Legislature(2003 - 2004)

03/24/2004 01:39 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 464                                                                                                            
                                                                                                                                
     An Act extending the termination date of the Board of                                                                      
     Certified Real Estate Appraisers.                                                                                          
                                                                                                                                
PAT   DAVIDSON,  LEGISLATIVE   AUDITOR,   LEGISLATIVE   AUDIT                                                                   
DIVISION, explained  that the Division  has done a  review of                                                                   
the Board and  has recommended its extension for  a period of                                                                   
four  years,   to  June  30,   2008.  The  Division   has  no                                                                   
operational  recommendations for  the Board.  She noted  that                                                                   
the  licensing for  real estate  appraisers is  found in  the                                                                   
federal  regulations in  response to  the congressional  1989                                                                   
Financial Institutions  Reform Recovery and  Enforcement Act.                                                                   
The intent of the Act was twofold:   to ensure that federally                                                                   
related  transactions,  or mortgages  having  involvement  by                                                                   
Freddie  Mac  and Fannie  Mae,  would  be completed  by  real                                                                   
estate  appraisers   who  met  minimum  qualifications;   and                                                                   
secondly, that  the appraisals  were conducted in  compliance                                                                   
with uniform standards.                                                                                                         
                                                                                                                                
Representative Foster  asked how often the Board  meets.  Ms.                                                                   
Davidson  was  unsure,  but  thought it  was  twice  a  year.                                                                   
Representative Foster asked if  the fiscal note reflected the                                                                   
Board's travel  and per  diem.   Ms. Davidson explained  that                                                                   
the Board's costs include licensing,  the licensing examiner,                                                                   
travel  and per  diem,  and  costs related  to  investigative                                                                   
functions.  Representative  Foster asked if  appraisers pay a                                                                   
licensing  fee each year.   Ms.  Davidson answered  that fees                                                                   
for occupational licensing are on a biannual basis.                                                                             
                                                                                                                                
Representative Fate  questioned why the revenue  of the Board                                                                   
dropped  from  $77  thousand  to $18  thousand  in  the  year                                                                   
spanning 2001-2002.   Ms. Davidson  replied that  it reflects                                                                   
the biannual  licensing.  The  big influx of  revenues during                                                                   
the  year of  licensing drops  during the  year it's  carried                                                                   
forward.  The   Division  has  analyzed  the   Board  on  the                                                                   
cumulative 2-year  basis when  considering if the  fee covers                                                                   
its costs.  She referred  to page 12  of the report  (copy on                                                                   
file), noting  that the schedule  shows a cumulative  deficit                                                                   
for  the Board.  Ms. Davidson  pointed out  that the  renewal                                                                   
fees  have been  increased,  which  is expected  to  increase                                                                   
revenues by 45% to sufficiently address the deficit.                                                                            
                                                                                                                                
RICK  URION, DIRECTOR,  DIVISION  OF OCCUPATIONAL  LICENSING,                                                                   
DEPARTMENT  OF  COMMERCE &  ECONOMIC  DEVELOPMENT,  commented                                                                   
that  the  bill   extends  the  Board.    He   brought  up  a                                                                   
housekeeping amendment for the committee's consideration.                                                                       
                                                                                                                                
Co-Chair  Harris  pointed out  that  only the  Co-Chairs  had                                                                   
copies  of  the amendment.  Co-Chair  Williams  advised  that                                                                   
amendments must be  provided to the committee  the day before                                                                   
the hearing on a bill.                                                                                                          
                                                                                                                                
Mr. Urion explained that the bill's  sponsor didn't know that                                                                   
the bill would be heard in the committee today.                                                                                 
                                                                                                                                
Co-Chair  Harris   MOVED  to  ADOPT  Amendment   1.  Co-Chair                                                                   
Williams OBJECTED.                                                                                                              
                                                                                                                                
Co-Chair Williams  announced that  HB 464  would be  moved to                                                                   
the bottom of the calendar.                                                                                                     
                                                                                                                                
HOUSE BILL NO. 464                                                                                                            
                                                                                                                                
     An Act extending the termination date of the Board of                                                                      
     Certified Real Estate Appraisers.                                                                                          
                                                                                                                                
