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Am. Sub. S. B. No. 223 As Passed by the HouseAs Passed by the House
126th General Assembly | Regular Session | 2005-2006 |
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Senators Niehaus, Schuring, Spada, Mumper, Jacobson, Clancy, Armbruster, Coughlin, Hagan, Harris, Kearney, Miller, D., Roberts, Fedor, Zurz, Miller, R.
Representatives Combs, Collier, Widener, McGregor, J., Cassell, Book, Calvert, Chandler, Domenick, Evans, C., Flowers, Gibbs, Gilb, Hoops, Hughes, Luckie, Patton, T., Perry, Reidelbach, Smith, G., Stewart, D., Yuko
A BILL
To amend sections 121.04, 121.08, 169.01, 169.13,
169.99, 1322.03, 1322.031, and 4763.05 and to enact sections 169.14, 169.16, and
169.17 of the Revised Code to statutorily recognize
the Division of Unclaimed Funds and the Office of
Superintendent of Unclaimed Funds in the Department
of Commerce and to require the registration of
persons who, for compensation, agree to locate or
recover the unclaimed funds of another.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 121.04, 121.08, 169.01, 169.13,
169.99, 1322.03, 1322.031, and 4763.05 be amended and sections 169.14, 169.16, and 169.17 of the
Revised Code be enacted to read as follows:
Sec. 121.04. Offices are created within the several
departments as follows: In the department of commerce:
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Commissioner of securities; |
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Superintendent of real estate and professional licensing; |
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Superintendent of financial institutions; |
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Fire marshal; |
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Superintendent of labor and worker safety; |
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Beginning on July 1, 1997, |
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Superintendent of liquor control; |
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Superintendent of industrial compliance; |
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Superintendent of unclaimed funds. |
In the department of administrative services:
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State architect and engineer; |
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Equal employment opportunity coordinator. |
In the department of agriculture: Chiefs of divisions as follows:
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Administration; |
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Animal industry; |
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Dairy; |
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Food safety; |
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Plant industry; |
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Markets; |
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Meat inspection; |
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Consumer analytical laboratory; |
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Amusement ride safety; |
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Enforcement; |
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Weights and measures. |
In the department of natural resources: Chiefs of divisions as follows:
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Water; |
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Mineral resources management; |
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Forestry; |
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Natural areas and preserves; |
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Wildlife; |
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Geological survey; |
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Parks and recreation; |
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Watercraft; |
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Recycling and litter prevention; |
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Soil and water conservation; |
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Real estate and land management; |
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Engineering. |
In the department of insurance:
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Deputy superintendent of insurance; |
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Assistant superintendent of insurance, technical; |
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Assistant superintendent of insurance,
administrative; |
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Assistant superintendent of insurance, research. |
Sec. 121.08. (A) There is hereby created in the
department
of commerce the position of deputy director of
administration.
This officer shall be appointed by the director of commerce,
serve
under the director's direction,
supervision, and control, perform
the duties the director
prescribes, and hold office during the
director's pleasure.
The director of commerce may designate an
assistant director of
commerce to serve as the deputy director of
administration. The deputy director of administration shall
perform the
duties prescribed by the director of commerce
in supervising the
activities of the division of administration of
the department of
commerce. (B) Except as provided in section 121.07 of the Revised
Code,
the department of commerce shall have all powers and perform
all
duties vested in the deputy director of administration, the
state fire
marshal,
the superintendent of financial institutions,
the superintendent of real
estate and professional licensing, the
superintendent of liquor control, the superintendent of the
division of
industrial compliance, the superintendent of labor and
worker
safety, the superintendent of unclaimed funds, and the commissioner of
securities, and shall have
all powers and perform all duties
vested by law in all officers,
deputies, and employees of those
offices. Except as provided in
section 121.07 of the Revised
Code, wherever powers are conferred
or duties imposed upon any of
those officers, the powers and
duties shall be construed as
vested in the department of commerce. (C)(1) There is hereby created in the department of commerce
a
division of financial institutions, which shall have all powers
and perform all
duties vested by law in the superintendent of
financial institutions.
Wherever
powers are conferred or duties
imposed upon the superintendent of
financial institutions, those
powers and duties shall be construed
as vested in the
division of
financial institutions. The division of
financial institutions
shall be administered
by a the superintendent of financial
institutions. (2) All provisions of law governing the superintendent of
financial institutions
shall apply to and govern the
superintendent of financial institutions
provided
for in this
section; all authority vested by law in the
superintendent of
financial institutions with respect to the
management of the
division of financial institutions shall be construed as vested in
the
superintendent of financial institutions created by this
section
with respect to
the division of financial institutions
provided for in this
section; and all
rights, privileges, and
emoluments conferred by law upon the
superintendent of financial
institutions shall be construed as
conferred upon the
superintendent of financial institutions as head of the division
of financial institutions. The
director of commerce shall not
transfer from the division of financial
institutions any of the
functions specified in division
(C)(2) of this
section. (D) There is hereby created in
the department of commerce a division of liquor control, which
shall have all
powers and perform all duties vested by law in the
superintendent of liquor
control. Wherever powers are conferred
or duties are imposed upon the
superintendent of liquor
control,
those powers and duties shall be construed as vested in the
division
of liquor control. The division of liquor control shall
be administered by a the
superintendent of liquor control. (E) The director of commerce shall not be interested,
directly or indirectly,
in any firm or corporation which is a
dealer in
securities as defined in sections 1707.01 and 1707.14 of
the
Revised Code, or in any firm or corporation licensed under
sections 1321.01 to 1321.19 of the Revised Code. (F) The director of commerce shall not have any official
connection
with a savings and
loan association, a savings bank, a
bank, a bank holding company, a savings
and loan association
holding company, a consumer finance company, or a credit
union
that is under the supervision of the division of financial
institutions, or a subsidiary of any
of the preceding entities, or
be interested in the business thereof. (G) There is hereby created in the state treasury the
division
of administration fund. The fund shall receive
assessments on
the operating funds of the department of commerce
in accordance
with procedures prescribed by the director of
commerce and
approved by the director of budget and management.
