Bill Text: MS HB1367 | 2019 | Regular Session | Introduced


Bill Title: Appraisal management companies; prohibit criminal background check as a condition of employment.

Spectrum: Bipartisan Bill

Status: (Failed) 2019-02-14 - Died On Calendar [HB1367 Detail]

Download: Mississippi-2019-HB1367-Introduced.html

MISSISSIPPI LEGISLATURE

2019 Regular Session

To: Workforce Development; Judiciary A

By: Representatives Bell (21st), Barnett, Carpenter

House Bill 1367

AN ACT TO CREATE NEW SECTION 73-34-16, MISSISSIPPI CODE OF 1972, TO PROHIBIT REGISTERED APPRAISAL MANAGEMENT COMPANIES FROM REQUIRING A CRIMINAL BACKGROUND INVESTIGATION AS A CONDITION OF EMPLOYMENT; TO REQUIRE THAT REGISTERED APPRAISAL MANAGEMENT COMPANIES INSTEAD ACCEPT A NEW LICENSE OR RENEWAL ISSUED BY THE MISSISSIPPI REAL ESTATE APPRAISER LICENSING AND CERTIFICATION BOARD FOR THE PURPOSES OF A CRIMINAL BACKGROUND INVESTIGATION; TO REQUIRE THAT AN APPRAISAL MANAGEMENT COMPANY BE RESPONSIBLE FOR THE COST OF AN ADDITIONAL BACKGROUND INVESTIGATION IF COMPLETED FOR ITS OWN PURPOSES; TO BRING FORWARD SECTIONS 73-34-14, 73-34-27, 73-34-33 AND 73-34-35, MISSISSIPPI CODE OF 1972, WHICH RELATE TO REQUIREMENTS AND QUALIFICATIONS OF APPRAISAL MANAGEMENT COMPANIES, FOR THE PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  The following shall be codified as Section 73-34-16, Mississippi Code of 1972:

     73-34-16.  A registered appraisal management company shall not require a criminal background investigation from a licensee as a condition of employment, contractual relationship or access to an appraisal portal.  A registered appraisal management company shall instead accept a new license or the renewal of an existing license after the criminal background investigation required under Sections 73-34-14 and 73-34-27.  If a registered appraisal management company elects to seek an additional criminal background investigation for its own purposes, the expense or cost of the additional investigation shall not be charged to or assessed against the licensee.

     SECTION 2.  Section 73-34-14, Mississippi Code of 1972, is brought forward as follows:

     73-34-14.  (1)  (a)  To qualify for a Mississippi real estate appraiser license, an applicant must have successfully been cleared for licensure through an investigation that shall consist of a determination that the applicant does not possess a background which calls into question public trust, as set forth below in subsection (2), and verification that the prospective licensee is not guilty of or in violation of any statutory ground for denial of licensure as set forth in Section 73-34-35. 

          (b)  To assist the board in conducting its licensure investigation, on and after January 1, 2015, all applicants for a real estate appraiser license as a licensed real estate appraiser (license), licensed certified residential real estate appraiser (certification), or a licensed certified general real estate appraiser (certification), and all applicants for renewal of any real estate appraiser license or certification shall undergo a fingerprint-based criminal history records check of the Mississippi central criminal database and the Federal Bureau of Investigation criminal history database.  Each applicant shall submit a full set of the applicant's fingerprints in a form and manner prescribed by the board, which shall be forwarded to the Mississippi Department of Public Safety (department) and the Federal Bureau of Investigation Identification Division for this purpose.

          (c)  Any and all state or national criminal history records information obtained by the board that is not already a matter of public record shall be deemed nonpublic and confidential information restricted to the exclusive use of the board, its members, officers, investigators, agents and attorneys in evaluating the applicant's eligibility or disqualification for licensure, and shall be exempt from the Mississippi Public Records Act of 1983.  Except when introduced into evidence in a hearing before the board to determine licensure, no such information or records related thereto shall, except with the written consent of the applicant or by order of a court of competent jurisdiction, be released or otherwise disclosed by the board to any other person or agency.

          (d)  The board shall provide to the department the fingerprints of the applicant, any additional information that may be required by the department, and a form signed by the applicant consenting to the check of the criminal records and to the use of the fingerprints and other identifying information required by the state or national repositories.

          (e)  The board shall charge and collect from the applicant, in addition to all other applicable fees and costs, such amount as may be incurred by the board in requesting and obtaining state and national criminal history records information on the applicant.

