BILL ANALYSIS
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|Hearing Date:April 20, 2009 |Bill No:SB |
| |496 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 496Author:Maldonado
As Amended: April 15, 2009 Fiscal: Yes
SUBJECT: Real estate: sex offenders.
SUMMARY: Authorizes the Real Estate Commissioner to deny an
application for a real estate license, or revoke, non-renew or
refuse to reinstate the license for a person who is a registered
sex offender, with specified exceptions.
Existing law, the Business and Professions Code, requires the
Dental Board of California and the Medical Board of California to
deny an application for licensure, renewal or reinstatement of, or
to revoke the license of an individual who is required to register
as a sex offender.
Existing law, the Real Estate Law:
1)Establishes in the Business, Transportation and Housing Agency
(BT&H), the Department of Real Estate (DRE), the chief officer
of which is the Real Estate Commissioner and specifies that the
Commissioner, through the Department, is responsible for the
regulation of real estate transactions and licensure of real
estate agents, brokers and salespersons.
2)Specifies that the Commissioner shall enforce the Real Estate
Law and has the full power to regulate and control the issuance
and revocation, both temporary and permanent, of all licenses to
be issued and to perform all other acts and duties provided
under the Real Estate Law and that are necessary for its
enforcement.
3)Specifies that a licensed real estate broker is a person
licensed as a broker, and that a real estate salesperson is a
person licensed as a salesperson pursuant to the Real Estate
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Law.
4)Provides for specific grounds upon which a license of any real
estate licensee may be denied, revoked or suspended including
entering a plea of guilty, or if the licensee has been found
guilty of, or been convicted of a felony, or a crime
substantially related to the qualifications, functions, or
duties of a real estate licensee, after being provided a due
process hearing.
5)Provides that the Commissioner may, with out a hearing , suspend
the license of any person who procured the issuance of a real
estate license by fraud, misrepresentation, deceit, or by making
any material misstatement of fact.
Existing law, the Penal Code, requires a person who is convicted
of specified offenses to register with local law enforcement as a
sex offender where they reside or are located, and to update that
registration, as specified. Willful failure
to register as required is a misdemeanor or felony, depending on
the underlying offense.
Existing law, other related laws regarding sex offenders:
1)Requires the Department of Justice (DOJ) to make available to
the public via an Internet Website certain information relating
to certain registered sex offenders, including the address at
which the person resides, as specified.
2)Requires leases and rental agreements for residential real
property to contain a notice regarding information about
specified registered sex offenders made available to the public
via an Internet Website maintained by the DOJ.
3)Prohibits a parolee who is a registered sex offender during
their period of parole from residing in any single family
dwelling with another person also registered as a sex offender
unless they are legally related, as specified.
4)Makes it unlawful for a person who is a registered sex offender
to reside within 2,000 feet of a public or private school, or
park where children regularly gather and that if they come to
any school building or upon any school ground without lawful
business and written permission is guilty of a misdemeanor.
5)Prohibits any person who is a registered sex offender from being
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permitted by the governing board of any school district to
perform specified duties relating to the supervision of pupils,
or to serve as a nonteaching volunteer aid, as specified.
6)Provides that no person shall be granted physical or legal
custody of, or unsupervised visitation with, a child if the
person is required to be registered as a sex offender, if the
victim was a minor, or other related crimes regarding a minor,
unless the court grants such permission.
This bill:
1)With regard to an individual who is required to register as a
sex offender, the Commissioner shall deny an application as a
real estate salesperson or real estate broker, revoke the
license, or not renew or reinstate the individual's license, and
the Commissioner shall not stay the license denial or the
revocation and place the license on probation.
2)Requires the individual that is required to register as a sex
offender to notify the Commissioner within five days of the
imposition of sentence.
3)Provides that the automatic denial, revocation, refusal to renew
or reinstate a salesperson or real estate broker's license,
without a hearing, does not apply to the following:
a) An individual who has been relieved of his or her duty to
register as a sex offender.
b) An individual who is required to register as a sex
offender because of any offense involving indecent exposure,
which is a misdemeanor.
c) Any administrative adjudication proceeding involving a
revocation or denial of license that is fully adjudicated
prior to January 1, 2010. However, a petition for
reinstatement of a revoked or surrendered license shall be
considered a new proceeding, and the prohibition against
reinstating a license to an individual who is required to
register as a sex offender shall be applicable.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
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1.Purpose. This measure is sponsored by the Author. According to
the Author, this bill would prevent registered sex offenders
from obtaining real estate licenses. Current law allows these
dangerous predators to get a real estate license. The Author
states that real estate agents have complete access to a
person's home. When a house goes on the market, real estate
agents obtain keys to a person's house. They also know if the
house is occupied by a family and the ages of any children and
room in which they sleep. In essence, sellers are unknowingly
putting the keys to their homes in the hands of sex offenders.
The Author further points out, that under current law sex
offenders are not allowed to be employed in professions what
would allow then to be around children unsupervised.
Additionally, any new home buyer is provided with information on
the Megan's Law Website, which allows people to search for sex
offenders in their neighborhoods. But unfortunately, a loophole
allows these same sex offenders unfettered access to families'
homes.
