BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 685


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          Date of Hearing:  April 7, 2015


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                Susan Bonilla, Chair


          AB 685  
          (Irwin) - As Introduced February 25, 2015


          SUBJECT:  Real estate:  licensees.


          SUMMARY: Requires the California Bureau of Real Estate (CalBRE)  
          to deny a license to an applicant with an unpaid fine, and  
          authorizes the CalBRE to sanction a licensee for the surrender  
          of another license and revoke a license issued in error. The  
          bill also requires a licensee to report the filing of a criminal  
          complaint charging a felony against the licensee and makes other  
          technical changes.


          EXISTING LAW 


          1)Provides for the licensure and regulation of real estate  
            brokers and real estate salespersons by the Bureau of Real  
            Estate headed by the Real Estate Commissioner (Commissioner).  
            (Business and Professions Code (BPC) § 10000 - 10580) 


          2)Authorizes the Commissioner to issue a citation to someone  
            engaged in activities requiring a real estate license if the  
            Commissioner has cause to believe the person does not have a  
            license. (BPC § 10080.9)









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          3)Prohibits the Commissioner from renewing the license of a  
            person who has failed to comply with the terms of a citation  
            or pay an outstanding fine. (BPC § 10080.9)


          4)Authorizes the Commissioner to suspend or revoke the license  
            of a real estate licensee, or deny the issuance of a license  
            to an applicant, if he or she has engaged in specific  
            activities or has had a license issued by another agency,  
            another state, or the federal government revoked or suspended  
            for engaging in those activities. (BPC § 10177)


          5)Requires licensees to report the bringing of an indictment or  
            information charging a felony against the licensee. A willful  
            or knowing violation of this requirement is punishable by a  
            fine and imprisonment.  (BPC § 10186.2, 10185)


          THIS BILL


          1)Prohibits the Commissioner from issuing a license to an  
            applicant that has not complied with the terms of a citation  
            or paid an outstanding fine.


          2)Authorizes the Commissioner to suspend or revoke the license  
            of a licensee, or deny the issuance of a license to an  
            applicant, who surrendered a license issued by another agency,  
            another state, or the federal government. 


          3)Authorizes the Commissioner to suspend or revoke the license  
            of a licensee, or deny the issuance of a license to an  
            applicant, for failure to surrender a license that was issued  
            in error or by mistake.









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          4)Requires a licensee to report the filing of a criminal  
            complaint charging a felony against the licensee to CalBRE.


          5)Makes other nonsubstantive changes. 


          FISCAL EFFECT: Unknown. This bill is keyed fiscal by the  
          Legislative Counsel.


          COMMENTS 


          1)Purpose. This bill is sponsored by the California Realtor's  
            Association. According to the Author, "AB 685 is a cleanup of  
            the Real Estate Law intended to provide greater clarity as  
            well as remove any redundancy.  The measure will, for example,  
            (1) allow CalBRE to deny the issuance of a license due to  
            unpaid fine, (2) allow CalBRE to discipline a licensee for  
            actions taken against another state license if the behavior  
            that resulted in that action would have resulted in the  
            discipline of a real estate licensee, and (3) make it clear  
            that licensees must report any information regarding the  
            charging of a felony to CalBRE.  These are changes that will  
            allow CalBRE to better oversee the licensure and discipline of  
            real estate licensees."


          2)Background. Currently, there are several loopholes in CalBRE's  
            enforcement statute.  First, CalBRE cannot deny an applicant a  
            license if the licensee has an outstanding fine, for instance  
            if fined for unlicensed activity. 


            Second, while CalBRE can suspend, revoke, or delay the renewal  
            of a license for a licensee, or deny the issuance of a license  
            to an applicant that has had a license suspended or revoked by  








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            another agency, it cannot do so if the license was voluntarily  
            surrendered.


            Third, CalBRE is not expressly authorized to revoke a license  
            issued by mistake. This bill proposes to close the loopholes  
            by adding language authorizing CalBRE to perform the above  
            actions.


            Reporting of criminal complaints. Current law requires a  
            licensee to report the "bringing of an indictment or  
            information charging a felony against a licensee." The failure  
            to report the filed pleadings is punishable by a fine and  
            imprisonment (BPC §10185). This bill would amend the language  
            to require a licensee to report the "bringing of an indictment  
            or information, or the filing of a criminal complaint,  
            charging a felony against a licensee." As worded, the bill  
            likely makes the failure to report the filing of a criminal  
            complaint charging a felony also punishable by fine or  
            imprisonment. 


            The sponsors state, "As it is unclear what was meant by  
            "information," the proposed amendment would clarify this  
            section by adding the filing of a criminal complaint charging  
            a felony to the list of disciplinary activities licensees must  
            report to the bureau." However, the new language is  
            ambiguous-it is unclear what the clause "or the filing of a  
            criminal complaint" is doing.


            A complaint is the pleading used to bring charges in a felony  
            or misdemeanor criminal action (California Penal Code (CPC) §  
            949). Complaints are also the pleading used to prosecute a  
            misdemeanor and infraction (CPC § 740). They cannot be used to  
            prosecute felonies (CPC § 682). 










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            Information and indictments are the pleadings used to  
            prosecute felonies (CPC § 737). An information is the pleading  
            that is filed when felony charges are brought with a complaint  
            (CPC § 738-739). An indictment is a pleading that is presented  
            by a grand jury to the court, and charges a public offense-no  
            complaint is needed (CPC § 889). Therefore, while criminal  
            complaint, indictment, and information are often used  
            interchangeably, they are actually three distinct accusatory  
            pleadings under California criminal procedure (CPC § 959.1). 


          3)Related legislation. SB 146 (Galgiani) of 2015 revises the  
            definition of "responsible broker's identity" to mean a name  
            under which the responsible broker operates or conducts  
            business in general for the real estate firm as a whole and  
            that does not include a fictitious business name or a team  
            name owned or used solely by a salesperson or group of  
            salespersons, and would provide that a responsible broker's  
            identity may include divisions of the real estate firm  
            registered with the Bureau of Real Estate under the broker, as  
            specified. (STATUS: This bill is currently pending in the  
            Senate Business, Professions and Economic Development  
            Committee)


          4)Previous legislation. SB 875 (Price), Chapter 380, Statutes of  
            2012, among other things, authorized CalBRE to use additional  
            procedures when denying a license and deleted an obsolete  
            provision dealing with the issuing of conditional licenses.


            SB 706 (Price), Chapter 712, Statutes of 2011, made  
            enforcement enhancements to the Department of Real Estate  
            (DRE) and the Office of Real Estate Appraisers (OREA);  
            transferred OREA into DRE; required DRE to appoint a Real  
            Estate Advisory Commission; required licensing boards to post  
            information about licensees on the Internet, as specified; and  
            made updating and conforming changes.









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          5)SUGGESTED AUTHOR'S AMENDMENT. The sponsors have noted that  
            they wish to include the requirement that licensees report  
            criminal complaints. Therefore, the author should amend the  
            bill to ensure the language is clear as to the requirement. 


            On page 7, lines 17 - 18, strike "an indictment or  
            information, or the filing of a criminal complaint," and  
            insert "a criminal complaint, information, or indictment."


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Association of Realtors (sponsor)




          Opposition


          None on file. 




          Analysis Prepared by:Vincent Chee / B. & P. / (916) 319-3301













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