Co-Chair Williams noted the previous  motion on Amendment #1,                                                                   
and he asked Mr. Urion to explain the amendment.                                                                                
                                                                                                                                
RICK  URION, DIRECTOR,  DIVISION  OF OCCUPATIONAL  LICENSING,                                                                   
DEPARTMENT  OF  COMMERCE &  ECONOMIC  DEVELOPMENT,  explained                                                                   
that  the  proposed  amendment  attempts  to  solve  a  long-                                                                   
standing issue  with the Department.  The amendment was  in a                                                                   
bill that  the Governor  intended to  introduce last  session                                                                   
before other  legislation assumed priority. The  amendment is                                                                   
not currently  in a bill.   Mr. Urion said that  the Division                                                                   
of Occupational Licensing  is mandated by law  to charge fees                                                                   
for any profession  that it licenses, and the  fees cover the                                                                   
costs  of regulation.  It  has been  assumed  that fines  for                                                                   
professional violations  are included in those  fees, but Mr.                                                                   
Urion  pointed out  that the  law  does not  allow for  this.                                                                   
Although the collected  fines have always been  divided among                                                                   
occupations, the  Division has been  told that it  cannot use                                                                   
those fines under the current  ethics law, and that it may be                                                                   
in violation of that law.                                                                                                       
                                                                                                                                
Mr. Urion  continued explaining  that the proposed  amendment                                                                   
allows  the division  to  continue  its practice,  and  every                                                                   
licensed  professional   in  the  state  supports   it.    He                                                                   
explained   that   disciplinary  action   involving   hearing                                                                   
officers, investigators  and attorney generals is  one of the                                                                   
biggest expenses  borne by each  profession. He said  that it                                                                   
only seems  fair that  the professions  should also  reap the                                                                   
benefits of  the fines arising  from those actions.  He noted                                                                   
that the  annual average is  $66 thousand, and  the licensing                                                                   
of thousands of  people reaps a tiny benefit.   The amendment                                                                   
would allow the  Division to take the fines  it collects from                                                                   
a  profession  and add  them  to  the  fees charged  for  the                                                                   
license.                                                                                                                        
                                                                                                                                
Amendment #1 reads:                                                                                                             
                                                                                                                                
                                                 23-LS1706\A.1                                                                  
                                                       Mischel                                                                  
                                                                                                                                
                                                                                                                                
                      A M E N D M E N T                                                                                     
                                                                                                                                
                                                                                                                                
OFFERED IN THE HOUSE                  BY REPRESENTATIVE SAMUELS                                                                 
     TO:  HB 464                                                                                                                
                                                                                                                                
                                                                                                                                
Page 1, line 2, following "Appraisers":                                                                                       
   Insert "; and relating to occupational licensing fees                                                                      
and receipts"                                                                                                                 
                                                                                                                                