The Author states that this is common sense legislation that will
help protect countless children. "We must make sure that we
take appropriate measures to ensure that we do not unwittingly
give sex offenders the keys to a family's home."
2.Background. SB 252 (Aanestad, Chapter 13, Statutes of 2007)
provided similar language and established similar objectives
regarding any individual seeking a license or currently holding
a license in dentistry from the Dental Board of California. SB
252 was modeled after AB 236 (Bermudez, Chapter 348, Statues
2003) which prohibits any person registered as a sex offender
from being licensed under the Medical Practices Act. Both of
these measures provided for the inclusion of an exception for
those who are required to register as a sex offender, solely
because of a misdemeanor conviction for indecent exposure under
Penal Code Section 314.
Distinct from this bill and SB 252, AB 236 authorizes the revoked
licensee,
5 years after the revocation and 3 years after termination of
parole or probation, to petition the Superior Court for a
license reinstatement hearing. If the Court finds that the
individual no longer poses a possible risk to patients, the
Court orders the Medical Board of California to reinstate the
license. However, if the Court denies relief, then the revocation
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of the license stays in place.
This bill, similar to SB 252, simply allows for the possible
reinstatement of a salesperson or real estate license once an
individual has been relieved of his or her duty to register as a
sex offender, or the individual's duty has been formally
terminated under applicable law.
SB 1178 (Aanestad, Chapter 517, Statutes of 2008) corrected some
drafting errors to SB 252 and made it clear that federal law
would apply regarding registered sex offenders and that once the
license was revoked it could not be stayed and the license
placed on probation. This measure includes these changes.
3.Related Legislation this Session. SB 583 (Hollingsworth) would
require DOJ to classify each address at which a registered sex
offender resides with a unique identifier that shall include the
nature of the dwelling, as specified.
SB 584 (Hollingsworth) would require a registered sex offender who
used a computer to facilitate the crime to inform the
registering agent as to whether or not he or she has access to a
computer or other device with Internet capability and if placed
on probation or parole to be prohibited from using a computer or
other device to access the Internet unless authorized to use
with monitoring devices.
SB 689 (Hollingsworth) would prohibit a parolee who is a
registered sex offender during their period of parole from
residing in any residential facility, as defined, with another
other person also registered as a sex offender unless they are
legally related, as specified.
AB 179 (Portantino) would require a registered sex offender to
include all
e-mail addresses and instant messaging identities that may be used
by the person in the information provided at each registration
or renewed registration, as specified, and would additionally
require the DOJ to publish on their Internet Website all e-mail
addresses and instant messaging identities that may be used by
any of these persons.
AB 575 (Torres) would make it a misdemeanor for a registered sex
offender, except in limited instances, to be physically present
and delay, linger, or idle about within 300 feet of a sensitive
use site, as defined, including places where children gather
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such as arcades, bus stops, child care centers, etc.
AB 997 (Krekorian) would require DOJ, Department of Social
Services, and the Department of Alcohol and Drug Programs to
coordinate with one another to develop an approach that allows
these departments to generate information identifying all sex
offenders living in licensed residential, child care, or foster
care facilities.
AB 1025 (Conway) would prohibit any person who is a registered sex
offender from performing specified duties for a school district
including from being employed by a school district, or serving
as a coach or volunteer coach for any scholastic or
interscholastic athletic program.
AB 1170 (Calderon) would require DOJ to make available to the
public a consumer information booklet providing federal and
state law relating to sex offender registration as it relates to
the lease or rental of real property.
AB 1261 (Strickland) would prohibit the court from granting a
person physical or legal custody of, or allowing unsupervised
visitation with, a child if the person is a registered sex
offender and prohibiting the court from placing a child in a
home in which that person resides.
4.Arguments in Support. The California Association of Realtors
(CAR) is in support of this measure and believes it will enhance
the Department of Real Estate's ability to bar listed sex
offenders from licensure. The CAR also believes that because of
the unique position of trust held by real estate licensees, and
because of their unique opportunities for subsequent offense,
that it is appropriate to direct the Department to take the
extraordinary step of barring listed offenders from the license.
5.Arguments in Opposition. The American Civil Liberties Union
(ACLU) is opposed to this measure and indicates that while
criminal background checks for employment have expanded
significantly under California laws, insufficient attention has
been paid to the fairness of the process and the detrimental
impact that these state laws have on employers and the tax base
when the state goes too far in denying people with irrelevant
criminal records employment. Furthermore, as stated by the
ACLU, the Constitution requires that state employment
requirements be "directly related" to an individual's fitness to
perform the job duties required by the position. The ACLU
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argues, that since the bill would prohibit anyone required to
register as a sex offender from obtaining a real estate license
and would revoke the license of anyone who is currently
licensed, the proposed lifetime bar is unwarranted and over
expansive. ACLU argues further that this lifetime bar will
actually negatively impact public safety because increasing
unnecessary and unfair barriers to employment will increase
recidivism.
NOTE : Double-referral to Public Safety Committee second.
SUPPORT AND OPPOSITION:
Support:
California Association of Realtors
Opposition:
The American Civil Liberties Union
Consultant:Bill Gage