval to such applicant, the board
shall provide an opportunity for a hearing for such applicant in accordance with
Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Unless
otherwise agreed to by the board, all such hearings shall be held in the county
of domicile of the
board."
SECTION
7.
Said
chapter is further amended by striking subsections (a) and (d) of Code Section
43-39A-22, relating to investigations, and inserting in lieu thereof the
following:
"(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
10
20
percent or less,
or, if the
appraiser is acting as a tax consultant, which varies from the tax
assessor´s 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
three
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
all
members
a majority of
the quorum of the board, review by the
respondent after the service of a notice of hearing, review by the board´s
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
board´s 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 Governor´s legal counsel of such action by the
board. After service of a notice of
hearing, a respondent shall have a right to obtain a copy of the investigative
record pertaining to the
respondent."
SECTION
8.
Chapter
40 of Title 43 of the Official Code of Georgia Annotated, relating to real
estate brokers and salespersons, is amended in Code Section 43-40-1, relating to
definitions, by inserting a new paragraph (4.5) and by striking paragraph (5)
and inserting in lieu thereof the following:
"(4.5)
'License' means any authorization or approval to practice a trade or profession
permitted by this chapter or by similar statutes in this or other states by
whatever designation such authorization to practice may be known.
(5)
'Licensee' means any person who is licensed as a community association manager,
salesperson, associate broker,
or
broker, or
qualifying broker or who holds an approval authorized by this chapter or similar
designations in this or other
states."
SECTION
9.
Said
chapter is further amended in Code Section 43-40-2, relating to creation of the
commission, by inserting immediately following subsection (b) a new subsection
(b.1) and by striking subsection (c) and inserting in lieu thereof the
following:
"(b.1)
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 commission´s
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 any investigative matter until the contested case involving such
member is resolved.
(c)
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;
or
(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 member´s
right to practice a trade or
profession."
SECTION
10.
Said
chapter is further amended by striking subsection (i) of Code Section 43-40-8,
relating to the qualifications of licensees, and inserting in lieu thereof the
following:
"(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 Section 43-40-15 et seq. Each approved school must
designate an individual approved by the commission to act as its director or
coordinator, and such designated individual shall be responsible for assuring
that the approved school complies with the requirements of this chapter and its
rules and regulations. If an approved school is organized as a business entity,
such school and designated individuals shall be subject to the same requirements
of business entities and their qualifying brokers as identified in this
chapter. 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
11.
Said
chapter is further amended by striking Code Section 43-40-10, relating to the
granting of a broker´s, associate broker´s, salesperson´s, or
community association manager´s license to a firm, and inserting in lieu
thereof the following:
"43-40-10.
(a)
No broker´s license shall be granted to a firm unless:
(1)
Said
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
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 broker´s license shall be
granted to a firm unless every person who acts as a licensee for such firm shall
hold a real estate license.
(b)
No school approval shall be granted unless:
(1)
Said school designates an individual approved by the commission to act as its
director or coordinator who shall be responsible for assuring that the school
and its approved instructors comply with the provisions of this chapter and its
attendant rules and regulations; and
(2)
Said school authorizes its director or coordinator 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,' in which said school may
be a named respondent.
Violations
of this chapter or its rules and regulations by an approved school shall subject
the school and its director or coordinator to sanction as authorized by this
chapter.
(b)(c)
No associate broker´s, salesperson´s, or community association
manager´s license shall be granted to a corporation, limited liability
company, or partnership unless said corporation, limited liability company, or
partnership designates an individual who holds the same type of license as its
qualifying licensee who shall be responsible for assuring that the corporation,
limited liability company, or partnership complies with the provisions of this
chapter and its attendant rules and regulations. Violations of this chapter or
rules and regulations by a corporation, limited liability company, or
partnership licensed as an associate broker, salesperson, or community
association manager shall subject both the license of the entity and the license
of the qualifying licensee to sanction as authorized by this chapter. The
qualifying licensee shall be the only licensee of a corporation, limited
liability company, or partnership licensed as an associate broker, salesperson,
or community association manager. The license of a corporation, limited
liability company, or partnership licensed as an associate broker, salesperson,
or community association manager must be assigned to a licensed broker. The
licensed associate broker, salesperson, community association manager,
corporation, limited liability company, or partnership or qualifying licensee
may not engage in the brokerage business except in behalf of the broker to whom
its license is
assigned."
