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Rule

Ohio Administrative Rules (2019)

Notary Law Update: Ohio Administrative Rules (2019)

State: Ohio

Summary:

The Ohio Secretary of State publishes rules to implement the Notary Public Modernization Act of 2018.

Signed:  September 22, 2019

Effective:  September 22, 2019

Chapter: N/A

Affects:

Creates Sections 111:6-1-01 through 111:6-1-07 in the Ohio Administrative Code.

Changes:

Definitions

  1. Defines “applicant,” “authorized education and testing provider,” “credential analysis,” “disqualifying offense,” “dynamic knowledge-based authentication,” “document,” “electronic document,” “electronic notarial act,” “electronic signature,” “exclusive control,” “notarial act,” “notarial certificate,” “Notary commission,” “ Notary Public,” “official electronic signature,” “online notarization,” “online notarization system,” “online Notary Public,” “principal,” “real time,” “record” and “remote presentation.”

Notary Commission, Education and Examination

  1. Requires an authorized education and testing provider to be approved by the Secretary of State and submit a request to be approved to the Secretary.
  2. Requires the Secretary of State to provide information on its website to inform applicants of authorized education and testing providers.
  3. Provides the requirements for Notary education curriculum as follows: (a) the terms of a Notary commission; (b) requirements to update and renew a commission; (c) reporting requirement if a Notary is convicted or pleads guilty or no contest to a disqualifying offense; (d) Geographic jurisdiction of a Notary; (e) maintaining a notarial journal; (f) requirements for a Notary seal; (g) what constitutes a notarial act that complies with applicable Ohio law and administrative rules; (h) how to perform a compliant notarial act, including examples involving commonly notarized documents; (i) administration of an oath or affirmation; (j) verifying the identity of the principal; (k) the taking of an acknowledgment; (l) the administration of a jurat; (m) the manner of taking depositions; (n) signatures by mark; (o) method to notarize a document signed by a designated alternative signer; (p) overview and examples of prohibited acts; (q) explanation of electronic notarizations; (r) what constitutes unauthorized immigration consultant acts and the unauthorized practice of law by a Notary; (s) the fees a Notary is permitted to charge; (t) mandatory reporting that is required of a Notary; (u) the conditions under which a commission may be revoked; and (v) investigation and disciplinary processes.
  4. Requires the curriculum for online Notary authorizations education to include, but not be limited to, all notarial rules, procedures and ethical obligations pertaining to online notarizations under ORC sections 147.60 to 147.66.
  5. Requires the curriculum for continuing education for commissions and online authorizations to include, but not be limited to, any updates to Ohio Notary law or the administrative rules.
  6. Provides that the examination for a Notary commission must include questions on the required curriculum topics in the rules.
  7. Requires an authorized education and testing provider to notify the Secretary of State of material modifications to its education program and testing at least 10 days prior to implementing the modifications and must only implement the modifications after receiving the approval of the Secretary.
  8. Requires an authorized education and testing provider to electronically share data related to an applicant’s education completion and testing results with the Secretary of State, upon request of the Secretary.
  9. Requires non-attorney Notary commission applicants to complete a 3-hour education program and pass a test administered by an authorized provider.
  10. Requires a non-attorney applicant to submit to the authorized provider a fee of $130 for the required education and testing.
  11. Provides that an applicant who fails the test may apply to retake the exam no sooner than 30 days following the date of his or her last examination, and no later than 6 months following the issuance of the criminal records check.
  12. Provides that should an applicant fail the exam a second time, the applicant must re-start the process with a new application including paying a new $130 fee.
  13. Provides that an applicant must pay a fee of $15 to the Secretary of State upon filing the application for a commission.
  14. Requires attorney Notary commission applicants to successfully complete a three-hour education program conducted by an authorized provider.
  15. Requires attorney Notary commission applicants to submit to the authorized provider a fee of $75 for the required education course and pay a fee of $15 to the Secretary of State upon filing the application for a commission.

