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CHAPTER 465-X-5
ENFORCEMENT AND DISCIPLINARY ACTIONS
TABLE OF CONTENTS
465-X-5-.01 Violations of the Act.
The municipal or county official charged with the responsibility of issuing building or
similar permits shall report to the Executive Director the name and address of any person
who, in the official's opinion, has violated the Act.
Authors: David R. Boyd, Dorman Walker, Lois Woodward
Statutory Authority: Code of Ala. 1975, § 34-14A-13.
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency Rule
effective March 22, 1993; Permanent Rule effective June 16, 1993.
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465-X-5-.02 Initiation of Proceedings.
(1) The Board may initiate such action as it deems appropriate to investigate and determine compliance by residential home builders and licensees with the provisions of the Act and the rules of the Board.
(2) Unless the Board initiates proceedings on its own motion, it shall take action only upon receipt of a written, sworn consumer complaint filed by an original homeowner, stating in detail the activities complained of and that the party is alleged to have engaged in, and presenting the evidence of when, where and how a violation occurred.
(3) An original homeowner submitting a consumer complaint may be required to support it by personal appearance before the Board. If, upon request by the Board, such person refuses to support the consumer complaint by a personal appearance, the Board, in its discretion, may choose to discontinue its investigation of the consumer complaint.
(4) An original homeowner submitting a consumer complaint shall submit the consumer complaint within six years of substantial completion of construction of the residence, or within six years of the date the original homeowner took possession of the residence. Consumer complaints not submitted within six years of substantial completion of construction of the residence, or within six years of the date the original homeowner took possession of the residence, shall not be investigated by the Board.
Authors: David R. Boyd, Dorman Walker, Lois Woodward, Kathy Perry Brasfield
Statutory Authority: Code of Ala. 1975, §§ 34-14A-8, 34-14A-11
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency Rule effective March 22, 1993; Permanent Rule effective June 16, 1993; Amendment and Emergency Amendment filed June 20, 1994; Emergency Amendment effective June 20, 1994; Amendment effective October 28, 1994.
Amended: Filed May 6, 2002; effective June 10, 2002.
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465-X-5-.03 Complaint
Procedure.
(1) In the event a consumer complaint is filed against a licensee,
residential home builder, or any other person or the Board determines from
other information that an investigation is necessary, the procedure for
investigation or complaint shall be as follows:
(a) Upon undertaking an investigation of a licensee, the Board shall notify
the licensee of the investigation and the specific charges being
investigated.
(b) If the residential home builder is engaging in the business of
residential home building, the Board shall provide written notice, in the
form of a stop work order, as prescribed at Ala. Code § 34-14A-14 (1975). If
the residential home builder has engaged in the business of residential home
building, the Board may notify the residential home builder of the
requirements for licensure and the administrative, civil and criminal
liability for a violation of the Act.
(c) Each year the Board shall designate a member and an alternate member to
serve on an investigative committee. This investigative committee shall
consist of the designated Board member, or the designated alternate member,
the Executive Director, and the Board's attorney and shall investigate the
information or complaint to determine whether there is probable cause for
disciplinary and/or enforcement proceedings. The Board member or the
alternate member who participates on the investigative committee shall not
participate in any disciplinary proceedings arising from the investigation.
(d) The investigative committee may enter into informal settlements with the
licensee or residential home builder it is investigating, provided each such
settlement is ratified by the Board.
(e) At the end of the investigation, the investigative committee shall make
a recommendation to the Board as to whether probable cause exists that a
violation of the Act has occurred, and for the Board to initiate
disciplinary proceedings and/or to forward any necessary information to the
appropriate governmental authorities. If the investigative committee
determines following its investigation that no probable cause exists, the
proceedings will terminate.
(2) In the event the investigative committee recommends that probable cause
exists that a violation of the Act has occurred, the Board shall instruct
its counsel to prepare a summons and complaint or notice and opportunity for
hearing, or to forward information to the appropriate governmental
authorities. The Board shall schedule a hearing to be held within three
months from the filing of an administrative summons and complaint or notice
and opportunity for hearing by the Board's Executive Director.
(3) The summons and complaint or notice and opportunity for hearing shall be
mailed certified mail, return receipt requested, to the most recent address
of the licensee on file with the Board at least 15 days prior to the
scheduled date of the hearing. In the event the summons and complaint or
notice and opportunity for hearing is refused or the return receipt has not
been received by the Board or its attorney at least ten days before the
scheduled hearing, the licensee may be served by mailing a copy of same
first-class mail at least seven days before the hearing date.
