BILL NUMBER: AB 278 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 1, 2011
AMENDED IN SENATE JUNE 23, 2011
INTRODUCED BY Assembly Member Hill
( Principal coauthor: Senator
Calderon )
FEBRUARY 8, 2011
An act to add Sections 10088 and 10089
Section 10080.9 to the Business and Professions Code, relating
to real estate.
LEGISLATIVE COUNSEL'S DIGEST
AB 278, as amended, Hill. Department of Real Estate:
administrative fines. citations.
The Real Estate Law provides for the regulation and licensure of
real estate brokers and real estate salespersons by the Real Estate
Commissioner. Existing law authorizes the commissioner, upon his or
her own motion, and requires the commissioner, upon the verified
complaint in writing of any person, to investigate the actions of a
real estate licensee who has engaged in specified acts. If the
commissioner finds that a licensee has committed those acts, existing
law authorizes the commissioner to suspend or revoke a licensee's
real estate license or to, instead, impose specified monetary
penalties, which are required to be credited to the Recovery Account
in the Real Estate Fund.
This bill would authorize the commissioner to adopt
regulations that establish a system for the issuance of citations to
licensees who are in violation of the Real Estate Law or any
regulation adopted thereunder. The bill would require citations to be
in writing, to indicate the provisions of law violated by a
licensee, and to inform a licensee that the licensee may request a
hearing to contest the citation. The bill would authorize citations
to include an order of abatement or an order to pay an administrative
fine of up to $2,500. The bill would authorize the commissioner to
take disciplinary action against a licensee who fails to pay a fine
within 30 days of assessment of the fine, as specified. The bill
would also authorize the commissioner to adopt regulations to
establish a similar system for the issuance of administrative
citations to unlicensed persons acting in the capacity of a licensee.
bill would authorize the commissioner to issue
citations to unlicensed persons the commissioner believes to be
engaging in activities for which a real estate license is required or
to licensees who are in violation of any provision of the Real
Estate Law or any rule or order thereunder. The bill would authorize
citations to include an order to correct the violation or to include
an administrative penalty of up to $2,500. The bill would
require any fines collected pursuant to these provisions to be
credited to the Recovery Account and made available for specified
purposes upon appropriation by the Legislature.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 10080.9 is added to the
Business and Professions Code , to read:
10080.9. (a) If, upon inspection, examination, or investigation,
the commissioner has cause to believe that a person who does not
possess a real estate license is engaged or has engaged in activities
for which a real estate license is required, or that a licensee is
violating or has violated any provision of this division or any rule
or order thereunder, the commissioner or his or her designated
representative may issue a citation to that person in writing,
describing with particularity the basis of the citation. Each
citation may contain an order to correct the violation or violations
identified and a reasonable time period or periods by which the
violation or violations must be corrected. In addition, each citation
may assess an administrative fine not to exceed two thousand five
hundred dollars ($2,500), which shall be deposited into the Recovery
Account of the Real Estate Fund and shall, upon appropriation by the
Legislature, be available for expenditure for the purposes specified
in Chapter 6.5 (commencing with Section 10470). In assessing a fine,
the commissioner shall give due consideration to the appropriateness
of the amount of the fine with respect to factors such as the gravity
of the violation, the good faith of the person cited, and the
history of previous violations. A citation issued and a fine assessed
against and paid by a licensee pursuant to this section shall be in
lieu of other administrative discipline by the commissioner for the
offense or offenses cited.
(b) Notwithstanding subdivision (a), nothing in this section shall
prevent the commissioner from issuing an order to desist and refrain
from engaging in a specific business activity or activities or an
order to suspend all business operations to a person who is engaged
in or has engaged in continued or repeated violations of this part.
In any of these circumstances, the sanctions authorized under this
section shall be separate from, and in addition to, all other
administrative, civil, or criminal penalties.
(c) If, within 30 days from the receipt of the citation or the
citation and fine, the person cited fails to notify the commissioner
that he or she intends to request a hearing as described in
subdivision (d), the citation or the citation and fine shall be
deemed final. If a hearing is not requested pursuant to this section,
the citation and any fine assessed and paid thereunder, while
constituting discipline for a violation of this division or a rule or
order thereunder, shall not be reported as disciplinary action taken
by the department.