All operating
expenses of the division of administration shall be
paid from the
division of administration fund. (H) There is hereby created in the department of commerce a
division of real
estate and professional licensing, which shall be
under the control and
supervision of the director of commerce.
The division of real estate and
professional licensing shall be
administered by a the superintendent of real
estate and professional
licensing. The superintendent of real estate and
professional
licensing shall exercise the powers and perform the functions and
duties delegated to the superintendent under Chapters
4735.,
4763., and 4767. of the Revised Code. (I) There is hereby created in the department of commerce a
division
of labor and worker safety, which shall have all powers
and perform all
duties vested by law in the superintendent of
labor and worker safety.
Wherever powers are conferred or duties
imposed upon the superintendent
of labor and worker safety, those
powers and duties shall be
construed as vested in the division of
labor and worker safety.
The division of labor and worker safety
shall be under the control
and supervision of the director of commerce
and be administered by a the
superintendent of labor and worker safety.
The superintendent of
labor and worker safety shall exercise the
powers and perform the
duties delegated to the superintendent by
the director under
Chapters
4109.,
4111., and
4115. of the
Revised Code.
(J) There is hereby created in the department of commerce a
division of unclaimed funds, which shall have all powers and
perform all duties delegated to or vested by law in the
superintendent of unclaimed funds. Wherever powers are conferred
or duties imposed upon the superintendent of unclaimed funds,
those powers and duties shall be construed as vested in the
division of unclaimed funds. The division of unclaimed funds
shall be under the control and supervision of the director of
commerce and shall be administered by the superintendent of
unclaimed funds. The superintendent of unclaimed funds shall
exercise the powers and perform the functions and duties delegated
to the superintendent by the director of commerce under section
121.07 and Chapter 169. of the Revised Code, and as may otherwise
be provided by law. (K) The department of commerce or a division of the department created by the Revised Code that is acting with authorization on the department's behalf may request from the bureau of criminal identification and
investigation pursuant to section 109.572 of the Revised Code, or
coordinate with appropriate federal, state, and local government
agencies to accomplish, criminal records checks for the persons
whose identities are required to be disclosed by an applicant for
the issuance or transfer of a permit, license, certificate of registration, or certification issued or transferred by the department or division. At or before
the time of making a request for a criminal
records check, the
department or division may require any person whose identity is required to be
disclosed by an applicant for the issuance or transfer of
such a license, permit, certificate of registration, or certification to submit to
the department or division valid fingerprint
impressions in a format and by any
media or means acceptable to
the bureau of criminal identification
and investigation and, when
applicable, the federal bureau of
investigation. The department or division may
cause the bureau of criminal identification and investigation to
conduct a criminal records check through the federal bureau of
investigation only if the person for whom the criminal records
check would be conducted resides or works outside of this state or
has resided or worked outside of this state during the preceding
five years, or if a criminal records check conducted by the bureau
of criminal identification and investigation within this state
indicates that the person may have a criminal record outside of
this state.
In the case of a criminal records check under section
109.572 of the Revised Code, the department or division shall forward to the
bureau of criminal identification and investigation the requisite
form, fingerprint impressions, and fee described in division (C)
of that section. When requested by the department or division in accordance
with this section, the bureau of
criminal identification and
investigation shall request from the
federal bureau of
investigation any information it has with
respect to the person
who is the subject of the requested criminal
records check and
shall forward the requisite fingerprint
impressions and
information to the federal bureau of investigation
for that
criminal records check. After conducting a criminal
records check
or receiving the results of a criminal records check
from the
federal bureau of investigation, the bureau of criminal
identification and investigation shall provide the results to the
department or division.
The department or division may require any person about whom a criminal
records check is requested to pay to the department or division the amount
necessary to cover the fee charged to the department or division by the bureau
of criminal identification and investigation under division (C)(3)
of section 109.572 of the Revised Code, including, when
applicable, any fee for a
criminal records check conducted by the
federal bureau of
investigation.
Sec. 169.01. As used in this chapter, unless the context
otherwise requires: (A) "Financial organization" means any bank, trust
company,
savings bank, safe deposit company, mutual savings bank
without
mutual stock, savings and loan association, credit union,
or
investment company. (B)(1) "Unclaimed funds" means any moneys, rights to moneys,
or intangible property, described in section 169.02 of the
Revised
Code, when, as shown by the records of the holder, the
owner has
not, within the times provided in section 169.02 of the
Revised
Code, done any of the following: (a) Increased, decreased, or adjusted the amount of such
funds; (b) Assigned, paid premiums, or encumbered such funds; (c) Presented an appropriate record for the crediting of
such funds or received payment of such funds by check, draft, or
otherwise; (d) Corresponded with the holder concerning such funds; (e) Otherwise indicated an interest in or knowledge of
such
funds; (f) Transacted business with the holder. (2) "Unclaimed funds" does not include any of the
following: (a) Money received or
collected under section 9.39 of the
Revised Code; (b) Any payment or credit due to a business association from
a
business association representing sums payable to suppliers, or
payment for
services rendered, in the course of business,
including, but not limited to,
checks or memoranda, overpayments,
unidentified remittances, nonrefunded
overcharges, discounts,
refunds, and rebates; (c) Any payment or credit received by a business association
from
a business association for tangible goods sold, or services
performed, in the
course of business, including, but not limited
to, checks or memoranda,
overpayments, unidentified remittances,
nonrefunded overcharges, discounts,
refunds, and rebates; (d) Any credit due a retail customer that is represented by a
gift certificate, gift card, merchandise credit, or merchandise
credit card, redeemable only for merchandise. For purposes of divisions (B)(2)(b) and
(c) of this section,
"business association" means any
corporation, joint venture,
business trust, limited liability company,
partnership,
association, or other business entity composed of one or more
individuals, whether or not the entity is for profit. (C) "Owner" means any person, or the person's legal
representative, entitled to receive or having a legal or equitable
interest in
or claim against moneys, rights to moneys, or other
intangible
property, subject to this chapter. (D)(1) "Holder" means any person that has possession,
custody, or control of moneys, rights to moneys, or other
intangible property, or that is indebted to another, if any of the
following applies: (a) Such person resides in this state; (b) Such person is formed under the laws of this state; (c) Such person is formed under the laws of the United
States and has an office or principal place of business in
this
state; (d) The records of such person indicate that the last
known
address of the owner of such moneys, rights to moneys, or
other
intangible property is in this state; (e) The records of such person do not indicate the last
known address of the
owner of the moneys, rights to moneys, or
other intangible property and the
entity originating or issuing
the moneys, rights to moneys, or other
intangible property is this
state or any political subdivision of this state,
or is
incorporated, organized, created, or otherwise located in this
state.