(4) The summons and complaint or notice and opportunity for hearing shall
give notice in substantial compliance with the Alabama Administrative
Procedure Act, Section 12(b).
(5) In the event the Board instructs its counsel to forward information to
the appropriate governmental authorities, information concerning the
essential facts constituting a violation and an allegation that a violation
of the Act has been committed should be provided to a magistrate or official
authorized by law to issue warrants of arrest.
(6) If the person complained of is a member of the Board, that member shall
be notified and thereafter shall not participate in any matter related to
the complaint.
(7) The Board, in its discretion, may invoke the complaint procedures set
forth in this chapter of these rules against any unlicensed residential home
builder.
Authors: David R. Boyd, Dorman Walker, Lois Woodward, Beth Acker,
Kathy Perry Brasfield.
Statutory Authority: Code of Ala. 1975, §§ 34-14A-8, 34-14A-11,
41-22-1, et seq.
History: Filed: March 22, 1993. New Rule: Filed: May 12, 1993,
effective June 16, 1993. Amendment and Emergency Amendment filed October 1,
1997. Emergency Amendment effective October 1, 1997. Amended: Filed January
28, 1998; effective March 4, 1998. Amended: Filed November 2, 2001;
effective December 7, 2001. Amended: Filed May 6, 2002; effective June 10,
2002. Amended: Filed Nov. 4, 2005; effective December 9, 2005. Amended:
Filed August 4, 2006; effective September 8, 2006.
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465-X-5-.04 Informal Settlement.
(1) No action shall be taken to effect an informal settlement of a
controversy, either prior to or during a contested case proceeding, without formal
approval by the Board of such action.
(2) Informal settlement negotiations may be initiated by either party
to the controversy, provided that neither party is obligated to use informal procedures.
(3) If the Board approves participation in an informal settlement
procedure, it shall negotiate its settlement upon the terms it believes to be in the best
interest of the Board and the public, and if the settlement is effectuated the terms of
the settlement shall be incorporated, by reference, in the official minutes of the Board.
Authors: David R. Boyd, Dorman Walker, Lois Woodward
Statutory Authority: Code of Ala. 1975, §§ 34-14A-8, 34-14A-11, §
41-22-12.
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency Rule
effective March 22, 1993; Permanent Rule effective June 16, 1993.
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465-X-5-.05 Prehearing Discovery.
(1) Prehearing discovery shall be permitted, at the discretion of the Chairman or the hearing officer, in order to prevent fraud, conserve the Board's time, prevent undue surprise at the hearing, or otherwise to provide fundamental fairness.
(2) The attorney for the Board or the respondent may, upon application to the Chairman or the hearing officer, obtain discovery regarding any matter not privileged that 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.
(3) Methods of discovery.
(a) Upon written application to the Chairman or the hearing officer, the following discovery may be allowed or ordered:
1. Deposition upon oral examination of any expert witnesses.
2. Interrogatories to respondent.
3. Order for production and copying of documents and things and entry upon land for inspection and other purposes, against any person.
(b) The discovery must be had in accordance with any terms and conditions imposed by the Chairman or the hearing officer. The Chairman or the hearing officer may impose any such terms and conditions as are just upon discovery in order to protect a person from annoyance, embarrassment, oppression, or undue burden and expense.
Authors: David R. Boyd, Dorman Walker, Lois Woodward, Kathy Perry Brasfield
Statutory Authority: Code of Ala. 1975, § 34-14A-11.
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency Rule effective March 22, 1993; Permanent Rule effective June 16, 1993. Amended: Filed November 2, 2001; effective December 7, 2001.
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465-X-5-.06 Disciplinary Hearings.
(1) Conduct of Hearing.
(a) Disciplinary hearings are closed to the public.
(b) The Board may, in its discretion, appoint some person to act on its behalf
as hearing officer at disciplinary hearings. In the event a hearing officer is
appointed, the officer shall preside at the hearing and shall rule on all
questions of evidence and procedure, notwithstanding any other provisions of
these Rules to the contrary. The Board, in its discretion and subject to the
applicable provisions of the Alabama Administrative Procedure Act, may appoint a
hearing officer to hear the evidence and submit a report to the Board, including
recommended findings of fact and conclusions of law.
(c) The respondent shall plead either "guilty" or "not guilty" to the charges
set forth in the complaint.
