BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1807


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          Date of Hearing:  April 12, 2016


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                  Rudy Salas, Chair


          AB 1807  
          (Bonta) - As Amended April 4, 2016


          SUBJECT:  Real estate licensees.


          SUMMARY:  Allows a licensee of the Bureau of Real Estate (BRE)  
          to petition the Real Estate Commissioner (Commissioner) to  
          remove his or her notice of disciplinary action from the BRE's  
          Internet Web site because the information is no longer necessary  
          to prevent a credible risk to the public.


          EXISTING LAW:


          1)Establishes within the Department of Consumer Affairs (DCA) a  
            Bureau of Real Estate (BRE), the chief officer of which is  
            named the Real Estate Commissioner (Commissioner); the BRE is  
            mandated protect the public by exercising its licensing,  
            regulatory, and disciplinary functions; whenever the  
            protection of the public is inconsistent with other interests  
            sought to be promoted, the protection of the public shall be  
            paramount. (Business and Professions Code (BPC) Section 10000,  
            et seq.) 
          2)Provides that the Commissioner enforce the provisions of the  
            Real Estate Law; has full power to regulate and control the  
            issuance and temporary or permanent revocation of all licenses  
            to be issued; and, perform all other acts and duties necessary  








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            for their enforcement. (BPC Section 10071)


          3)Provides that the commissioner may adopt, amend, or repeal  
            rules and regulations that are reasonably necessary for the  
            enforcement. (BPC Section 10080)


          4)Requires the Commissioner to provide on the Internet  
            information regarding the status of every license issued,  
            including information on suspensions and revocations of  
            licenses, accusations filed pursuant to the Administrative  
            Procedure Act relative to persons or businesses subject to  
            licensure or regulation; provides that the information not  
            include personal information, except for the licensee's  
            address of record. (BPC Section 10083.2)


          5)Specifies actions by a licensee for which the Commissioner or  
            a designee may issue a citation and fine, including when a  
            person who does not possess a real estate license, prepaid  
            rental listing service license, or a real estate broker  
            license is engaged or has engaged in activities for which the  
            respective license is required; or when a licensee is  
            violating or has violated provisions, as specified.  (BPC  
            Section 10080.9)


          6)Promulgates regulations for citations and fines associated  
            with a violation or violations of the Real Estate Law;  
            requires the citation to be provided in writing with  
            particularities and nature of the violation; provides that the  
            citation may be made by certified mail at the address of  
            record of a licensee cited, or to the last known mailing,  
            business, or residence address of an unlicensed person or  
            entity cited; requires time be allowed to comply with an order  
            of correction that is specified in the citation; provides that  
            the person receiving the citation may request an extension of  
            the time to comply with the order if the cited person or  








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            entity is unable to complete the correction or pay the fine  
            within the time specified. (Title 10 California Code of  
            Regulations Sections 2907.1-2907.4)


          THIS BILL:


          1)Declares that it is appropriate for the BRE to continue  
            reporting on its license verification Internet Web page, which  
            is hosted on the BRE Web site when discipline has been imposed  
            upon a licensee for conduct that indicates a credible risk of  
            harm to the public; and that the BRE may consider and grant on  
            a case-by-case basis a licensee's petition to discontinue the  
            reporting of past disciplinary actions he or she can provide  
            evidence that continued reporting is no longer required reduce  
            risk to the public.


          2)Declares that the BRE may require a petitioner to pay in  
            advance of consideration a fee to defray costs associated with  
            consideration of the petition.


          3)Declares that the BRE is not authorized or required to destroy  
            public records maintained pursuant to the California Public  
            Records Act.


          4)Declares that the Legislature intends to establish a process  
            by which a licensee may petition the BRE to remove a notice of  
            past discipline from the license verification Internet Web  
            site of the bureau.


          5)Provides that a licensee may petition the Commissioner to  
            remove from the posting of discipline, as specified, an item  
            that through passage of time and evidence of rehabilitation is  
            no longer required in order to prevent a credible risk to  








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            members of the public utilizing licensed activity of the  
            licensee.


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

          COMMENTS:


          Purpose.  This bill provides that a licensee of the BRE may  
          petition the Commissioner to remove his or her notice of  
          disciplinary action from the BRE's Internet Web site because the  
          licensee is no longer a credible risk to the public.  This bill  
          is sponsored by the California Association of Realtors. 


          According to the author, "The current disciplinary system under  
          the BRE serves an important role in ensuring consumers have  
          access to a real estate licensee's disciplinary history. That  
          information serves as a valuable tool in protecting consumers  
          and promoting transparency. However, this tool has also  
          negatively impacted a small class of real estate licensees who  
          have had minor disciplinary actions on their record for many  
          years. Even after the licensee has been rehabilitated and the  
          license penalty has been removed, there isn't an opportunity to  
          have that action removed from the online database. This bill  
          simply provides the BRE Commissioner the ability to determine  
          how long certain disciplinary actions should be posted online,  
          ensuring that rehabilitated licensees are operating on a level  
          playing field."


