BILL ANALYSIS Ó AB 1807 Page 1 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 AB 1807 Page 2 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 AB 1807 Page 3 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 AB 1807 Page 4 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 AB 1807 Page 5 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 AB 1807 Page 6 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: AB 1807 Page 7 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 thatthrough passage of timehas 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) AB 1807 Page 8 REGISTERED OPPOSITION: None on file. Analysis Prepared by:Gabby Nepomuceno / B. & P. / (916) 319-3301