Page 1, following line 3:                                                                                                       
     Insert new bill sections to read:                                                                                          
   "* Section 1.  AS 08.01.065(c) is amended to read:                                                                       
          (c)  The [EXCEPT AS PROVIDED IN (f) - (i) OF THIS                                                                 
     SECTION, THE] department shall establish fee levels                                                                        
     under (a) of this section so that the total amount of                                                                      
     fees, together with the fines and penalties collected                                                                  
     for all occupations regulated by a board [AN                                                                           
     OCCUPATION] approximately equals the total actual                                                                      
     [REGULATORY] costs of the  board and the department for                                                                
     all occupations regulated by that board [FOR THE                                                                       
     OCCUPATION].  If the department  regulates more than one                                                               
    occupation under another chapter of this title, the                                                                     
     department shall establish the fee levels so that the                                                                  
     total amount of fees, together with the fines and                                                                      
     penalties collected by the department for all                                                                          
     occupations regulated by the department under that                                                                     
     chapter, approximately equals  the total actual costs of                                                               
     the department for all of  the occupations regulated by                                                                
     the department under that chapter.  The department                                                                     
     shall annually review each fee level to determine                                                                          
     whether the [REGULATORY] costs for the relevant                                                                        
     occupations [OF EACH OCCUPATION] are approximately                                                                     
     equal to the fines, penalties, and fee collections                                                                     
     related to those occupations  [THAT OCCUPATION].  If the                                                               
    review indicates that the fines, penalties, and [AN                                                                     
     OCCUPATION'S] fee collections [AND REGULATORY COSTS]                                                                       
     are not approximately equal to the costs for the                                                                       
     relevant occupations, the department shall calculate                                                                   
     fee adjustments and adopt  regulations under (a) of this                                                                   
     section to implement the adjustments.  In January of                                                                       
     each year, the department shall report on all fee                                                                          
     levels and revisions for the previous year under this                                                                      
     subsection to the office  of management and budget.  If                                                                    
     a board regulates an occupation  or group of occupations                                                               
     covered by this chapter,  the department shall consider                                                                    
    the board's recommendations concerning occupational                                                                     
     [THE OCCUPATION'S] fee levels and [REGULATORY] costs                                                                       
     before revising fee schedules to comply with this                                                                          
     subsection.  [IN THIS SUBSECTION, "REGULATORY COSTS"                                                                       
     MEANS COSTS OF THE DEPARTMENT  THAT ARE ATTRIBUTABLE TO                                                                    
     REGULATION OF AN OCCUPATION PLUS                                                                                           
               (1)  ALL EXPENSES OF THE BOARD THAT REGULATES                                                                    
     THE OCCUPATION IF THE BOARD REGULATES ONLY ONE                                                                             
     OCCUPATION;                                                                                                                
               (2)  THE EXPENSES OF A BOARD THAT ARE                                                                            
     ATTRIBUTABLE TO THE OCCUPATION IF THE BOARD REGULATES                                                                      
     MORE THAN ONE OCCUPATION.]                                                                                                 
   * Sec. 2.  AS 08.01.065(f) is amended to read:                                                                             
          (f)  [NOTWITHSTANDING (c) OF THIS SECTION, THE                                                                        
     DEPARTMENT SHALL ESTABLISH  FEE LEVELS UNDER (a) OF THIS                                                                   
     SECTION SO THAT THE TOTAL AMOUNT OF FEES COLLECTED BY                                                                      
     THE STATE BOARD OF REGISTRATION FOR ARCHITECTS,                                                                            
     ENGINEERS, AND LAND SURVEYORS  APPROXIMATELY EQUALS THE                                                                    
     TOTAL REGULATORY COSTS OF  THE DEPARTMENT AND THE BOARD                                                                    
     FOR ALL OCCUPATIONS REGULATED BY THE BOARD.]  The                                                                          
     department shall set [THE]  fee levels under (a) of this                                                               
     section [FOR THE ISSUANCE AND RENEWAL OF A CERTIFICATE                                                                 
     OF REGISTRATION ISSUED UNDER AS 08.48.211] so that the                                                                     
     fee levels are the same for  all occupations regulated                                                                     
     by the State Board of Registration  for Architects,                                                                    
     Engineers, and Land Surveyors  under AS 08.48 [BOARD].                                                                 
   * Sec. 3.  AS 08.01.065(g) is amended to read:                                                                             
          (g)  [NOTWITHSTANDING (c) OF THIS SECTION, THE                                                                        
     DEPARTMENT SHALL ESTABLISH FEE LEVELS UNDER (a) OF THIS                                                                    
     SECTION SO THAT THE TOTAL  AMOUNT OF FEES COLLECTED BY                                                                     
     THE DEPARTMENT FOR ALL OCCUPATIONS  REGULATED UNDER                                                                        
     AS 08.11 APPROXIMATELY EQUALS  THE TOTAL REGULATORY                                                                        
     COSTS OF THE DEPARTMENT FOR  ALL OCCUPATIONS REGULATED                                                                     
     BY THE DEPARTMENT UNDER AS  08.11.]  The department                                                                        
    shall set [THE] fee levels under (a) of this section                                                                    
     [FOR THE ISSUANCE AND RENEWAL OF LICENSES ISSUED UNDER                                                                     
     AS 08.11] so that the fee  levels are the same for all                                                                     
     occupations regulated by the department under AS 08.11.                                                                    
   * Sec. 4.  AS 08.01.065(i) is amended to read:                                                                             
          (i)  [NOTWITHSTANDING (c) OF THIS SECTION, THE                                                                        
     DEPARTMENT SHALL ESTABLISH FEE LEVELS UNDER (a) OF THIS                                                                    
     SECTION SO THAT THE TOTAL  AMOUNT OF FEES COLLECTED BY                                                                     
    THE DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT                                                                        
     FOR SPECIALTY CONTRACTORS, HOME INSPECTORS, AND                                                                            
     ASSOCIATE HOME INSPECTORS  APPROXIMATELY EQUALS THE                                                                        
     TOTAL REGULATORY COSTS OF  THE DEPARTMENT FOR THOSE                                                                        
     THREE REGISTRATION CATEGORIES.]   The department shall                                                                     
     set [THE] fee levels under (a) of this section [FOR THE                                                                
     ISSUANCE AND RENEWAL OF A  CERTIFICATE OF REGISTRATION                                                                     
     ISSUED UNDER AS 08.18] so  that the fee levels are the                                                                     
    same for specialty contractors, home inspectors, and                                                                    
     associate home inspectors under AS 08.18 [ALL THREE OF                                                                 
     THESE REGISTRATION CATEGORIES]  and so that the fee                                                                        
     level for a home inspector with a joint registration is                                                                    
     not different from the fee  level for a home inspector                                                                     
     who does not have a joint registration.  In this                                                                           
     subsection, "joint registration" has the meaning given                                                                     
     in AS 08.18.171."                                                                                                          
                                                                                                                                
