BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 269
                                                                  Page  1

          Date of Hearing:   September 10, 2013

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER  
                                     PROTECTION
                               Susan A. Bonilla, Chair
                     SB 269 (Hill) - As Amended:  August 30, 2013

           SENATE VOTE  :   36-0
           
          SUBJECT  :   Prepaid rental listing service.

           SUMMARY  :   Expands the enforcement powers of the Bureau of Real  
          Estate (BRE) over prepaid rental listing services (PRLS)  
          licensees, authorizes consumers harmed by PRLS providers to seek  
          compensation from the Consumer Recovery Account (Account),  
          increases application fees for the PRLS license to better fund  
          the Account, and requires licensees to provide prospective  
          clients with a written notice of the consumer's rights.   
          Specifically,  this bill  :   

          1) Authorizes BRE to issue a citation containing an order of  
             correction to an unlicensed individual for advertising  
             professional services in a telephone directory, which may  
             include a requirement that the cited individual cease  
             advertising in a telephone directory and a request for the  
             disconnection of the violator's telephone service, as  
             specified.

          2) Grants cite and fine authority to the Commissioner of BRE as  
             specified to punish the unlicensed or improper provision of  
             PRLS, which includes the power to impose an administrative  
             fine not to exceed $2,500 to be deposited in the Account. 

          3) Increases the application fee for the PRLS license from $100  
             to $125 for the first location, and from $25 to $50 for each  
             subsequent location and to add or eliminate additional  
             locations. 

          4) Requires $25 of each application fee to be credited to the  
             Account. 

          5) Requires a PRLS licensee to include his or her license number  
             in the written contract offered to a prospective tenant. 

          6) Requires PRLS licensees to provide to the prospective tenant,  








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             prior to accepting a fee, with a written notice in 12 point  
             font enumerating the prospective tenant's rights under  
             existing law, as specified.  

          7) Requires every person holding a PRLS license, when obtaining  
             or renewing a license anytime within two years after the  
             balance of the Account drops below $200,000, to pay an  
             additional fee of $1 to fund the Account.  The fee shall be  
             paid into the State Treasury and credited to the Account. 

          8) Authorizes consumers harmed by a PRLS licensee to file an  
             application with BRE for payment of a final court judgment or  
             arbitration award from the Account.  

          9) Requires the automatic suspension of a PRLS license if any  
             payment is made from the Account in settlement of a claim or  
             toward satisfaction of a judgment against a licensee; further  
             requires full repayment with interest of that amount before a  
             license can be reinstated. 

          10)Makes other technical and clarifying changes. 

          11)Specifies that no reimbursement is required because the only  
             costs that may be incurred by a local agency or school  
             district will be incurred because this act creates a new  
             crime or infraction, eliminates a crime or infraction,  
             changes the penalty for a crime or infraction, or changes the  
             definition of a crime.

           EXISTING LAW  

          1) The Real Estate Law provides for the regulation and licensing  
             of PRLS by the Real Estate Commissioner (Commissioner).  
             Existing law prohibits a person from engaging in the business  
             of PRLS unless licensed in that capacity or licensed as a  
             real estate broker. A willful violation of these provisions  
             is a crime.  (Business and Professions Code (BPC) Section  
             10000, et seq.)

          2) Requires a person offering PRLS to hold either a real estate  
             broker's license or a PRLS-only license issued by the BRE.  
             (BPC 10167.2 (a))

          3) Requires a PRLS licensee to maintain a $10,000 corporate  
             security bond or cash deposit in an account assigned to the  








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             Commissioner. (BPC 10167.7)

          4) Requires PRLS licensees to pass a background check, pay an  
             application fee of $100 plus $25 for each branch location at  
             which the PRLS services will be offered.  (BPC 10167.3 (a))

          5) Requires a PRLS provider, prior to accepting a fee, to offer  
             a written contract specifying the name, address, and  
             telephone number of the provider, acknowledgement of receipt  
             of the amount of the fee, a description of the service to be  
             provided, and the prospective tenant's specifications for the  
             rental property. (BPC 10167.9)

          6) Requires a licensee to fully refund a prospective tenant if  
             within five days of executing the contract the licensee has  
             not provided at least three currently available properties  
             that meet the prospective tenant's specifications, unless the  
             tenant obtains a rental through the licensee's services. (BPC  
             10167.10(a)(1))

          7) Requires a licensee to refund any charge above $50 if the  
             prospective tenant obtains a rental that is not through the  
             services of the licensee during the period of the contract,  
             or does not find a rental during the period of the contract,  
             so long as the prospective tenant requests the refund within  
             ten days after the end of the contract period.  (BPC  
             10167.10(b)(2))

           FISCAL EFFECT  :   According to the Assembly Appropriations  
          Committee, costs associated with this legislation should be  
          minor and absorbable within existing BRE resources.

           COMMENTS  :   

           1)Purpose of this bill  .  This bill is intended to improve  
            consumer protection in the rental housing market by increasing  
            BRE's power to regulate real estate licenses that pertain only  
            to the provision of PRLS.  SB 269 would also give PRLS  
            consumers access to a licensee-funded recovery Account in case  
            the consumer is financially harmed by a licensee, while  
            increasing application fees to better fund the Account and  
            also requiring licensees to provide a written notice of  
            consumer rights to prospective clients.  This bill is author  
            sponsored.  