Online Notary Authorization

  1. Requires a non-attorney Notary commission renewal applicant to successfully complete a 1-hour education program, no earlier than 12 months prior to the expiration of their commission, conducted by an authorized provider, at a cost of $45.
  2. Requires an applicant for authorization as an online Notary to successfully complete a 2-hour education program and pass a test administered by an authorized provider at a cost of $250.
  3. Provides that if an applicant fails the test required for authorization as an online Notary, the applicant may apply to retake the exam no sooner than 30 days following the date of the applicant’s most recent examination, and no later than 6 months following the date of completion of the education program.
  4. Provides that if an applicant fails the exam required for authorization as an online Notary a second time, the applicant must re-start the process with a new application including a new $250 fee.
  5. Provides that an applicant for authorization as an online Notary must pay a fee of $15 to the Secretary of State upon filing the application as an online Notary.
  6. Provides that a non-attorney Notary authorized to perform online notarial acts may apply to renew the authorization to perform online notarizations no earlier than 3 months prior to the expiration of the applicant’s Notary commission.
  7. Provides that an attorney Notary authorized to perform online notarial acts may apply to renew the authorization to perform online notarizations no earlier than 3 months prior to the expiration of the online Notary authorization.
  8. Requires an applicant for renewal of the online Notary authorization to successfully complete a 1-hour education program, no earlier than 12 months prior to the expiration of their commission, conducted by an authorized provider at a cost of $60.
  9. Requires an applicant for renewal of the online Notary authorization must pay a fee of $20 to the Secretary of State upon filing the application for a commission.

Electronic Notarial Certificate

  1. Provides that the notarial certificate forms provided in ORC section 147.55 may be used and are sufficient for their respective purposes under any section of the Revised Code for an electronic or online notarial act, if the forms include these or similar statements, as applicable: (a) "This certificate pertains to an electronic notarial act performed with the principal(s) in my physical presence"; or (b) "This certificate pertains to an electronic notarial act performed with the principal(s) appearing online using audio-video communication."

Online Notarial Acts

  1. Requires an online Notary to be physically in Ohio when performing an online notarization.
  2. Requires an online notarization to be performed using an online notarization system that meets the requirements in the rules
  3. Clarifies that a credible witness who identifies a principal for an online notarization may appear before the online Notary by means of communication technology.
  4. Requires credential analysis used for an online notarization to utilize public or private data sources to confirm the validity of an identification credential and must use automated software processes to aid the online Notary in verifying the identity of a remotely located individual.
  5. Requires credential analysis used for an online notarization to ensure that the identification credential passes an authenticity test, consistent with sound commercial practices that: (a) use appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features; (b) use appropriate technologies to confirm that the identification credential is not fraudulent or inappropriately modified; (c) use information held or published by the issuing source or an authoritative source, as available, to confirm the validity of identification credential details; and (d) provide output of the authenticity test to the online Notary .
  6. Requires credential analysis used for an online notarization to enable the online Notary to visually compare for consistency: (a) the information and photograph on the presented credential, and (b) the remotely located individual as viewed by the online Notary in real-time through communication technology;
  7. Requires credential analysis used for an online notarization to require a government-issued identification credential that: (a) is an unexpired government-issued identification credential that contains the photograph and signature of the individual; and (b) may be imaged, photographed, and video recorded under applicable state and federal law; and (c) can be subjected to credential analysis.
  8. Requires credential analysis used for an online notarization to include an image capture procedure that confirms that: (a) the remotely located individual is in possession of the credential at the time of the notarial act; (b) credential images submitted for credential analysis have not been manipulated; and (c) credential images match the credential in the possession of the remotely located individual.
  9. Requires credential analysis used for an online notarization to require the captured image of the identification credential to: (a) be of sufficient image resolution to perform credential analysis in accordance with the requirements of this subsection; (b) be of sufficient image resolution to enable visual inspection of the credential by the Notary; and (c) include all images necessary to perform visual inspection and credential analysis in accordance with the requirements of this subsection, including the identity page of any passport and the front and back images of any identification card.
  10. Requires identity proofing used for an online notarization to be performed by means of a knowledge-based authentication that meets the following requirements: (a) each remotely located individual must answer a quiz consisting of a minimum of five questions related to the remotely located individual’s personal history or identity, formulated from public or private data sources; (b) each question must have a minimum of five possible answer choices; (c) at least 80% of the questions must be answered correctly; (d) all questions must be answered within two minutes; (e) if the remotely located individual fails the first attempt, the individual may retake the quiz two times within 48 hours; (f) during a retake of the quiz, a minimum of 40% of the prior questions must be replaced; (g) if the remotely located individual fails the second attempt, the individual is not permitted to retry with the same Notary or the same third person providing the identity proofing service within 24 hours of the second failed attempt; and (h) the online Notary must not be able to see or record the questions or answers.
  11. Requires an online notarization system used for an online notarization to meet the following criteria: (a) the persons communicating must simultaneously see and speak to one another; (b) the signal transmission must be live, real time; (c) the signal transmission must be secure from interception or access by anyone other than the persons communicating; (d) the technology must provide sufficient audio clarity and video resolution to enable the Notary to communicate with the signer and utilize the permissible signer identification methods; (e) the system must provide confirmation that the electronic document presented is the same as the electronic document notarized; (f) allow for the affixation of the notarial certificate, signature and seal; (g) allow for viewing the notarial certificate, signature and seal; (h) provide a method for determining if the electronic document has been altered after the electronic notarial seal has been affixed and the electronic notarial act has been completed; and (i) provide a method of generating a paper copy of the document including the notarial certificate, signature and seal and any other document associated with the execution of the notarial act.
  12. Stipulates that if the signer or online Notary must exit the audio-video communication session, the audio-video communication link is broken, or the resolution or quality of the transmission becomes such that the electronic Notary believes the process has been compromised and cannot be completed, the identity authentication process and any incomplete online notarial acts must be started from the beginning.
  13. Requires an online Notary to refuse to perform an online notarization if: (a) the online Notary is unable to verify the identity of the principal; (b) the online Notary is unable to verify the security of the two-way audiovisual transmission; (c) the signature of the principal cannot be attached to the electronic document; or (d) the online notarization system or technology cannot render the notarial act tamper-evident.