Division (D)(1)(e) of this section applies to all moneys,
rights to moneys, or
other intangible property that is in the
possession, custody, or control of
such person on or after July
22, 1994, whether the
moneys, rights to moneys, or other
intangible property becomes unclaimed funds
prior to or on or
after
that date. (2) "Holder" does not mean any hospital granted tax-exempt
status under section 501(c)(3) of the Internal Revenue Code or
any
hospital owned or operated by the state or by any political
subdivision. Any entity in order to be exempt from the
definition
of "holder" pursuant to this division shall make a
reasonable,
good-faith effort to contact the owner of the
unclaimed funds. (E) "Person" includes a natural person; corporation,
whether
for profit or not for profit; copartnership;
unincorporated
association or organization; public authority;
estate; trust; two
or more persons having a joint or common
interest; eleemosynary
organization; fraternal or cooperative
association; other legal or
community entity; the United States
government, including any
district, territory, possession,
officer, agency, department,
authority, instrumentality, board,
bureau, or court; or any state
or political subdivision thereof,
including any officer, agency,
board, bureau, commission,
division, department, authority, court,
or instrumentality. (F) "Mortgage funds" means the mortgage insurance fund
created by section 122.561 of the Revised Code, and the housing
guarantee fund created by division (D) of section 128.11 of the
Revised Code. (G) "Lawful claims" means any vested right a holder of
unclaimed funds has against the owner of such unclaimed funds. (H) "Public utility" means any entity defined as such by
division (A) of section 745.01 or by section 4905.02 of the
Revised Code. (I) "Deposit" means to place money in the custody of a
financial organization for the purpose of establishing an
income-bearing account by purchase or otherwise. (J) "Income-bearing account" means a time or savings
account, whether or not evidenced by a certificate of deposit, or
an investment account through which investments are made solely
in
obligations of the United States or its agencies or
instrumentalities or guaranteed as to principal and interest by
the United States or its agencies or instrumentalities, debt
securities rated as investment grade by at least two nationally
recognized rating services, debt securities which the director of
commerce has determined to have been issued for the safety and
welfare of the residents of this state, and equity interests in
mutual funds that invest solely in some or all of the
above-listed
securities and involve no general liability, without
regard to
whether income earned on such accounts, securities, or
interests
is paid periodically or at the end of a term.
(K) "Director of commerce" may be read as the "division of
unclaimed funds" or the "superintendent of unclaimed funds."
Sec. 169.13. (A)(1) All agreements to pay a fee,
compensation,
commission, or other remuneration to locate,
deliver, recover, or
assist in the recovery of unclaimed funds
reported under section
169.03 of the Revised Code, entered into
within two years
immediately after the date a report is filed
under division (C) of
section 169.03 of the Revised Code, are
invalid.
(2) A person interested in entering into an agreement to locate, deliver, recover, or assist in the recovery of unclaimed funds for remuneration shall not initiate any contact with an owner during the two-year period immediately after the date a report is filed under division (C) of section 169.03 of the Revised Code. Failure to comply with this requirement is grounds for the invalidation of any such agreement between the person and the owner. (B) An agreement entered into any time after such two-year
period is valid only if both all of the following conditions are met: (1) The aggregate fee, compensation, commission, or other
remuneration agreed upon, paid directly or indirectly, is not in
excess of ten per cent of the amount recovered and paid to the
owner by the auditor of state; (2) The agreement is in writing, signed by the owner,
and notarized and
discloses all of the following items: (a) The name, address, and telephone number of the owner, as shown by the records of the person or entity in possession of the unclaimed funds or contents of a safe deposit box; (b) The name, address, and telephone number of the owner if the owner's name, address, or telephone number are different from the name, address, or telephone number of the owner as shown by the records of the person or entity in possession of the unclaimed funds or contents of a safe deposit box; (c) The nature and value of the property unclaimed funds or contents of a safe deposit box; (b)(d) The amount the owner will receive after the fee or
compensation has been subtracted;
(c)(e) The name and address of the person or entity in
possession of the property unclaimed funds or contents of a safe deposit box;
(f) That the auditor of state will pay the unclaimed funds directly to the owner or the director shall deliver the contents of a safe deposit box directly to the owner;
(g) That the person agreeing to locate, deliver, recover, or
assist in the recovery of the unclaimed funds or contents of a safe deposit box is not an employee or
agent of the director of commerce;
(h) That the director is not a party to the agreement;
(i) That the person agreeing to locate, deliver, recover,
or assist in the recovery of the unclaimed funds or contents of a safe deposit box holds a valid
certificate of registration issued by the director under section
169.16 of the Revised Code;
(j) The number designated on that certificate of
registration and the date the certificate of registration expires. (3) No agreement described in division (B)(2) of this section shall include a power of attorney for the payment of the unclaimed funds or delivery of the contents of a safe deposit box to any person other than the owner of the unclaimed funds or contents of a safe deposit box.