SECTION
12.
Said
chapter is further amended by striking Code Section 43-40-14, relating to the
power of the commission to issue, revoke, or suspend licenses and censure
licenses, and inserting in lieu thereof the following:
"43-40-14.
The
commission shall have the full power to regulate the issuance of licenses
or
approvals, to revoke or suspend licenses
or
approvals issued under this chapter, and
to censure
licensees
licenses or
approvals. The commission is authorized to
enter into such contracts as are necessary to carry out its duties under this
chapter; provided, however, the commission may enter into contracts to assist it
in the conduct of investigations and examinations of brokers´ trust
accounts authorized by this chapter only whenever it needs special legal or
accounting expertise or other extraordinary circumstances exist. Whenever the
commission contracts to perform such investigation or examination of trust
account functions, any such contractor working on an investigation or
examination of a trust account authorized by this chapter shall be under the
supervision of the commission or an employee of the commission. Any contractor
used by the commission shall be knowledgeable in the work area for which such
contractor is retained. A contractor shall not be empowered to determine the
disposition of any investigation or examination of a trust account nor to make
any discretionary decision that the commission is authorized by law to make.
Notwithstanding any other provision of law, the commission is authorized to
retain all funds received as collection fees for use in defraying the cost of
collection of fees required under this chapter. Any such funds not expended for
this purpose in the fiscal year in which they are generated shall be deposited
in the state treasury; provided, however, that nothing in this Code section
shall be construed so as to allow the commission to retain any funds required by
the Constitution to be paid into the state treasury; provided, further, that the
commission shall comply with all provisions of Part 1 of Article 4 of Chapter 12
of Title 45, the 'Budget Act,' except Code Section 45-12-92, prior to expending
any such
funds."
SECTION
13.
Said
chapter is further amended by inserting at the end of Code Section 43-40-15,
relating to the grant, revocation, or suspension of licenses, a new subsection
(n) to read as follows:
"(n)
The provisions of this Code section applicable to licensees shall also apply to
approvals issued by the
Commission."
SECTION
14.
Said
chapter is further amended by striking subsection (a) of Code Section 43-40-16,
relating to the nonacceptance of applications for licenses, and inserting in
lieu thereof the following:
"(a)
If the commission, after an application in proper form has been filed with it,
accompanied by the proper fee, shall refuse to issue a license
or
approval to such applicant, the commission
shall provide an opportunity for a hearing for such applicant in accordance with
Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Unless
otherwise agreed by the commission, all such hearings shall be held in the
county of the domicile of the
commission."
SECTION
15.
Said
chapter is further amended by striking subsection (d) of Code Section 43-40-27,
relating to investigation of complaints, and inserting in lieu thereof the
following:
"(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
all
members
a majority of
the quorum of the commission, review by
the respondent after the service of a notice of hearing, review by the
commission´s legal counsel, or an appeal of a decision by the commission to
a court of competent
jurisdiction;
provided, however, that if an investigation authorized by this Code section
results in the commission´s filing a notice of hearing or entering into
settlement discussions with a member of the commission, the commissioner shall
immediately notify the Governor or the Governor´s executive counsel of such
action by the commission. After service of
a notice of hearing, a respondent shall have a right to obtain a copy of the
investigative record pertaining to the respondent.
Nothing in
this subsection shall prevent the commission, in its sole discretion, from
notifying persons who request investigations or respondent licensees of the
receipt of a request for investigation or the commission´s disposition of
the investigation nor from making available to the public any documents that
become a public record during the hearing process authorized by Chapter 13 of
Title 50, the 'Georgia Administrative Procedure
Act.'"
SECTION
16.
All
laws and parts of laws in conflict with this Act are repealed.