Notary Public Complaints and Investigations

  1. Provides that a complaint against a Notary that is filed in writing with the Secretary of State must include the Notary’s name, commission number, if known, an explanation of the reason for the complaint and any citation of the statute the Notary is alleged to have violated, a copy of each document related to the complaint, and the name, phone number, email address and signature of the complainant.
  2. Provides that upon receiving a complaint or if the Secretary of State has a reasonable belief that the Notary has violated Chapter 147 of the Revised Code, the Secretary shall designate an agent to investigate the violation.
  3. Provides that if the Secretary of State determines a violation of Chapter 147 of the Revised Code may have, or may occur, and wants to take action with respect to a possible violation, the Secretary shall send notice of such a determination to the complainant and the respondent (Notary who is investigated).
  4. Provides that a Notary who is investigated has 14 days to request a hearing from the Secretary of State upon receiving a determination from the Secretary that it wants to take action in response to a complaint, and further provides that the Notary shall send the request to the director of business services in the Secretary’s office.
  5. Provides that the Secretary of State shall schedule a hearing at the request of a Notary who requests a hearing within 15 days after receiving the request for a hearing and promptly notify the Notary and appoint a hearing officer that is an attorney and knowledgeable of Ohio Notary laws.
  6. Provides that the hearing officer may continue the hearing date at the request of the Secretary of State or the Notary who is being investigated and must conduct the hearing in accordance with ORC Chapter 119.
  7. Allows a Notary who is being investigated to answer the complaint prior to the hearing by filing a written answer with the Secretary of State.
  8. Provides that any subpoenas for the hearing shall be requested from the hearing officer for issuance by the Secretary of State.
  9. Authorizes the hearing officer to receive evidence from the Secretary of state and the Notary who is being investigated.
  10. Authorizes the Notary being investigated to be represented by counsel; however, counsel is not required.
  11. Requires a stenographic transcript of the oral testimony at the hearing involving a complaint against a Notary to be made.
  12. Requires the hearing officer to issue a report and recommendation to the Secretary of State within 14 days after completion of the hearing and be forwarded by electronic means and certified mail to the Notary being investigated or his or her counsel.
  13. Authorizes the hearing officer to recommend any of the following remedies if the officer determines a violation of ORC Chapter 147 is found: (a) no action be taken; (b) revoke the Notary’s commission; (c) suspend the Notary’s commission for a specified period of time or until fulfillment of a condition, such as retraining, or both; or (d) issue a letter of admonition to the Notary that shall be placed in the Notary’s record.
  14. Allows the Notary who is investigated to file written objections to the hearing officer’s report with the Secretary of State within 10 days of receipt of the report.
  15. Requires the Secretary to render a decision within 20 days after receipt of the hearing officer’s recommendation and send the decision to the Notary who is investigated or his or her counsel by certified mail.
  16. Provides that if a hearing is not timely requested by the Notary being investigated, the Secretary of State may take the following action: (a) revoke the Notary Public’s commission; (b) suspend the Notary Public’s commission for a specified period of time or until fulfillment of a condition, such as retraining, or both; or (c) issue a letter of admonition to the Notary that shall be placed in the Notary Public’s record.
  17. Authorizes the Notary who is investigated to appeal an adverse decision of the Secretary of State under ORC 119.12.
Analysis:

The Ohio Secretary of State has issued administrative rules implementing the Notary Public Modernization Act (Senate Bill 263 of 2018), effective September 22, 2019. The new law transferred authority to commission and regulate Notaries from the local county courts of common pleas to the Secretary’s office. Because of this change, rules related to commissioning, education, examinations and disciplinary proceedings needed to be issued. The new rules also covered procedures for applying for authorization as an online Notary and performing online notarial acts.

Read the administrative rules.

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