     (2)  (a)  The board must ensure that applicants for a real estate appraiser license or certification do not possess a background that could call into question public trust.  An applicant found by the board to possess a background which calls into question the applicant's ability to maintain public trust shall not be issued a real estate appraiser license or  certification.

          (b)  The board shall not issue a real estate appraiser license or certification if:

              (i)  The applicant has had an appraiser license or certification revoked in any governmental jurisdiction within the five (5) year period immediately preceding the date of the application;

              (ii)  The applicant has been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, or foreign court:

                   1.  During the five-year period immediately preceding the date of the application for licensing or certification; or

                   2.  At any time preceding the date of the application, if such felony involved an act of fraud, dishonesty, or a breach of trust, or money laundering.

              (iii)  The applicant has failed to demonstrate character and general fitness such as to command the confidence of the community and to warrant a determination that the appraiser will operate honestly, fairly and efficiently within the purpose of these criteria.

          (c)  The board shall evaluate and consider, by rules and regulations, additional background issues, including, but not limited to, those required by the Appraiser Qualifications Board of the Appraisal Foundation in compliance with federal requirements, prior to issuing (or taking disciplinary action against) a real estate appraiser.

          (d)  The board shall adopt rules and regulations necessary to implement, administer and enforce the provisions of this section.

     SECTION 3.  Section 73-34-27, Mississippi Code of 1972, is brought forward as follows:

     73-34-27.  To obtain a renewal of any of the real estate appraisal licenses or a renewal of any registration issued under this chapter, the holder of a current, valid license or registration shall make application and pay the prescribed fee to the commission not earlier than one hundred twenty (120) days nor later than the expiration date, as defined in Section 73-34-25, of the license then held.  Each application for renewal shall be accompanied by evidence, in the form prescribed by the board, of having completed the continuing education requirements for renewal specified in this chapter.

     If a licensed appraiser or licensed certified real estate appraiser under this chapter fails to renew his license, or an appraisal management company fails to renew its registration before its expiration or within any period of extension granted under this chapter, that person or company may obtain a renewal of their license or registration by satisfying all of the requirements for renewal and filing an application for renewal, accompanied by a late renewal fee, within sixty (60) days of the date that the license or registration expired.

     From and after January 1, 2015, all applicants for a real estate appraisal license renewal shall undergo a fingerprint-based criminal history records check of the Mississippi central criminal database and the Federal Bureau of Investigation criminal history database pursuant to the provisions of Section 73-34-14.

     SECTION 4.  Section 73-34-33, Mississippi Code of 1972, is brought forward as follows:

     73-34-33.  (1)  As a prerequisite to renewal of license, an active status licensed appraiser shall present evidence satisfactory to the board that such appraiser has met the continuing education requirements of this section.  The basic continuing education requirement for renewal of a license shall be completed by the applicant, during the immediately preceding term of licensure, of not less than twenty (20) classroom hours of instruction in courses or seminars which have received the approval of the board.  Inactive status licensees are not required to meet the continuing education requirements specified in this section; however, such inactive licensees, before activating their license to active status, shall cumulatively meet the requirements missed during the period their license was inactive. 

     (2)  In lieu of meeting the requirements set forth above, an applicant for renewal may satisfy all or part of the requirements by presenting evidence of the following:

          (a)  Completion of an educational program of study determined by the board to be equivalent, for continuing education purposes, to courses or seminars approved by the board; or

          (b)  Participation, other than as a student, in educational processes and programs approved by the board which relate to real property appraisal theory, practices or techniques, including, but not necessarily limited to, teaching, program development and preparation of textbooks, monographs, articles and other instructional materials. 

     (3)  The board shall develop regulations for the implementation of the provisions of this section to ensure that an individual who renews his license as a licensed appraiser or as a licensed certified real estate appraiser under this chapter has a working knowledge of current real estate appraisal theories, practices and techniques that will enable him to provide competent real estate appraisal services to the members of the public with whom he deals in a professional relationship under the authority of his licensure.  The regulations developed by the board shall prescribe the following:

          (a)  Policies and procedures to be followed in obtaining board approval of courses of instruction and seminars;

          (b)  Standards, policies and procedures to be used by the board in evaluating an applicant's claims of equivalency; and

          (c)  Standards, monitoring methods, and systems for recording attendance to be employed by course and seminar sponsors as a prerequisite to board approval of courses and seminars for credit. 