(4) If the agreement involves recovery of the contents of a safe deposit box, the agreement stipulates that the person receiving any fee, compensation, commission, or other remuneration for engaging in any activity for the purpose of locating, delivering, recovering, or assisting in the recovery of unclaimed funds or other items stored in a safe deposit box on behalf of any other person shall do all of the following:
(a) Make arrangements to have an appraiser and the director of commerce view the contents of the safe deposit box together, at a time mutually agreeable to the appraiser and director; (b) State that the value of the property in the safe deposit box is the amount established by the appraiser who viewed the safe deposit box contents;
(c) Base the fee, compensation, commission, or other remuneration for locating, delivering, recovering, or assisting in the recovery of unclaimed funds or other items stored in a safe deposit box on the appraised value established by the appraiser who viewed the safe deposit box contents. (C) No person shall receive a fee, compensation,
commission,
or other remuneration, or engage in any activity for
the purpose
of locating, delivering, recovering, or assisting in
the recovery
of unclaimed funds or contents of a safe deposit box, under an agreement that is
invalid under this
section. (D) Whoever violates division (C) of this section is
guilty
of a misdemeanor of the first degree for a first offense and of a
felony
of
the fifth degree for each subsequent offense A person who receives any fee, compensation, commission, or other remuneration for engaging in any activity for the purpose of locating, delivering, recovering, or assisting in the recovery of unclaimed funds or other items stored in a safe deposit box on behalf of any other person cannot function as an appraiser of the contents of the safe deposit box for purposes of division (B)(4) of this section. (E) The director shall not recognize or make any delivery and the auditor of state shall not make any payment pursuant to any power of attorney between an owner of the unclaimed funds or contents of a safe deposit box and the person with whom the owner entered into an agreement pursuant to division (B)(2) of this section to locate, deliver, recover, or assist in the recovery of the unclaimed funds or contents of a safe deposit box if that power of attorney is entered into on or after the effective date of this amendment and that power of attorney specifically provides for the payment of unclaimed funds or delivery of the contents of a safe deposit box to any person other than the owner of the unclaimed funds or contents of a safe deposit box. Nothing in this section shall be construed as prohibiting the payment of unclaimed funds or delivery of the contents of a safe deposit box to the legal representative of the owner of the unclaimed funds or contents of the safe deposit box. Notwithstanding the definition of "owner" specified in division (C) of section 169.01 of the Revised Code, for purposes of the payment of unclaimed funds or delivery of the contents of the safe deposit box, a person with whom an owner entered into an agreement under division (B)(2) of this section is not a legal representative.
Sec. 169.14. (A) Each person that files a claim with the
director of commerce, pursuant to an agreement entered into under
section 169.13 of the Revised Code, shall include with that claim
the number designated on the certificate of registration that is
issued to the person under section 169.16 of the Revised Code.
(B) The division of unclaimed funds shall not process any
claim described in division (A) of this section that does not
include the required certificate of registration number.
Sec. 169.16. (A) No person, on behalf of any other person,
shall engage in any activity for the purpose of locating,
delivering, recovering, or assisting in the recovery of unclaimed
funds or contents of a safe deposit box, and receive a fee, compensation, commission, or other
remuneration for such activity, without first having obtained a
certificate of registration from the director of commerce in
accordance with this section.
(B) An application for a certificate of registration shall
be in writing and in the form prescribed by the director. The
application shall be accompanied by a recent full-face color
photograph of the applicant and notarized character reference
letters from two reputable character witnesses. The application
shall, at a minimum, provide all of the following:
(1) The applicant's full name, home address, and work
address;
(2) The name, address, and telephone number of the two
character witnesses who have provided the character reference
letters;
(3) A statement that the applicant has not, during the
ten-year period immediately preceding the submission of the
application, violated division (A) of this section on or after the effective date of this section, or division (C)
of section 169.13 of the Revised Code, or been convicted of, or
pleaded guilty to, any felony or any offense involving moral
turpitude, including theft, attempted theft, falsification,
tampering with records, securing writings by deception, fraud,
forgery, and perjury;
(4) The notarized signature of the applicant immediately
following an acknowledgment that any false or perjured statement
subjects the applicant to criminal liability under section 2921.13
of the Revised Code.
(C) Upon the filing of the application with the division of
unclaimed funds, the division may investigate the applicant to
verify the information provided in the application and to
determine the applicant's eligibility for a certificate of
registration under this section. False information on an
application is grounds for the denial or revocation of the
applicant's certificate of registration.
(D) The director shall issue a certificate of registration
to an applicant if the director finds that the following
conditions are met:
(1) The applicant has not, during the ten-year period
immediately preceding the submission of the application, violated
division (A) of this section on or after the effective date of this section, or division (C) of section 169.13 of
the Revised Code, or been convicted of, or pleaded guilty to, any
felony or any offense involving moral turpitude, including theft,
attempted theft, falsification, tampering with records, securing
writings by deception, fraud, forgery, and perjury.
(2) The applicant's character and general fitness command
the confidence of the public and warrant the belief that the
applicant's business will be conducted honestly and fairly.
(E) The certificate of registration issued pursuant to
division (D) of this section may be renewed annually if the
director finds that the following conditions are met:
(1) The applicant submits a renewal application form
prescribed by the director.
(2) The applicant meets the conditions set forth in
division (D) of this section.
(3) The applicant's certificate of registration is not
subject to an order of revocation by the director.
Sec. 169.17. (A) After notice and an opportunity for a
hearing conducted in accordance with Chapter 119. of the Revised
Code, the director of commerce shall revoke or refuse to issue or
renew a certificate of registration if the director finds either of the following: (1) During the immediately preceding ten-year period, the person
violated division (A) of section 169.16 on or after the effective date of this section, or division (C) of section
169.13 of the Revised Code, or has been convicted of, or pleaded
guilty to, any felony or any offense involving moral turpitude,
including theft, attempted theft, falsification, tampering with
records, securing writings by deception, fraud, forgery, and
perjury. (2) The person's character and general fitness do not command the confidence of the public or warrant the belief that the person's business will be conducted honestly and fairly.
(B) The director may investigate alleged violations of
division (C) of section 169.13 or division (A) of section 169.16
of the Revised Code or complaints concerning any such violation.
The director may make application to the court of common pleas for
an order enjoining any such violation and, upon a showing by the
director that a person has committed or is about to commit such a
violation, the court shall grant an injunction, restraining order,
or other appropriate relief.
(C) In conducting any investigation pursuant to this
section, the director may compel, by subpoena, witnesses to
testify in relation to any matter over which the director has
jurisdiction and may require the production of any book, record,
or other document pertaining to that matter. If a person fails to
file any statement or report, obey any subpoena, give testimony,
produce any book, record, or other document as required by a
subpoena, or permit photocopying of any book, record, or other
document subpoenaed, the court of common pleas of any county in
this state, upon application made to it by the director, shall
compel obedience by attachment proceedings for contempt, as in the
case of disobedience of the requirements of a subpoena issued from
the court or a refusal to testify therein.