(d) Each side shall be permitted to make a short opening statement.
(e) The Executive Director, or a designee thereof, acting on behalf of the
investigative committee, shall present its evidence, followed by the respondent,
followed by rebuttal by the Executive Director or designee. Each witness called
may be examined in the following manner:
1. Direct Examination.
2. Cross Examination.
3. Examination by Board.
4. Redirect Examination.
5. Recross Examination.
6. Re-examination by Board.
(f) Each side shall be permitted to make a short closing statement summarizing
the evidence presented and urging the application of relevant law to the
evidence presented.
(g) The Board may request one or both sides to prepare for the Board's
consideration a proposed order of the Board including findings of fact, official
notice, and conclusions of law. Underlying facts of record which support the
findings should be cited.
(h) The Board shall issue an order within 30 days after either the hearing is
concluded, if conducted by the Board, or the Board's receipt of the hearing
officer's report, if the hearing was conducted by a hearing officer. The order
shall include findings of fact, official notice taken and conclusions of law,
stated separately. Parties shall be notified either personally or by certified
mail, return receipt requested, of any order, and a copy of the final order
shall be delivered and mailed to each party or to his or her attorney of record.
(2) Evidence. Evidence shall be admitted in accordance with the Alabama
Administrative Procedure Act, Section 13. The probable cause note, and any
attachments thereto, shall be admitted into evidence as a portion of the
complaint without further authentication.
(3) Other. The hearing otherwise shall be conducted in compliance with the
provisions of the Alabama Administrative Procedure Act; however, with the
consent of the licensee, the Board may conduct an informal hearing without
meeting the requirements of the Administrative Procedure Act, if no action is to
be taken other than a public or private reprimand.
Authors: David R. Boyd, Dorman Walker, Lois Woodward, Kathy Perry
Brasfield.
Statutory Authority: Code of Ala. 1975, §§ 34-14A-11, 41-22-1, et seq.
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency
Rule effective March 22, 1993; Permanent Rule effective June 16, 1993. Amended:
Filed May 6, 2002; effective June 10, 2002. Amended: Filed August 4, 2006;
effective September 8, 2006.
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465-X-5-.07 Discipline.
(1) Revocation and Suspension of License and Imposition of
Administrative Fines. The Board may revoke or suspend the respondent's license
as a residential home builder in Alabama, may require the successful completion
of builder education course(s), and may levy and collect administrative fines
not to exceed $2,000 per violation of the Act or these rules:
(a) upon a finding by the Board or a court of competent jurisdiction that
respondent has committed fraud or deceit in obtaining a license or has been
guilty of gross negligence, incompetence, or misconduct in the practice of
residential home building, or has violated the standards of practice;
(b) upon the Board's payment of any amount out of the Homeowners' Recovery Fund
on behalf of the respondent; in this instance, the Board shall revoke the
respondent's license as a residential home builder in Alabama;
(c) upon a finding by the Board that, in the case of a partnership, corporate,
or limited liability company licensee, the licensee's designated qualifying
representative has ceased to be a general partner, officer, or member of the
licensee and no other general partner, officer, or member has been designated to
the Board as the licensee's successor qualifying representative within 45 days
after the original designated qualifying representative ceased to serve in that
capacity.
(d) upon a finding by the Board that a licensee has failed to notify the Board
in writing, by certified mail, as required by the Act and these rules, of any of
the following:
1. The institution of any criminal prosecution against him or her, including a
copy of any indictment or information making the charges.
2. The institution of any civil action against him or her involving a
residential home building transaction or the goodwill of an existing home
building business or licensee, including a copy of the complaint.
3. In a criminal action, the rendering of any final verdict or the dismissal of
any charges against him or her, including a copy of the court order or other
document giving the licensee such notice.
4. In a civil action, the entering of a judgment or the dismissal of a complaint
against him or her, including a copy of the court order or other document giving
the licensee such notice.
(e) upon a finding by the Board that the licensee has failed to use a valid
written contract when engaging in the business of residential home building.
(f) upon a finding by the Board that the licensee has failed to comply with any
requirement of the Act or these rules.
(2) Stay of execution of order. The Board may, in its discretion, permanently or
temporarily stay the execution of its order to revoke or suspend the
respondent's license; provided, however, the Board shall not stay the execution
of its revocation order if the respondent has failed to repay any amount paid on
the respondent's behalf out of the Homeowners' Recovery Fund. The stay may be
conditioned on any provision the Board deems appropriate under all the
circumstances of a particular case.
