Legislature(2009 - 2010)BELTZ 211
04/17/2009 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB101 | |
| HB129 | |
| HB201 | |
| HB102 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 101 | TELECONFERENCED | |
| + | HB 102 | TELECONFERENCED | |
| + | HB 129 | TELECONFERENCED | |
| + | HB 201 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 129-POWER TO REVOKE REAL ESTATE LICENSES
1:57:39 PM
CHAIR FRENCH announced the consideration of HB 129. [Before the
committee was CSHB 129(RLS).] He welcomed the sponsor, his
counterpart in the House, and apologized that he didn't have a
cookie to offer.
REPRESENTATIVE JAY RAMRAS, sponsor of HB 129, introduced
Margaret Dowling who will explain the details of the bill.
CHAIR FRENCH asked for the record to reflect that Senator
Therriault brought Representative Ramras a cookie.
MARGARET DOWLING, staff to Representative Jay Ramras, said HB
129 makes a simple, but needed, correction to existing law that
says that the Alaska Real Estate Commission must revoke the
license of a real estate broker or associate broker who has been
convicted of forgery, theft, extortion, conspiracy to defraud
creditors, or fraud. The commission can refuse to grant a
license or deny renewal of a license on the same grounds. The
problem is that the law does not apply to Alaska's 1,460
licensed sales people; it applies only to the 411 associate
brokers and 483 brokers in the state.
This issue was brought to the sponsor's attention by the Real
Estate Commission. She opined that this is a field where
customers place faith in an agent's trustworthiness; these
people have unfettered access to clients' homes, and they often
assist clients with sometimes complicated negotiations and
financial transactions. HB 129 will empower the Real Estate
Commission to appropriately regulate this profession, which will
protect both the profession and the public.
2:01:28 PM
CHAIR FRENCH disclosed that his wife is a real estate licensee.
He remarked that he thought that in the recent past real estate
agents, brokers and sales persons were renamed as licensees, but
he now sees that pertains to a different part of the real estate
statutes. He asked for enlightenment.
MS. DOWLING responded she only knows is that under this section
the individuals are referred to as sales persons, brokers, and
associate brokers.
2:03:13 PM
SENATOR THERRIAULT pointed out that bills typically are
prospectively applicable, but this bill is applicable both
prospectively and retrospectively.
MS. DOWLING said that clarifies the intent, which is to protect
the public. It enhances the regulatory scheme so that the Real
Estate Commission can police the profession.
SENATOR THERRIAULT asked if this would affect a person who had a
felony conviction 10 years ago.
MS. DOWLING explained that the existing statute states that a
person who is convicted of a felony is barred from receiving a
license for seven years from the date they complete their
sentence.
2:04:44 PM
SENATOR MCGUIRE asked if she has looked into the
constitutionality of that provision because she recalls that you
can place terms on or after the effective date, but you can't
reach back to prior criminal acts.
MS. DOWLING said she would defer questions about ex post facto
laws to Gayle Horetski, but it's the sponsor's view that this
does not increase punishment for a crime. This enhances an
existing regulatory scheme so that the state's interest in
protecting the public can be met. She reiterated that sales
people have unfettered access to peoples' homes and they assist
in sometimes complicated financial transactions. The public
assumes that the person they are dealing with will be
trustworthy.
2:06:12 PM
CHAIR FRENCH clarified that this does not increase any criminal
punishment that has already been imposed.
GAYLE HORETSKI, Attorney, Civil Division, Commercial/Fair
Business Section, Department of Law, said HB 129 makes a minor
change to existing law. Currently brokers and associate brokers
are under these provisions and the bill adds sales persons to
the existing law. The existing law provides that if a person is
convicted of certain offenses the Real Estate Commission shall
revoke their license. "So you have a revoked license or this
doesn't even apply," she said.
CHAIR FRENCH asked her to say that again.
MS. HORETSKI explained that this doesn't apply in and of itself
to convictions. It applies to people whose licenses have been
revoked because of their conviction. Page 3, paragraph (10) says
the commission shall revoke the license of a broker or associate
broker who has been convicted of a felony or other crime. You
have the criminal conviction and then the commission has to take
a separate step to file an accusation and revoke the license.
Once the license is revoked based on the conviction, the person
cannot get relicensed until seven years after they have served
their sentence.
CHAIR FRENCH posed the circumstance of someone who was convicted
five years ago of a DUI and asked if this bill would allow the
commission to revoke that person's license if they are currently
practicing real estate in the state of Alaska.