(D) If the director determines that a person is engaged in
or is believed to be engaged in activities that may constitute a
violation of division (C) of section 169.13 or division (A) of
section 169.16 of the Revised Code, the director, after notice and
a hearing conducted in accordance with Chapter 119. of the Revised
Code, may issue a cease and desist order. Such an order shall be
enforceable in the court of common pleas.
Sec. 169.99. (A) Whoever violates section 169.10 of the
Revised Code shall be
fined not more than five hundred dollars.
Each day of continuance of such
violation is a separate offense.
(B) Whoever violates division (C) of section 169.13 or
division (A) of section 169.16 of the Revised Code is guilty of a
misdemeanor of the first degree for a first offense and of a
felony of the fifth degree for any subsequent offense.
Sec. 1322.03. (A) An application for a certificate of
registration as a mortgage broker shall be in writing, under
oath,
and in the form prescribed by the superintendent of
financial
institutions. The application shall
be accompanied by
a
nonrefundable application fee of three hundred fifty dollars for
each
location
of an office to be maintained by the applicant in
accordance with
division (A) of section 1322.02 of the Revised
Code; however, an applicant that is registered under sections
1321.51 to 1321.60 of the Revised Code shall not be required to
pay an application fee. The application shall
provide all
of the
following: (1) The location or locations where the business is to be
transacted
and whether any location is a residence. If any
location
where the business is to be transacted is a residence,
the
application shall be accompanied by a certified copy of a
zoning
permit authorizing the use of the residence for commercial
purposes, or shall be accompanied by a written opinion or other
document issued by the county or political subdivision where the
residence is located certifying that the use of the residence to
transact business as a mortgage broker is not prohibited by the
county or political subdivision. The application also
shall be
accompanied by a photograph of
each location at which the business
will be transacted. (2)(a) In the case of a sole proprietor, the name and
address of the sole
proprietor; (b) In the case of a partnership, the name and
address of
each partner; (c) In the case of a corporation, the name and
address of
each shareholder owning five per cent or more of the
corporation; (d) In the case of any other entity, the name
and address of
any person that owns five per cent or more of the
entity that will
transact business as a mortgage broker. (3) If the applicant is a partnership,
corporation, limited
liability
company, or any other
business entity
or association,
the
applicant
shall designate
an employee or owner of the
applicant as the applicant's operations
manager. While
acting as
the operations manager, the employee or owner shall not
be
employed by any other mortgage broker. (4) Evidence that
the sole proprietor or
the person
designated on
the application pursuant to division (A)(3) of this
section, as
applicable, possesses at
least three years of
experience in
the
mortgage and
lending field, which experience may
include
employment with or as a mortgage
broker or with a
financial
institution, mortgage lending institution, or other
lending
institution, or possesses at least three years of other
experience
related specifically to the business of mortgage loans
that the
superintendent determines meets the requirements of
division
(A)(4) of this section; (5) On or after January 1, 2007, evidence that the sole proprietor or the person designated on the application pursuant to division (A)(3) of this section has successfully completed either of the following: (a) At least twenty-four hours of live classroom instruction in a course or program of study approved by the superintendent that consists of at least all of the following:
(i) Four hours of instruction concerning state and federal mortgage lending laws, which shall include no less than two hours on this chapter;
(ii) Four hours of instruction concerning the Ohio consumer sales practices act, Chapter 1345. of the Revised Code, as it applies to registrants and licensees;
(iii) Four hours of instruction concerning the loan application process;
(iv) Two hours of instruction concerning the underwriting process;
(v) Two hours of instruction concerning the secondary market for mortgage loans;
(vi) Four hours of instruction concerning the loan closing process;
(vii) Two hours of instruction covering basic mortgage financing concepts and terms;
(viii) Two hours of instruction concerning the ethical responsibilities of a registrant, including with respect to confidentiality, consumer counseling, and the duties and standards of care created in section 1322.081 of the Revised Code.
(b) Other post-secondary education related specifically to the business of mortgage loans that the superintendent determines meets the requirements of division (A)(5)(a) of this section. Division (A)(5) of this section does not apply to any applicant who has an application on file with the division of financial institutions prior to January 1, 2007.
The evidence submitted by the applicant pursuant to division (A)(5) of this section may be in the form of transcripts or a statement indicating that the applicant has, and will maintain, transcripts at the applicant's place of business for a period of five years for inspection by the superintendent at the superintendent's request. (6) Evidence of compliance with the surety bond
requirements
of section 1322.05 of the Revised Code and with sections 1322.01
to 1322.12 of the Revised Code; (7) In the case of a foreign
business entity,
evidence that
it
maintains a license
or registration pursuant to
Chapter 1703.,
1705., 1775., 1777., 1782., or 1783. of the Revised
Code
to
transact business in this state; (8) A statement
as to whether the applicant
or, to the
best
of the applicant's knowledge, any
shareholder, member,
partner,
operations manager, or
employee of the applicant has
been
convicted
of
or pleaded
guilty to
any criminal offense
involving
theft, receiving stolen
property, embezzlement,
forgery, fraud,
passing bad checks, money
laundering, or drug
trafficking, or any
criminal offense involving
money or
securities; (9)
A statement as to whether the applicant or, to the best
of the applicant's knowledge, any
shareholder, member, partner,
operations manager, or
employee of the applicant has been subject
to any adverse judgment
for conversion, embezzlement,
misappropriation of funds, fraud,
misfeasance or malfeasance, or
breach of fiduciary duty;
(10) Evidence that the applicant's operations manager has
successfully completed the examination required under division (A)
of section 1322.051 of the Revised Code;
(11) Any further information that the superintendent
requires. (B) Upon the filing of the application and payment of the
application fee, the superintendent of financial institutions shall investigate the
applicant as set forth in division (B) of this section.
(1) The superintendent shall request the superintendent of the bureau of criminal identification and investigation, or a vendor approved by the bureau, to conduct a criminal records
check based on the applicant's fingerprints in accordance with division (A)(11) of section 109.572 of the Revised Code. Notwithstanding division (J)(K) of section 121.08 of the Revised Code, the superintendent of financial institutions shall request that criminal record information from the federal bureau of investigation be obtained as part of the criminal records check. Any fee required under division (C)(3) of section 109.572 of the Revised Code shall be paid by the applicant.
