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Will the bureau of real estate remove criminal and other information from the public database?

Jun 13th, 2015 | By | Category: Real Estate Broker Law

Reputation and Brand Management for Real Estate Professionals

BRE public records database removal

Breaking Real Estate News – 2016 Cal BRE updates.  California Governor signs AB 1807 that will allow you to remove negative information from the public records database.  Watch Attorney Steve explain in this video!

Cal real estate license attorney

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Introduction

The following is Pre-AB 1807, so please keep that in mind.

What do you do when you have a real estate license or mortgage lending or appraisal license (ex. property manager, MLO, commercial real estate broker, business opportunity salesperson, etc.) and given that you have a prior criminal conviction or prior accusation made against you your records are made available to the public on the BRE public records database.  This hurts your business for sure, but can you have it removed?  Maybe, maybe not.  It may require a court order.

California SB 706

Cal SB 706 is the law that was passed which added B&P 10083.2 to the internet reputation landscape (which is discussed further below).  Read the section below to fully understand what it says.  One of the important topics that arises is that the commissioner “shall” report “information on licensee “suspensions or revocations” but shall NOT provide “personal information, to include….”  But what does this section mean?  What if the information is 20 years old, totally private, and they are now just going to dig up this information and post all the nitty gritty details on the internet, in retroactive fashion in a way that is designed to protect and inform the public, but also has the “impact” of imposing a harsh financial and personal reputation penalty.  What happens?  Do y0u have a reasonable argument for take-down letter?  Will it matter?  Let’s explore further.

California Business & Professions Code Section 10083.2

If you review the California Bureau of Real Estate website, you will find a publication that addresses how the BRE looks at the issue of publicly posting information on the internet.  Click that link to review the article.  As you quickly learn, they are NOT keen on removing things from the internet on the licensee public records database.  As you will note if you review the Bulletin:

“CalBRE will most certainly continue to receive requests to remove certain public information pertaining to criminal convictions and/or discipline from its website. When it does, CalBRE will continue to be unable to comply with those requests. Without either a court order or a modification to Section 10083.2 by the Legislature that specifies the removal of certain information (e.g., a conviction within some period of time after it is expunged) or a time limit for posting public information, CalBRE will continue to implement Section 10083.2 in accordance with its current practice and will not remove public information from its website.”

This appears to be a very firm stance (and makes it all the more important to have your criminal evictions EXPUNGED when and if you can).

One of the code sections the BRE relies on is B&P 10083.2 which states:

Cal Business & Professions Code Section 10083.2 states:

Website – License Status 10083.2. (a) The commissioner shall provide on the Internet information regarding the status of every license issued by the department in accordance with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Information Practices Act of 1977 (Chapter 1 (commencing with Section 1798) of Title 1.8 of Part 4 of Division 3 of the Civil Code). The public information to be provided on the Internet shall include information on suspensions and revocations of licenses issued by the department and accusations filed pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code) relative to persons or businesses subject to licensure or regulation by the department. The information shall not include personal information, including home telephone number, date of birth, or social security number. The commissioner shall disclose a licensee’s address of record. However, the commissioner shall allow a licensee to provide a post office box number or other alternate address, instead of his or her home address, as the address of record. This section shall not preclude the commissioner from also requiring a licensee who has provided a post office box number or other alternative mailing address as his or her address of record to provide a physical business address or residence address only for the department’s internal administrative use and not for disclosure as the licensee’s address of record or disclosure on the Internet. (b) For purposes of this section, “Internet” has the meaning set forth in paragraph (6) of subdivision (f) of Section 17538.

QUERY:  What does “information” mean?  The phrase appears to limit the internet postings to “information on revocations and suspensions.”  The plain meaning of this statute is to authorize, and direct (the word “shall” is used) post “information” regarding “revocations” or “suspensions.”  But does this mean the regulatory agencies are allowed to post all the NITTY GRITTY DETAILS?  Or just the FACT OF the “suspension” or “revocation”?  This might be a question of statutory interpretation.  Clearly the idea and mission of the CalBRE is to best “protect the public.”  But just what does the public need to know to be protected?  If I know someone was suspended, I don’t really need to know all the nitty gritty details of a criminal conviction for example, I have already moved on to the next agent if that is important to me.  So this is not an easy question to answer.