(3) Considerations. In determining whether a license should be revoked or
suspended and whether execution of a revocation or suspension order should be
stayed, and if so, under what conditions, the Board shall consider all the
relevant factors, including, but not limited to, the following:
(a) The severity of the offense;
(b) The danger to the public;
(c) The number of repetitions of offenses;
(d) The length of time since the date of violation;
(e) The number of complaints filed against the licensee;
(f) The licensee's experience;
(g) The actual damage, physical or otherwise, to the complainant;
(h) The deterrent effect of the penalty imposed;
(i) Any efforts at rehabilitation; and
(j) Any other mitigating or aggravating circumstances.
(4) Surrender of License. Upon the Board's revocation or suspension of a
license, the licensee promptly shall surrender to the Board the license card
issued to the licensee.
Authors: David R. Boyd, Dorman Walker, Lois Woodward, Beth Acker, Kathy
Perry Brasfield.
Statutory Authority: Code of Ala. 1975, §§ 34-14A-8, 34-14A-11,
34-14A-15.
History: Filed: March 22, 1993. New Rule: Filed: May 12, 1993, effective
June 16, 1993. Emergency Amended: Filed June 20, 1994. Amended: Filed September
23, 1994; effective October 28, 1994. Amendment and Emergency Amendment filed
October 1, 1997. Emergency Amendment effective October 1, 1997. Amended: Filed
January 28, 1998; effective March 4, 1998. Amended: Filed November 2, 2001;
effective December 7, 2001. Amended: Filed May 6, 2002; effective June 10, 2002.
Amended: Filed August 4, 2006; effective September 8, 2006.
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465-X-5-.08 [Repealed effective June 20,
1994]
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465-X-5-.09 Appeal.
A licensee whose license has been revoked or who
otherwise has been the subject of a final disciplinary action may appeal the
Board's order to the circuit court of the county within which the licensee
resides or, if the licensee is not an Alabama resident, to the Circuit Court
of Montgomery County. The circuit court shall determine whether the Board's
order is supported by substantial evidence. Any such licensee must file with
the Board written notice of his intention to appeal within 30 days of
receipt by the licensee of the Board's final order and must file a petition
for judicial review in the appropriate court within 30 days after filing the
notice of appeal with the Board.
Authors: David R. Boyd, Dorman Walker, Lois Woodward, Kathy Perry
Brasfield.
Statutory Authority: Code of Ala. 1975, §§ 34-14A-8, 41-22-20.
History: Original Rule and Emergency Rule filed March 22, 1993;
Emergency Rule effective March 22, 1993; Permanent Rule effective June 16,
1993. Amended: Filed August 4, 2006; effective September 8, 2006.
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465-X-5-.10 Reinstatement Of
License After Revocation or Suspension.
(1) Application for Reissuance or Reinstatement. Any licensee whose license has been revoked or suspended may apply to the Board for reissuance or reinstatement of the license at any time; provided, however, the Board shall not consider an application for reissuance or reinstatement if the applicant has failed to repay any amount paid on the applicant's behalf out of the Homeowners' Recovery Fund. In the application for reissuance or reinstatement, the applicant shall state why the license should be reissued or reinstated and shall specifically set forth any change in circumstances that would justify the reissuance or reinstatement. The application for reissuance or reinstatement must include evidence that the applicant meets the current licensure requirements for and, unless excused by the Board, the applicant must qualify for licensure through all the procedures, including examination (testing experience and ability, conducted either by the Board or a third party under contract with the Board), for initial licensure.
(2) Board Action. Upon receipt of such application, the Board may grant the applicant a hearing on reissuance or reinstatement, at which time the applicant may appeal to the Board to reissue or reinstate the applicant's license. The Board shall reissue or reinstate the applicant's license if four or more members of the Board vote in favor of the reissuance or reinstatement.
Authors: David R. Boyd, Dorman Walker, Lois Woodward, Beth Acker, Kathy Perry Brasfield
Statutory Authority: Code of Ala. 1975, §§ 34-14A-8, 34-14A-11.
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency Rule effective March 22, 1993; Permanent Rule effective June 16, 1993; Amendment and Emergency Amendment filed October 1, 1997. Emergency Amendment effective October 1, 1997. Amended: Filed January 28, 1998; effective March 4, 1998.
Amended: Filed May 6, 2002; effective June 10, 2002.