(2) The superintendent shall conduct a civil
records check. (3) If, in order to issue a certificate of
registration
to
an applicant, additional investigation by the
superintendent
outside this
state is necessary, the superintendent may require
the applicant
to advance sufficient funds to pay the actual
expenses of the
investigation, if it appears that these expenses
will exceed three
hundred
fifty dollars. The superintendent shall
provide the
applicant
with an itemized statement of the actual
expenses that
the
applicant is required to pay. (C) The superintendent shall pay all funds advanced and application and renewal fees
and
penalties the superintendent receives pursuant to this section and
section
1322.04
of
the Revised Code to the
treasurer of state to the credit of the
consumer
finance fund
created in section 1321.21 of the Revised
Code. (D)
If an application for a certificate of registration
does
not contain all of the information required under division
(A) of
this section, and if that information is not submitted to
the
superintendent within ninety days after the superintendent
requests the information in writing, the superintendent may
consider the application withdrawn.
(E) A certificate of registration and the authority granted
under that certificate is not transferable or assignable and
cannot be franchised by contract or any other means.
(F) The registration requirements of this chapter apply to any person acting as a mortgage broker, and no person is exempt from the requirements of this chapter on the basis of prior work or employment as a mortgage broker.
Sec. 1322.031. (A) An application for a license as a loan
officer shall be in writing, under oath, and in the form
prescribed by the superintendent of financial institutions. The
application shall be accompanied by a nonrefundable application
fee of one hundred dollars and shall provide all of the following:
(1) The name and address of the applicant;
(2) A statement as to whether the applicant has been
convicted of
or pleaded guilty to any criminal offense involving
theft,
receiving stolen property, embezzlement, forgery, fraud,
passing
bad checks, money laundering, or drug trafficking, or any
criminal
offense involving money or securities;
(3) A statement as to whether the applicant has been subject
to
an adverse judgment for conversion, embezzlement,
misappropriation
of funds, fraud, misfeasance or malfeasance, or
breach of
fiduciary duty;
(4) For loan officer applications submitted on or after January 1, 2007, proof, as determined by the superintendent, that the applicant has successfully completed at least twenty-four hours of live classroom instruction in a course or program of study approved by the superintendent that consists of at least all of the following:
(a) Four hours of instruction concerning state and federal mortgage lending laws, which shall include no less than two hours on this chapter;
(b) Four hours of instruction concerning the Ohio consumer sales practices act, Chapter 1345. of the Revised Code, as it applies to registrants and licensees;
(c) Four hours of instruction concerning the loan application process;
(d) Two hours of instruction concerning the underwriting process;
(e) Two hours of instruction concerning the secondary market for mortgage loans;
(f) Four hours of instruction concerning the loan closing process;
(g) Two hours of instruction covering basic mortgage financing concepts and terms;
(h) Two hours of instruction concerning the ethical responsibilities of a licensee, including with respect to confidentiality, consumer counseling, and the duties and standards of care created in section 1322.081 of the Revised Code.
Division (A)(4) of this section does not apply to any applicant who has an application on file with the division of financial institutions prior to January 1, 2007.
The proof submitted by the applicant pursuant to division (A)(4) of this section may be in the form of transcripts or a statement indicating that the applicant has, and will maintain, transcripts at the applicant's place of business for a period of five years for inspection by the superintendent at the superintendent's request. (5) Any further information that the superintendent
requires.
(B) Upon the filing of the application and payment of the
application fee, the superintendent of financial institutions shall investigate the
applicant as set forth in division (B) of this section. (1) The superintendent shall request the superintendent of the bureau of criminal identification and investigation, or a vendor approved by the bureau, to conduct a criminal records
check based on the applicant's fingerprints in accordance with division (A)(11) of section 109.572 of the Revised Code. Notwithstanding division (J)(K) of section 121.08 of the Revised Code, the superintendent of financial institutions shall request that criminal record information from the federal bureau of investigation be obtained as part of the criminal records check. Any fee required under division (C)(3) of section 109.572 of the Revised Code shall be paid by the applicant.
(2) The superintendent shall conduct a civil
records check. (3) If, in order to issue a license to an applicant, additional
investigation by the superintendent outside this state is
necessary, the superintendent may require the applicant to advance
sufficient funds to pay the actual expenses of the investigation,
if it appears that these expenses will exceed one hundred dollars.
The superintendent shall provide the applicant with an
itemized
statement of the actual expenses that the applicant is
required to
pay.
(C) The superintendent shall pay all funds advanced and application and renewal fees and
penalties the superintendent receives pursuant to this section and
section 1322.041 of
the Revised Code to the
treasurer of state to the credit of the
consumer finance fund
created in section 1321.21 of the Revised
Code.
(D) If an application for a license does not contain all of
the information required under division (A) of this section, and
if that information is not submitted to the superintendent within
ninety days after the superintendent requests the information in
writing, the superintendent may consider the application
withdrawn.
(E)(1) The business of a loan officer shall principally be
transacted at an office of the employing mortgage broker, which
office is
registered in accordance with division (A) of section
1322.02
of the Revised Code. Each original license shall be
deposited
with and maintained by the employing mortgage broker at
the
mortgage broker's main office. A copy of the license shall be
maintained and displayed at the office where the loan officer
principally
transacts business.
(2) If a loan officer's employment is terminated, the
mortgage
broker shall return the original license to the
superintendent
within five business days after the termination.
The licensee may
request the transfer of the license to another
mortgage broker by
submitting a relocation application, along with
a fifteen dollar
fee, to the superintendent or may request the
superintendent in
writing to hold the license in escrow for a
period not to exceed
one year. Any licensee whose license is held
in escrow shall
cease activity as a loan officer.
A mortgage broker may employ a loan officer on a temporary
basis pending the transfer of the loan officer's license to the
mortgage broker, if the mortgage broker receives written
confirmation from the superintendent that the loan officer is
licensed under sections 1322.01 to 1322.12 of the Revised Code. (F)
A license, or the authority granted under that license,
is
not assignable and cannot be franchised by
contract or any
other means.