          Background.  The mission of the BRE is to safeguard and promote  
          the public interests in real estate matters through licensure,  
          regulation, education and enforcement. The BRE's jurisdiction is  
          licensing and regulating mortgage loan originators, real estate  
          and prepaid listing service licensees, reviewing and approving  
          subdivision and time share offerings, and approving continuing  








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          education and pre-license courses.


          A real estate license must first be obtained from the BRE if a  
          person wishes to engage in the real estate business and to act  
          in the capacity of, advertise, or assume to act as a real estate  
          broker or real estate salesperson within the State of  
          California. Currently, there are approximately 535,000 real  
          estate licensees in California.


          Under current law, low-level disciplinary actions that the BRE  
          addresses via citation and fine do not appear on its website.  
          These infractions include, among others, when a person without a  
          real estate license engages in activities for which a real  
          estate license is required.  The BRE investigates these  
          situations following standards set out in regulations.


          Violations of provisions in law that warrant disciplinary action  
          can vary in greatly.  For instance, a licensee may violate a  
          seemingly minor provision of his or her licensure in a severe  
          way.  As such, a violation of one licensee's provisions could  
          lead to the same disciplinary action as another licensee who  
          violated a completely different provision.  Likewise, a licensee  
          who repeatedly violates his or her provisions may have a more  
          severe disciplinary action taken against him or her than a  
          licensee who is noticed for his or her first violation.  When a  
          disciplinary action is taken against a licensee, the  
          Commissioner is required to post a notice of discipline on the  
          BRE's Web site so that the information is available to a  
          consumer who searches specifically for that licensee. These  
          notices are posted to the Web site indefinitely.


          However, according to the California Association of Realtors,  
          some licensees have used this information to gain a competitive  
          advantage over licensees with a record of discipline from the  
          BRE, even if the violation for which the licensee was  








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          disciplined is several years old, the licensee has complied with  
          corrective actions specified in the citation, and the violation  
          is no longer relevant to the licensee's ability to operate.


          The Commissioner already has the authority to review  
          disciplinary actions against a licensee and evaluate whether the  
          disciplinary action should be modified. This bill would provide  
          an avenue for licensees to request a disciplinary action on the  
          BRE's website be removed if the Commissioner agrees that there  
          is evidence of rehabilitation and the licensee is not a  
          potential risk to consumers.


          ARGUMENTS IN SUPPORT: 


          The  California Association of Realtors  writes in support, "This  
          bill creates a process by which a licensee can have an old  
          record of discipline removed from [the BRE] website profile if  
          the [Commissioner] determines that protection of the public  
          interest and public welfare will be adequately maintained.  
          Additionally, the process would be paid for by the petitioner  
          thereby avoiding any new costs to the [BRE]."


          POLICY ISSUES FOR CONSIDERATION:


          This bill requires the licensee who is petitioning to have his  
          or her notice of disciplinary action removed from the website  
          pay a fee to defray the cost of evaluation. It is unclear what  
          would be the expense to the licensee. The author may wish to  
          specify that the BRE develop, through regulations, a fee  
          schedule for the petition process.


          IMPLEMENTATION ISSUES:









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          1)This bill specifies that a licensee may petition the  
            Commissioner to remove the notice of disciplinary action if he  
            or she can show that he or she is no longer a credible risk to  
            the public. It is unclear how much time would constitute  
            "passage of time" before the licensee qualifies for the  
            petition. 
          2)This bill leaves the outcome of the petition to the discretion  
            of the Commissioner, but provides no guidelines for the  
            petitions to be minimally consistent.


          To address the implementation concerns raised above, the author  
          should amend his bill as follows:


          1)On page 3, subdivision (c) should be amended to read:


            Upon petition by a licensee accompanied by a fee sufficient to  
            defray costs associated with consideration of a petition, the  
            commissioner shall remove from the posting of discipline  
            described in subdivision (a), an item that  through passage of  
            time   has been noticed on the bureau's Internet Website for no  
            less than ten years  and  for which the licensee provides   
            evidence of rehabilitation  indicating that the notice  is no  
            longer required in order to prevent a credible risk to members  
            of the public utilizing licensed activity of the licensee.


          2)On page 3, after subdivision (c) insert  "The bureau shall  
            develop, through regulations, the minimum information to be  
            included in a licensee's petition, including but not limited  
            to, a written justification and evidence of rehabilitation  
            pursuant to Business and Professions Code Section 482."  
          REGISTERED SUPPORT:  


          California Association of Realtors (Sponsor)








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          REGISTERED OPPOSITION:  


          None on file.




          Analysis Prepared by:Gabby Nepomuceno / B. & P. / (916) 319-3301