Page 1, line 4:                                                                                                                 
     Delete "Section 1"                                                                                                       
     Insert "Sec. 5"                                                                                                          
                                                                                                                                
Page 1, following line 6:                                                                                                       
     Insert new bill sections to read:                                                                                          
   "* Sec. 6.  AS 37.05.146(c)(24) is amended to read:                                                                      
               (24)  receipts of the Department of Community                                                                    
    and Economic Development under AS 08.01.065 and from                                                                    
     fines and penalties collected in licensing and                                                                         
     disciplinary actions for occupations under AS 08.01.010                                                                
     [AS 08.01.065(a), (c), AND (f)];                                                                                           
   * Sec. 7.  AS 08.95.920 is repealed."                                                                                      
                                                                                                                                
                                                                                                                                
Co-Chair  Harris  questioned how  it  would  differ from  the                                                                   
courts' decision  that their collected  fines go  directly to                                                                   
the General Fund to be appropriated by the Legislature.                                                                         
                                                                                                                                
TAPE HFC 04 - 66, Side B                                                                                                      
                                                                                                                              
Co-Chair  Harris  continued, asking  for  clarification  that                                                                   
when the  Division imposed a fine,  the fine returns  for use                                                                   
by   the   Division   rather  than   appropriation   by   the                                                                   
Legislature.  Mr. Urion affirmed.                                                                                               
                                                                                                                                
PAT   DAVIDSON,  LEGISLATIVE   AUDITOR,   LEGISLATIVE   AUDIT                                                                   
DIVISION,  replied that Mr.  Urion brought  up an issue  that                                                                   
concerns   the  Legislative   Audit   Division  relating   to                                                                   
including the  fines.  She noted  that there are a  couple of                                                                   
boards with fewer  than 30 licensees, and a fine  of a couple                                                                   
thousand dollars spread across  only 25 or 30 licensees would                                                                   
mean a benefit of only a couple  hundred dollars to the board                                                                   
which  decided to  impose the  fine.  The concern  is that  a                                                                   
combination  of a  certain  board and  a  certain fine  could                                                                   
raise questions about the Executive Branch Ethics Act.                                                                          
                                                                                                                                
With  regard  to  the  concern   about  other  statutes,  Ms.                                                                   
Davidson said  it is her  understanding that imposing  a fine                                                                   
must  take  place  through  a due  process  conducted  by  an                                                                   
unbiased individual.  Otherwise,  it may end  up in  court on                                                                   
the allegation that the board  can't impose a fine that is so                                                                   
high  that the  board  may appear  to  benefit  from it.  Ms.                                                                   
Davidson  said that  those  are the  only  arguments she  has                                                                   
heard with respect to including  the fines in the calculation                                                                   
of the fees.                                                                                                                    
                                                                                                                                