Sec. 4763.05. (A)(1)(a) A person shall make application for
an
initial state-certified general real estate appraiser
certificate,
an initial state-certified residential
real estate appraiser
certificate, an initial state-licensed
residential real estate
appraiser license, or an initial state-registered real estate
appraiser assistant registration in writing to the superintendent
of real
estate
on a form the superintendent prescribes. The
application shall
include the address of the applicant's principal
place of
business and all other addresses at which the applicant
currently engages in
the business of preparing real estate
appraisals and the address
of the applicant's current residence.
The superintendent shall
retain the applicant's current residence
address in a separate
record which shall not constitute a public
record for purposes of
section 149.03 of the Revised Code. The
application shall
indicate whether the applicant seeks
certification as a general
real estate appraiser or as a
residential real estate appraiser,
licensure as a residential real
estate
appraiser, or registration as a real estate appraiser
assistant
and be accompanied by the prescribed examination and
certification, registration, or licensure fees set forth in
section 4763.09 of
the Revised Code. The application also shall
include a fingerprint of the applicant; a pledge,
signed by the applicant, that the applicant will
comply with the
standards
set forth in this chapter; and a
statement that the applicant
understands the
types of misconduct
for which disciplinary proceedings may be
initiated against the
applicant pursuant to this chapter.
(b) Upon the filing of an application and payment of any examination and certification, registration, or licensure fees, the superintendent of real estate shall request the superintendent of the bureau of criminal identification and investigation, or a vendor approved by the bureau, to conduct a criminal records check based on the applicant's fingerprints in accordance with division (A)(11) of section 109.572 of the Revised Code. Notwithstanding division (J)(K) of section 121.08 of the Revised Code, the superintendent of real estate shall request that criminal record information from the federal bureau of investigation be obtained as part of the criminal records check. Any fee required under division (C)(3) of section 109.572 of the Revised Code shall be paid by the applicant.
(2) For purposes of providing funding for the real estate
appraiser recovery fund established by section 4763.16 of the
Revised Code, the real estate appraiser board shall levy an
assessment against each person issued an initial certificate,
registration, or
license and against current licensees,
registrants, and
certificate holders, as
required by board rule.
The assessment is in addition to the
application and examination
fees for initial applicants required
by division (A)(1) of this
section and the renewal fees required
for current certificate
holders, registrants, and licensees.
The
superintendent of real estate shall
deposit the assessment into the state
treasury to the credit of
the real estate appraiser recovery
fund. The assessment for
initial certificate holders,
registrants, and
licensees shall be
paid prior to the issuance of a certificate,
registration, or
license, and for current certificate holders,
registrants, and
licensees, at
the time of renewal. (B) An applicant for an initial general real estate
appraiser
certificate shall possess at least thirty months of
experience in real
estate appraisal, or any equivalent experience
the board prescribes. An
applicant for a
residential real estate
appraiser certificate or residential real
estate appraiser license
shall possess at least two years of experience in real estate
appraisal, or any equivalent experience the board prescribes. In
addition to any other information required by the board, the
applicant shall furnish, under oath, a detailed listing of the
appraisal reports or file memoranda for each year for which
experience is claimed and, upon request of the superintendent or
the board, shall make available for examination a sample of the
appraisal reports prepared by the applicant in the course of
the
applicant's practice. (C)(1) Except as provided in division (C)(2) of this
section, an applicant for an initial certificate, registration,
or
license shall
be at least eighteen years of age, honest, truthful,
and of good
reputation and shall present satisfactory evidence to
the
superintendent of the following, as
appropriate: (a) If the applicant is seeking a state-certified general
real estate appraiser certificate, that the applicant has
successfully
completed at least one hundred sixty-five classroom
hours
of courses
in subjects related to real estate appraisal,
including at least one
course devoted exclusively to federal,
state, and municipal fair housing
law, presented by a
nationally
recognized appraisal organization, an institution of
higher
education, a
career school registered by the state
board of
career colleges and
schools, a state or federal
commission or agency, or any other
organization that represents
the interests of financial
institutions or real estate brokers,
appraisers, or agents and
that provides appraisal education, plus
fifteen classroom hours
related to standards of professional
practice and the provisions
of this chapter; (b) If the applicant is seeking a state-certified
residential real estate
appraiser certificate, that the applicant
has successfully completed at least
one hundred
five classroom
hours of courses in subjects related to real estate
appraisal,
including at least one course devoted exclusively to
federal,
state, and municipal fair housing law,
presented by a nationally
recognized appraisal organization, an institution of
higher
education, a
career school registered by the state
board of
career colleges and
schools, or any other organization that represents the
interests
of financial institutions or real estate brokers, appraisers, or
agents and that provides appraisal education, plus fifteen
classroom hours
related to standards of professional practice and
the provisions of this
chapter; (c) If the applicant is seeking a state-licensed
residential
real estate appraiser license, that the applicant has
successfully
completed at least seventy-five classroom
hours of courses
in
subjects related to real estate appraisal, including at least one
course devoted exclusively to federal,
state, and municipal fair
housing law,
presented by a
nationally recognized appraisal
organization, an institution of
higher education, a
career school registered by the state
board of
career colleges and schools, a state or federal
commission or agency, or any other organization that represents
the interests of financial institutions or real estate brokers,
appraisers, or agents and that provides appraisal education, plus
fifteen classroom hours related to standards of professional
practice and the provisions of this chapter; (d) If the applicant is seeking a state-registered real
estate
appraiser assistant registration, that the applicant has
successfully
completed at least seventy-five classroom
hours of
courses in subjects related to real estate appraisal,
including at
least one course devoted exclusively to federal,
state, and
municipal fair housing law,
presented by a nationally recognized
appraisal
organization, an institution of higher education, a
career school
registered by the state board of
career colleges and schools, or
any other
organization that represents the interests of financial
institutions or real
estate brokers, appraisers, or agents, and
that provides appraisal education
that included at least fifteen
classroom hours of
instruction related to standards of
professional practice and the requirements of this chapter and the
rules
adopted under this chapter. (2) Each person who files an application for an initial
certificate or license within one year of the date established by