When was B&P 10083.2 Passed?

This law was effective: January 1, 2012.  

Does B&P 10083.2 or SB 706 apply retroactively?

This is a tougher question.  If a legislature wants a law to apply retroactively it can simply say so.  There is no difficulty in making this happen.  Yet this is not always a simple question and the case law is all over the place.  Whether or not these law apply “retroactively” to authorize and allow the BRE to dig up old records (from pre 2012 BRE accusations, suspensions and license revocations) is not clear.  Normally when a law is passed it is deemed to be “prospective only” (operating only on future events) and not “retroactively” (applying to prior or old events).  However, as mentioned, we look to the case-law for guidance:

Argument for prospective application only:

“In the years since Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, Mannheim, supra, 3 Cal.3d 678, 91 Cal.Rptr. 585, 478 P.2d 17, and Marriage of Bouquet, supra, 16 Cal.3d 583, 128 Cal.Rptr. 427, 546 P.2d 1371, both this court and the Courts of Appeal have generally commenced analysis of the question of whether a statute applies retroactively with a restatement of the fundamental principle that “legislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention.” (See, e.g., Fox v. Alexis (1985) 38 Cal.3d 621, 637, 214 Cal.Rptr. 132, 699 P.2d 309; White v. Western Title Co., supra, 40 Cal.3d 870, 884, 221 Cal.Rptr. 509, 710 P.2d 309; Hoffman v. Board of Retirement (1986) 42 Cal.3d 590, 593, 229 Cal.Rptr. 825, 724 P.2d 511; Baker v. Sudo (1987) 194 Cal.App.3d 936, 943, 240 Cal.Rptr. 38; Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1156, 221 Cal.Rptr. 675; Glavinich v. Commonwealth Land Title Ins. Co., supra, 163 Cal.App.3d 263, 272, 209 Cal.Rptr. 266.). These numerous precedents demonstrate that California continues to adhere to the time-honored principle, codified by the Legislature in Civil Code section 3 and similar provisions, that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.”

See Evangelatos v. Superior Court, 44 Cal. 3d 1188, 1208, 753 P.2d 585, 598 (1988).  If this rationale applies, perhaps only new suspensions and new revocation of real estate brokers, property managers, mortgage loan officers and appraisers should be reported on internet websites for all the world to see.  As the law indicates:  “In California, a statute or state constitutional provision that is enacted “is presumed to operate prospectively, absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.”  See Tapia v. Superior Court, 53 Cal. 3d 282, 279 Cal. Rptr. 592, 807 P.2d 434 (1991).

Is there an “Ex post facto” law violation involved when the DRE or BRE digs up old criminal convictions and posts them on the internet (in a purported attempt to “inform the public” but with the EFFECT of re-punishing the licensee for the prior crime?