     In developing and proposing regulations under this section, the board shall give consideration to courses of instruction, seminars and other appraisal education programs developed by or under the authority of organizations or associations of professional real estate appraisers which are utilized by such organizations or associations for the purpose of awarding real estate appraisal designations or indicating compliance with the continuing education requirements of such organizations or associations. 

     (4)  No amendment or repeal of a regulation adopted by the board pursuant to this section shall operate to deprive a licensed appraiser or licensed certified real estate appraiser of credit toward renewal of such appraiser's license for any course of instruction or seminar that had been completed by such individual prior to the amendment or repeal of the regulation.

     SECTION 5.  Section 73-34-35, Mississippi Code of 1972, is brought forward as follows:

     73-34-35.  (1)  An application for licensure or renewal may be denied, and the rights of any licensed appraiser or licensed certified real estate appraiser may be revoked or suspended, or the holder of the license may be otherwise disciplined, in accordance with the provisions of this chapter for any of the following acts or omissions:

          (a)  Failing to meet the minimum qualifications for licensure established under this chapter;

          (b)  Procuring or attempting to procure licensure under this chapter by knowingly making a false statement, submitting false information or making a material misrepresentation in an application filed with the commission or procuring or attempting to procure licensure through any form of fraud or misrepresentation;

          (c)  Paying money other than the fees provided for by this chapter to any member or employee of the commission or the board to procure licensure under this chapter;

          (d)  An act or omission in the practice of real estate appraising which constitutes dishonesty, fraud or misrepresentation with the intent to substantially benefit the licensee or another person or with the intent to substantially injure another person;

          (e)  Entry of a final civil or criminal judgment against a licensee on grounds of fraud, misrepresentation or deceit;

          (f)  Conviction, including a conviction based upon a plea or finding of guilty, of a crime which is substantially related to the qualifications, functions or duties of a person developing real estate appraisals and communicating real estate appraisals to others;

          (g)  Engaging in the business of real estate appraising under an assumed or fictitious name not properly registered in this state;

          (h)  Paying a finder's fee or a referral fee;

          (i)  Making a false or misleading statement in that portion of a written appraisal report that deals with professional qualifications or in any testimony concerning professional qualifications;

          (j)  Issuing an appraisal on any real property in which the appraiser has an interest through fee simple ownership, leasehold, rental agreement or auction agreement;

          (k)  Taking a listing for the sale of a property within ninety (90) days of appraising such property, except as may be otherwise agreed upon by all parties and disclosed in the listing agreement; or

          (l)  Any act or conduct, whether the same or of a different character than specified above, which constitutes or demonstrates bad faith, incompetency or untrustworthiness; or dishonest, fraudulent or improper dealing; or any other violation of the provisions of this chapter and of rules and regulations established by the board.

     (2)  In accordance with the laws of this state, and to the extent permitted by any applicable federal legislation or regulation, the board may censure an appraisal management company, conditionally or unconditionally suspend or revoke any registration issued under this chapter, or deny renewal of any registration issued under this chapter, or levy fines or impose civil penalties not to exceed Five Thousand Dollars ($5,000.00), if after appropriate investigation the board concludes that an appraisal management company is attempting to perform, has performed, or has attempted to perform any of the following acts:

          (a)  Committed any act in violation of this chapter;

          (b)  Violated any rule or regulation adopted by the board in the interest of the public and consistent with the provisions of this chapter; or

          (c)  Procured a registration for itself or any other person by fraud, misrepresentation or deceit.

     (3)  In order to promote voluntary compliance, encourage appraisal management companies to correct errors promptly, and ensure a fair and consistent approach to enforcement, the board is authorized to impose fines or civil penalties that are reasonable in light of the nature, extent and severity of the violation.  The board is also authorized to take action against an appraisal management company's registration, if at all, only after less

severe sanctions have proven insufficient to ensure behavior consistent with this chapter.  When deciding whether to impose a sanction permitted by subsection (2), determining the sanction that is most appropriate in a specific instance, or making any other discretionary decision regarding the enforcement of this chapter, the board shall consider whether an appraisal management company:

          (a)  Has an effective program reasonably designed to ensure compliance with this chapter;

          (b)  Has taken prompt and appropriate steps to correct and prevent the recurrence of any detected violations; and

          (c)  Has independently reported to the board any significant violations or potential violations of this chapter, before an imminent threat of disclosure or investigation and within a reasonably prompt time after becoming aware of their occurrence.

     (4)  In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153.  The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be.  If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

     SECTION 6.  This act shall take effect and be in force from and after July 1, 2019.


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