Co-Chair Harris  asked what the  fines are imposed for.   Mr.                                                                   
Urion  replied  that  it's  varied  and  includes  unlicensed                                                                   
practice  and  drug  and  alcohol abuse.  In  response  to  a                                                                   
question by  Co-Chair Harris,  Mr. Urion answered  that fines                                                                   
are not  imposed for criminal  activity.  The people  who are                                                                   
licensed pay enforcement.                                                                                                       
                                                                                                                                
Co-Chair Harris asked if there  is an unbiased or neutral way                                                                   
these fines  could be appealed.   Mr. Urion explained  that a                                                                   
hearing officer makes  the decision, the board  says "yea" or                                                                   
"nay,"  and the defendant  can  accept it,  or reject it  and                                                                   
take it to the next higher court.                                                                                               
                                                                                                                                
Co-Chair Harris  asked who pays for  the legal fees  if it is                                                                   
taken to the  next higher court, and if the  state reimburses                                                                   
the legal costs  if the person is found innocent.   Mr. Urion                                                                   
replied that to his knowledge,  it has never happened before.                                                                   
                                                                                                                                
In  response to  a  question by  Co-Chair  Harris, Mr.  Urion                                                                   
replied  that the  cases  taken to  higher  court have  never                                                                   
prevailed.  The  hearing officers'  decisions  are  extremely                                                                   
well written  and thorough. He  gave the example of  a recent                                                                   
$20 thousand fine in the real  estate industry, and said that                                                                   
the defendant  accepted it.   He  stated that the  infraction                                                                   
had been  going on  for years,  and it  was the highest  fine                                                                   
ever levied.                                                                                                                    
                                                                                                                                
In  response to  a  question by  Co-Chair  Harris. Mr.  Urion                                                                   
explained  that Amendment #1  applies to  all the boards  and                                                                   
commissions of every profession.                                                                                                
                                                                                                                                
Representative  Hawker  commented  that  the  bill  seems  to                                                                   
change the character  of how the state  assesses occupations,                                                                   
from the individual  to the collective.  He asked  if that is                                                                   
the intent.   Mr. Urion replied that it is  current practice,                                                                   
and would allow an apprentice to pay less than a licensee.                                                                      
                                                                                                                                
Representative  Hawker thought that  the bill indicates  that                                                                   
occupations are  regulated by an individual board,  and would                                                                   
have to meet the costs of that  board. Mr. Urion said that is                                                                   
true.                                                                                                                           
                                                                                                                                
Representative Stoltze  expressed concern that  the amendment                                                                   
has merit  as a stand-alone bill,  and he didn't want  to see                                                                   
the bill  extending the  real estate  appraisers bogged  down                                                                   
with this amendment  when the administration  has the ability                                                                   
to introduce  it through the  Rules Committee. It's  a policy                                                                   
consideration.                                                                                                                  
                                                                                                                                
Co-Chair Williams  stated that  it was  not his intention  to                                                                   
move the bill today.                                                                                                            
                                                                                                                                
Mr.  Urion responded  to Representative  Stoltze,  explaining                                                                   
that he  had brought  the amendment  before Labor &  Commerce                                                                   
Committee, and the Committee wanted  to move the bill and let                                                                   
Finance make the  decision. He would have introduced  it in a                                                                   
bill if he could have.                                                                                                          
                                                                                                                                
Co-Chair Harris asked  how long the bill has  been sitting in                                                                   
Co-Chair Williams's office.  Mr.  Urion was unsure.  Co-Chair                                                                   
asked why the  amendment was not incorporated  into a Finance                                                                   
Committee Substitute  through the office of  the Co-Chairman.                                                                   
Mr.  Urion  apologized,  and said  that  he  tried to  do  it                                                                   
through the sponsor  who was wary of killing  the real estate                                                                   
appraisers  bill. He  asserted  that this  is an  appropriate                                                                   
vehicle  and  title,  and  that   every  licensed  profession                                                                   
supports the amendment.                                                                                                         
                                                                                                                                
Co-Chair  Williams  expressed   concern  that  the  committee                                                                   
members did not have the amendment  earlier, and he suggested                                                                   
that Mr. Urion talk to the Finance members individually.                                                                        
                                                                                                                                
HB  464  was   heard  and  HELD  in  Committee   for  further                                                                   
consideration.                                                                                                                  
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
The meeting was adjourned at 2:40 P.M.                                                                                          

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