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465-X-5-.11 Conflict or Bias.
(1) No Board member shall be entitled to vote or otherwise participate in any hearing or disciplinary matter if the Board member is personally biased for or against the respondent or when such voting or participation would violate the provisions of the Alabama Administrative Procedure Act, Section 18(a).
(2) Any party in a hearing or respondent in a disciplinary action who wishes to assert bias or conflict may do so by filing with the Executive Director at least three days before the scheduled hearing a suggestion of disqualification and a supporting affidavit setting forth the factual basis for the suggestion.
(3) The Board or hearing officer shall consider the suggestion of disqualification on the record as a preliminary matter at the hearing before any other question is decided.
Authors: David R. Boyd, Dorman Walker, Lois Woodward, Kathy Perry Brasfield
Statutory Authority: Code of Ala. 1975, §§ 34-14A-11, 41-22-18(a).
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency Rule effective March 22, 1993; Permanent Rule effective June 16, 1993.
Amended: Filed May 6, 2002; effective June 10, 2002.
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465-X-5-.12 Temporary Restraining
Orders and Other Injunctive Relief. Upon receipt of evidence that a residential
home builder has violated or is about to violate the Act or the rules of the Board, the
Executive Director, acting on the instructions of the Board, may petition the Circuit
Court of the county in which the violation occurred or is about to occur to issue a
temporary restraining order or other appropriate injunctive relief enjoining such
violation.
Authors: David R. Boyd, Dorman Walker, Lois Woodward
Statutory Authority: Code of Ala. 1975, §§ 34-14A-11, 34-14A-14.
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency Rule
effective March 22, 1993; Permanent Rule effective June 16, 1993.
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465-X-5-.13 Institution of Criminal
Proceedings. Upon receipt of evidence that any person has:
(1) Undertaken or attempted to undertake the business of residential
home building without first having procured a valid license as required by the act,
(2) Knowingly presented to or filed false information with the Board
for the purpose of obtaining a license, or
(3) Violated any law or code adopted by a county commission under the
provisions of the Act, the Executive Director, acting on the instructions of the Board,
shall present such evidence to the appropriate governmental authority within the county in
which the residential home builder has acted and may file a complaint regarding the
violations directly with the sheriff in the appropriate county.
Authors: David R. Boyd, Dorman Walker, Lois Woodward
Statutory Authority: Code of Ala. 1975, §§ 34-14A-11, 34-14A-13,
34-14A-14.
History: Original Rule and Emergency Rule filed March 22, 1993; Emergency Rule
effective March 22, 1993; Permanent Rule effective June 16, 1993.
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465-X-5-.14 Public Records-Public
Information.
(1)
The Board must release the following information to the public regarding
complaint files and disciplinary action proceedings:
(a) A settlement agreement adopted and ratified by the Board that closes a
complaint file and represents the Board's final decision in the disciplinary
action proceedings,
(b) The formal charges against a residential home builder filed by the
Board's executive secretary and any amendments thereto, orders to show
cause, and
(c) The Board's final decision in disciplinary action proceedings entered
after a formal disciplinary action hearing.
(2) Disciplinary action hearings shall not be open to the public.
Authors: Beth Acker; Kathy Perry Brasfield.
Statutory Authority: Code of Ala. 1975, §§ 13A-14-2(a), 34-14A-8,
36-12-40, 41-22-12(g).
History: New Rule: New Rule and Emergency Rule filed October 1, 1997;
Emergency Rule effective October 1, 1997. New Rule filed January 28, 1998.
Amended: Filed August 4, 2006; effective September 8, 2006.
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465-X-5-.15 Public Records-Confidential
Information.
(1) All records, reports, documents, photographs, and
information contained in complaint and investigation files maintained by the
Board, and the entire record in disciplinary action proceedings shall be
confidential, shall not be public record, and shall not be available for
court subpoena or for discovery in civil proceedings.
(2) The Board reserves the right to appeal a decision of a court, where the
court orders disclosure in violation of applicable Alabama statutes and case
law.
Authors: Beth Acker; Kathy Perry Brasfield.
Statutory Authority: Code of Ala. 1975, §§ 13A-14-2(a), 34-14A-8,
36-12-40, 41-22-12(g).
History: New Rule: New Rule and Emergency Rule filed October 1, 1997.
Emergency Rule effective October 1, 1997. New Rule filed January 28, 1998.
Amended: Filed August 4, 2006; effective September 8, 2006.
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