the board as the first date on which applications will be
accepted
under this section, which date shall be no later than
September 1,
1990, and who, at the time of filing that
application, does not
satisfy the educational requirements for
the certification or
licensure sought of either division
(C)(1)(a) or (b) of this
section is exempt from those educational
requirements for the term
of the initial certification or
licensure. In applying for a
renewal certificate or license
pursuant to section 4763.06 of the
Revised Code, a certificate
holder or licensee who was exempted
from the educational
requirements of division (C)(1)(a) or (b) of
this section when
applying for the initial certificate or license
shall
present
satisfactory evidence to the superintendent that the
certificate
holder or licensee has completed
the educational
requirements for the certification or licensure
to be renewed of
one of those divisions before the renewal
certificate or license
may be issued. (D) An applicant for an initial general real estate
appraiser or
residential real estate appraiser certificate or
residential real
estate appraiser license
shall take and
successfully complete a written examination in
order to qualify
for the certificate or license. The examination
shall require the
applicant to demonstrate all of the following: (1) Appropriate knowledge of technical terms commonly used
in or related to real estate appraising, appraisal report
writing,
and the economic concepts applicable to real estate; (2) Understanding of the principles of land economics,
real
estate appraisal processes, and problems likely to be
encountered
in gathering, interpreting, and processing of data in
carrying out
appraisal disciplines; (3) Understanding of the standards for the development and
communication of real estate appraisals as provided in this
chapter and the rules adopted thereunder; (4) Knowledge of theories of depreciation, cost
estimating,
methods of capitalization, direct sales comparison,
and the
mathematics of real estate appraisal that are appropriate
for the
certification or licensure for which the applicant has
applied; (5) Knowledge of other principles and procedures as
appropriate for the certification or license; (6) Basic understanding of real estate law; (7) Understanding of the types of misconduct for which
disciplinary proceedings may be initiated against a certificate
holder and licensee. (E)(1) A nonresident, natural person of this state who
has
complied with this section may obtain a certificate,
registration,
or
license. The board shall adopt rules relating to the
certification, registration, and licensure of a nonresident
applicant whose
state of residence the board determines to have
certification,
registration, or
licensure requirements that are
substantially similar to those
set forth in this chapter and the
rules adopted thereunder. (2) The board shall recognize on a temporary basis a certification or license issued in another state and shall register on a temporary basis an appraiser who is certified or licensed in another state if all of the following apply: (a) The temporary registration is to perform an appraisal assignment that is part of a federally related transaction. (b) The appraiser's business in this state is of a temporary nature. (c) The appraiser registers with the board pursuant to this division. An appraiser who is certified or licensed in another state shall register with the board for temporary practice before performing an appraisal assignment in this state in connection with a federally related transaction. The board shall adopt rules relating to registration for the temporary
recognition of certification and licensure of appraisers from another state. The registration for temporary recognition of certified or licensed appraisers from another state shall not authorize completion of more than one appraisal assignment in this state. The board shall not issue more
than two registrations for temporary practice to any one applicant in any calendar
year. (3) In addition to any other information required to be
submitted with the nonresident applicant's or appraiser's
application for a certificate, registration,
license, or
temporary recognition of a
certificate or license, each nonresident applicant or
appraiser
shall submit a statement consenting to the service of
process upon
the nonresident applicant or appraiser by means
of delivering that
process to the
secretary of state if, in an action against the
applicant,
certificate holder, registrant, or licensee arising
from the
applicant's,
certificate holder's, registrant's, or
licensee's activities as a
certificate
holder, registrant, or
licensee, the plaintiff, in the exercise
of due
diligence, cannot
effect personal service upon the applicant,
certificate holder,
registrant, or licensee. (F) The superintendent shall not issue a certificate,
registration,
or license to, or recognize on a temporary basis an appraiser from another state that is a
corporation,
partnership, or association. This prohibition shall
not be
construed to prevent a certificate holder or licensee from
signing an appraisal report on behalf of a corporation,
partnership, or association. (G) Every person licensed, registered, or certified under
this
chapter
shall notify the superintendent, on a form provided
by the
superintendent, of a change in the address of the
licensee's,
registrant's, or certificate holder's principal place
of business or
residence within thirty days of the change. If a
licensee's, registrant's, or
certificate holder's
license,
registration, or certificate is
revoked or not renewed, the
licensee, registrant, or
certificate holder
immediately shall
return the annual and any renewal
certificate,
registration, or
license to the superintendent. (H)(1) The superintendent shall not issue a certificate,
registration,
or license to any
person, or recognize on a temporary basis an appraiser from another state, who
does not meet applicable minimum criteria for state
certification,
registration, or licensure prescribed by federal
law or rule. (2) The superintendent shall not issue a general real estate appraiser certificate, residential real estate appraiser certificate, residential real estate appraiser license, or real estate appraiser assistant registration to any person who has been convicted of or pleaded guilty to any criminal offense involving theft, receiving stolen property, embezzlement, forgery, fraud, passing bad checks, money laundering, or drug trafficking, or any criminal offense involving money or securities, including a violation of an existing or former law of this state, any other state, or the United States that substantially is equivalent to such an offense. However, if the applicant has pleaded guilty to or been convicted of such an offense, the superintendent shall not consider the offense if the applicant has proven to the superintendent, by a preponderance of the evidence, that the applicant's activities and employment record since the conviction show that the applicant is honest, truthful, and of good reputation, and there is no basis in fact for believing that the applicant will commit such an offense again.
Section 2. That existing sections 121.04, 121.08, 169.01,
169.13, 169.99, 1322.03, 1322.031, and 4763.05 of the Revised Code are hereby repealed.
Section 3. Sections 169.13 and 169.14 of the Revised Code, as
amended or enacted by this act, shall apply only to agreements
that are entered into on or after the effective date of this act.
Section 4. All of the following provisions of this act shall take effect sixty days after the effective date of this act:
(A) Division (B)(2)(i) and (j) of section 169.13 of the Revised Code;
(B) Section 169.14 of the Revised Code;
(C) Division (A) of section 169.16 of the Revised Code;
(D) Division (B) of section 169.99 of the Revised Code.
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