A statute violates the ex post facto clause of the federal Constitution (also applicable to the states and their agencies) if it either:
(1) makes criminal an act that was not criminal at the time it was done;
or
(2) increases the penalty for a crime after its commission;
or
(3) deprives an accused of a defense available at the time the act was committed.
LEGAL ARGUMENT:  I would argue that at the time the criminal offense was committed, part of the penalty was NOT a public flogging on the internet (especially from really old criminal convictions where the internet may not yet have been operating commercially) and that by now digging up the old convictions (even after agents and brokers are deemed “rehabilitated” by the real estate commissioner and allowed to proceed in their chosen professions) that this new public flogging (due the the passage of new laws and statutes such as SB 706 and B&P 10083.2 which apparently are being applied retroactively), this “increases the penalty” of the crime and violates the constitution.
The California Supreme Court has stated in defining the ex post facto clause found in both the California and the federal Constitutions:
“Each prohibits retroactive application to a criminal defendant of a statue or statutory amendment which enlarges the elements of an offense—making criminal conduct that was encompassed within the statutory definition of the offense at the time of the defendant’s conduct, lessens the People’s burden of proof, or increases the penalty over that in effect at the time of the crime. See People v. Jennings, 46 Cal. 3d 963, 984, 251 Cal. Rptr. 278, 760 P.2d 475 (1988)).  Among the protections afforded by the Ex Post Facto Clause is preventing legislative enactments which, by retroactive operation, increase the punishment for a crime after its commission (Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990).”
Any way you look at these issues, if you want to make the demand to the BRE, you might not get the result you want and might have to take further legal action (ex. challenge the unconstitutionality of the application of the law in your particular circumstance), or look to the tort of publication of private facts.

What is the tort in California “private publication of facts” (a Privacy Tort)?

Not that you would want to “sue your regulator” nor would I advise it, but if you are being penalized by a very old conviction due to recent posting on the internet, could this for sake of conversation rise to a Privacy tort?

California case law discusses this concept.  For example, in Taus v. Loftus, 40 Cal. 4th 683, 717, 151 P.3d 1185, 1207 (2007) the Court noted:

Public–Disclosure–of–Private–Facts

“In this court’s decision in Shulman, supra, 18 Cal.4th 200, 214, 74 Cal.Rptr.2d 843, 955 P.2d 469, we set forth the elements of the public-disclosure-of-private-facts tort as follows: “(1) public disclosure, (2) of a private fact, (3) which would be offensive and objectionable to the reasonable person, and (4) which is not of legitimate public concern.’ ” In discussing the fourth element, we explained in Shulman  that “lack of newsworthiness is an element of the ‘private facts’ tort, making newsworthiness a complete bar to common law liability.” (Id. at p. 215, 74 Cal.Rptr.2d 843, 955 P.2d 469.)”

There may exceptions and governmental immunities that apply so you would need to do further research if interested in the topic.

California Appraisers who are disciplined will have their license status posted on the internet per California Business & Professions Code section 11317

Cal. Bus. & Prof. Code § 11317 states:

The office shall publish a summary of public disciplinary actions taken by the office, including resignations while under investigation and the violations upon which these actions are based, which shall meet, at a minimum, the requirements of the appraisal subcommittee. The office shall not publish identifying information with respect to private reprovals or letters of warning, which shall remain confidential.

If I enter into a “cite and fine” settlement with the CalBRE will this go on the internet website of the DRE?

From what I am informed agreeing to pay a “CalBRE cite and fine” DOES NOT trigger mandatory reporting requirements with the BRE, but I would always confirm that will be the deal before you enter into an agreement with them.

2016 UPDATE – New law proposed to limit license discipline history on BRE public records database.

According to the C.A.R. website:

FYI – The Bill still seeks a 10 year reporting period.

AB 1807 (Bonta) Disciplinary Action Notice: Reporting Time Limit – Current law requires that a discipline notice against a licensee’s name in the California Bureau of Real Estate’s database be reported indefinitely, even if the licensee has been rehabilitated and the license penalty (i.e., suspension or restriction) has been removed. This bill would limit to 10 years the time that a notice of disciplinary action is reported against a licensee’s name when a search is made of the CalBRE database. Status: Assembly Business and Professions Committee.

Contact a California BRE Real Estate Defense Lawyer

If you need help in any real estate law matters, we can help you.  We cannot guarantee we can get negative information pulled down off the internet, but we are always willing to try.  Everyone deserves a second chance and ability to earn a living in their profession of choice.  We all make mistakes.  We handle cases from real estate commission disputes, investigations, accusations, cite and fine cases, property management audits, commercial real estate, transactions, arbitrations, and general real estate litigation.  We can be reached at (877) 276-5084.  You can always fill out the contact form below as well.

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen, ME2 Productions and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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