(d) Any hearing under this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code.
(e) After the exhaustion of the review procedures provided for in
this section, the commissioner may apply to the appropriate superior
court for a judgment in the amount of any administrative penalty
imposed pursuant to subdivision (a) and an order compelling the cited
person to comply with the order of the commissioner. The
application, which shall include a certified copy of the final order
of the commissioner, shall constitute a sufficient showing to warrant
the issuance of the judgment and order.
(f) Failure of any person to comply with the terms of a citation
or pay a fine assessed pursuant to this section, within a reasonable
period specified by the commissioner, shall subject that person to
disciplinary action by the commissioner. In no event may a license be
renewed if an unpaid fine remains outstanding or the terms of a
citation have not been complied with.
SECTION 1. Section 10088 is added to the
Business and Professions Code, to read:
10088. (a) The commissioner may adopt regulations that establish
a system for the issuance of, and, except with respect to violations
that have resulted in serious financial loss to a member of the
public, may issue, citations to licensees who are in violation of
this part or any regulation adopted pursuant to this part. A citation
may contain an order of abatement or an order to pay an
administrative fine.
(b) The system for the issuance of citations shall satisfy all of
the following:
(1) Citations shall be in writing and describe with particularity
the nature of the violation, including specific reference to the
provision of law determined to have been violated.
(2) Whenever appropriate, the citation shall contain an order of
abatement fixing a reasonable time for abatement of the violation.
(3) In no event shall the administrative fine assessed by the
department exceed two thousand five hundred dollars ($2,500) for each
inspection or each investigation made with respect to the violation.
In assessing a fine, the commissioner shall give due consideration
to the appropriateness of the amount of the fine with respect to
factors such as the gravity of the violation, the good faith of the
licensee, and the history of previous violations.
(4) A citation or fine assessment issued pursuant to a citation
shall inform the licensee that if the licensee desires a hearing to
contest the finding of a violation, that hearing may be requested by
written notice to the commissioner within 30 days of the date of
issuance of the citation or assessment. If a hearing is not requested
pursuant to this section, payment of any fine shall not constitute
an admission of the violation charged, and the payment shall not be
reported in the department's real estate bulletin. Hearings shall be
held pursuant to Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code.
(5) Failure of a licensee to pay a fine within 30 days of the date
of assessment, unless the citation is being appealed, may result in
disciplinary action being taken by the commissioner. Where a citation
is not contested and a fine is not paid, the full amount of the
assessed fine shall be added to the fee for renewal of the license. A
license shall not be renewed without payment of the renewal fee and
fine.
(c) The system for the issuance of citations may contain the
following provisions:
(1) A citation may be issued without the assessment of an
administrative fine.
(2) Assessment of an administrative fine may be limited to only
particular violations of this part.
(3) Notice may be given to a broker when a citation is issued to
any salesperson or broker associate employed by the broker.
(d) Notwithstanding any other provision of law, if a fine is paid
to satisfy an assessment based on the finding of a violation, payment
of the fine shall be represented as satisfactory resolution of the
matter for purposes of public disclosure.
(e) Administrative fines collected pursuant to this section shall
be credited to the Recovery Account of the Real Estate Fund and
shall, upon appropriation by the Legislature, be available for
expenditure for the purposes specified in Chapter 6.5 (commencing
with Section 10470).
(f) The establishment of an administrative citation system
pursuant to this section does not preclude the use of other
disciplinary authority of the commissioner.
SEC. 2. Section 10089 is added to the Business
and Professions Code, to read:
10089. The commissioner may, in addition to the administrative
citation system authorized by Section 10088, adopt regulations to
establish a similar system for the issuance of an administrative
citation to an unlicensed person acting in the capacity of a
licensee. The administrative citation system authorized by this
section shall meet the requirements of Section 10088 and may not be
applied to an unlicensed person otherwise exempted from the
provisions of this part. The establishment of an administrative
citation system for unlicensed activity does not preclude the use of
other disciplinary authority of the commissioner for unlicensed
activities.