MS. HORETSKI directed attention to page 3, line 20, and said
only if it is the commission's judgment that it affects the
ability of that person to practice.
CHAIR FRENCH observed that there is something of an ex post
facto issue because it's a conviction from the past for which
someone is being repenalized. He added that it's his analysis
that it's not a criminal penalty so it's not an issue.
2:09:30 PM
MS. HORETSKI said from a legal standpoint this is not a penalty
issue at all. A person does not have a constitutional right to a
license unless they meet the criteria. If a person gets a
license then they would have a property interest.
CHAIR FRENCH said he agrees, but someone who is making a good
living as a real estate agent might have a different view.
MS. HORETSKI added that the purpose of licensing a profession is
to set a minimum standard below which the public can be
confident that the person has not fallen. That doesn't mean he
or she will be any good at what they do, but if the person does
not meet the minimum criteria for initial licensure or renewal,
he or she is not entitled to hold the license. She reiterated
that this isn't an issue of punishment. This is a public
regulatory measure.
2:11:07 PM
SENATOR MCGUIRE cautioned that this is ripe for litigation
because revoking someone's license is certainly an economic
penalty. When the legislature wanted to register all individuals
in the state who were prior sex offenders, the court said
absolutely not. It was an ex post facto problem to try to reach
back. If the underlying statute has that language applying to
brokers she said she would be curious to know if the commission
has had to address that. If this were to pass it's likely that
sales people in this state will have their real estate licenses
revoked, she said. It's a risk the sponsor takes.
2:12:54 PM
MS. HORETSKI offered the view that that exact reason is the
purpose for the language in the bill that makes it clear that it
is intended to apply to offenses that occurred before the
effective date of the bill. She continued:
As you know under our state law, the idea that
something is retroactively or retrospectively applied
does not make it unconstitutional. But there is a
state statute that says that that intent in intended
that it should be exclusively stated. So it's an
attempt to minimize the legal issues on appeal or if
it's challenged that that language clarifying the
legislation's intent was added. And we're really glad
that that language is in there because it does clarify
the scope…
MS. HORETSKI related that this has come up in other
circumstances such as driver's licenses and situations where the
licensure criteria for a particular profession has been upgraded
or narrowed. There is an affect and people do drop out, but the
courts have by-and-large said that the legislature can change
the criteria if it's a rational requirement. If that weren't the
case, standards wouldn't rise over the years.
2:14:57 PM
SENATOR MCGUIRE said that makes sense, but this isn't about
raising professional requirements. This is about reaching back
into someone's criminal record. Criminal and civil penalties and
offenses are treated differently. The trigger here is if
additional burden is placed on a person's criminal past.
CHAIR FRENCH said he agrees with Ms. Horetski but Senator
McGuire's point is valid because economic pain is real. He
suggested the committee imagine a somewhat analogous situation
of a state that employs teachers that are only required to have
a high school education and a college degree. Assume that system
works for 20 years when it suddenly comes to light that 50 sex
offenders are teaching in the schools. A decision is made to
raise the bar and require a high school education, a degree from
college, and a record free of being a sex offender. The effect
of the bill would be to strip teaching certificates from all the
sex offenders and legislators would readily sign off on that.
The sex offenders might complain, but they'd be told that's
tough luck. The bar has been raised.
SENATOR MCGUIRE warned that that may work, but they will sue.
2:17:22 PM
CHAIR FRENCH asked Ms. Walsh if the Real Estate Commission looks
at criminal histories of individuals who come before the
commission seeking sales person, associate broker, and broker
licensure.
SHARON WALSH, Executive Administrator, Alaska Real Estate
Commission, Alaska Association of Realtors, answered no and they
don't do fingerprinting either. Applicants fill out a self-
disclosure form.
CHAIR FRENCH asked if she has any reason to believe that this
would apply to licensees currently working in the state who have
disqualifying felony convictions.
MS. WALSH replied she knows of one case.
2:18:23 PM
REPRESENTATIVE RAMRAS related that he believes that case is the
reason the commission contacted him asking for clarification.
The intent of the bill is to give the commission the authority
to police their own because this is a profession that thrives on
trust.
CHAIR FRENCH closed public testimony. He said he is comfortable
with the state of the bill and solicited a motion.
2:19:41 PM
SENATOR MCGUIRE moved to report HB 129 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, CSHB 129(RLS) moved from the Senate
Judiciary Standing Committee.
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