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           2)Author's statement  .  According to the author, "A tight rental  
            housing market is one of the many consequences of California's  
            foreclosure crisis.  Either because they lost their home to  
            foreclosure or short sale, or because the home they were  
            renting was foreclosed upon, many individuals and families are  
            being forced to, or are choosing to, look for rental housing.   
            Unfortunately, the high demand for rental properties has  
            created a market ripe for prepaid rental listing service  
            scams.  In recent months, there have been press reports in  
            various regions of the state, documenting some of the abuses,  
            and BRE has issued a Consumer Fraud Alert and Warning, hoping  
            to encourage consumers to check out their rental list  
            providers, before paying for services."

           3)The PRLS-only license  .  PRLS providers offer a list of  
            available rentals meeting a prospective renter's selection  
            criteria, in exchange for a fee paid by the prospective  
            renter.  Anyone conducting business as a PRLS provider in  
            California requires a real estate salesperson or broker's  
            license, or a special PRLS license which entitles the licensee  
            to offer only PRLS services.  The PRLS license expires after  
            two years.
           
             The fee paid to a PRLS provider by a prospective renter is due  
            when the list is provided to him or her, but a consumer is  
            entitled to a refund from their PRLS provider if they are  
            unable to obtain a rental property using the list they were  
            provided.  Paying a fee to avoid the hassle of sorting through  
            hundreds of classified or online ads can may be worthwhile and  
            a valuable time-saver if the list that is provided is  
            accurate, specifically tailored to the renter and up-to-date.   
            However, the author contends that PRLS scams are increasingly  
            common, and that many consumers have found themselves unable  
            to obtain rentals or refunds of their PRLS fees.

          4)Improper activity in the PRLS market  .  According to the  
            author, the bar to obtain a PRLS-only license is very low  
            (passing a background check, posting a $10,000 bond, and  
            paying a $100 license fee), which makes it easy for scammers  
            to proliferate.  There are also very few valid licenses in  
            operation.  The BRE's Web site lists a total of 31 unique  
            PRLS-only license identification numbers, of which only 16 are  
            in good standing or restricted status.  Seven other ID numbers  
            are listed as cancelled, five are expired, two are revoked and  
            one is suspended.  Furthermore, since the foreclosure crisis  








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            began, BRE has issued 34 desist and refrain orders to people  
            offering PRLS services without a valid license. 

          In 2012, the BRE issued a Consumer Fraud Alert and Warning  
            regarding PRLS, writing that a "growing number of scams [are]  
            being perpetrated against consumers seeking to rent homes and  
            apartments by persons offering rental lists for a fee and  
            businesses operating [PRLS] companies. As a result of the  
            current economic climate, a significant number of consumers  
            have the need to move into residential rental properties due  
            to income and/or credit issues, foreclosures, short sales, or  
            some other inability to own homes or maintain homeownership.   
            Moreover, some existing renters are forced to look for  
            alternative rental space due to foreclosure of their existing  
            rental properties. These realities have created an environment  
            perfect for PRLS scams."

          According to the author, a typical PRLS scam involves the  
            promise of a list of available rentals in a location and price  
            range desired by the prospective tenant.  But when the  
            prospective renter contacts the owners of the properties on  
            the list, they learn that the properties are not for rent,  
            have already been rented, or do not exist.  Prospective  
            renters may also find that the advertised rental price, or  
            some other detail, is incorrect.  The failure of some PRLS  
            providers to honor valid refund requests also poses a problem  
            for consumers.

           5)This bill in practice  . SB 269 aims to better regulate the PRLS  
            market by giving BRE authority to cite and fine individuals  
            who engage in unlicensed activity.  Under this bill, BRE may  
            issue administrative fines of up to $2,500 per violation,  
            curtail advertising by unlicensed individuals, and have a  
            violator's telephone disconnected.

          SB 269 also makes PRLS consumers eligible to access the Consumer  
            Recovery Account, which enables a person who has been  
            defrauded to recover at least some of his or her actual loss  
            when the licensee has insufficient assets to pay for the loss.  
              

          In general, the requirements for payment from the Account  
            include obtaining a final civil judgment, arbitration award,  
            or a criminal restitution order against a licensee.  The  
            judgment, award or order must be based on intentional fraud or  








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            conversion of trust funds in connection with a transaction  
            requiring a real estate license.  The victim must make a  
            reasonable search for the licensee's assets, and, if any, a  
            reasonable effort to collect on the judgment, arbitration  
            award or restitution order from those assets to satisfy the  
            judgment.  This bill would better fund the Account through the  
            cite and fine authority and by increasing license application  
            fees by $25.

            SB 269 would also require PRLS providers to include their  
            license number in their contracts, and provide a notice of  
            consumer rights to prospective tenants before accepting a  
            service fee. That notice would offer a simple,  
            easy-to-understand explanation of their contractual refund  
            rights, the process for requesting a refund, how to file a  
            complaint with the BRE, and a reminder that a consumer may  
            bring suit against a licensee in small claims court for  
            refusal to issue a refund as required by the contract.

           6)Prior hearing of this bill  .  This bill was previously heard in  
            this Committee on June 11, 2013, where it was passed out 12-0.  
             That version of the bill (February 14, 2013) would have  
            phased out the PRLS license over two years and instead require  
            a PRLS provider to hold a valid real estate broker license, in  
            addition to providing prospective clients with a written  
            notice of the consumer's rights before accepting payment.   
            However, according to the author, the Department of Consumer  
            Affairs raised technical concerns about the constitutionality  
            of that particular approach, and the bill was subsequently  
            rewritten to better regulate the PRLS license rather than  
            prohibit it altogether. 

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Apartment Association
          Apartment Association, Southern California Cities
          East Bay Rental Housing Association
          NOR CAL Rental Property Association
           
            Opposition 
           
          None on file. 









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           Analysis Prepared by  :    Hank Dempsey / B.,P. & C.P. / (916)  
          319-3301