H. B. 2497
(By Delegates Skaff, Stowers, E. Nelson, D. Campbell, White, Ferns, Craig, Morgan, Poore and Marcum)
(Originating in the Committee on the Judiciary)
[March 11, 2013]
A BILL to amend and reenact §30-40-11 of the Code of West Virginia, 1931, as amended, relating to application for a real estate license; requiring applicants for real estate licensure to undergo criminal history record checks; declaring the criminal history record check requirement is not against public policy; requiring applicants to submit fingerprints for the criminal history record check; requiring applicants to authorize the use of fingerprints to conduct the criminal history record check; prohibiting the release of criminal history records except in certain limited circumstances; declaring that criminal history records are not subject to the Freedom of Information Act; requiring the applicant to ensure that the criminal history record check is completed within ninety days of licensure application; requiring the applicant to pay the actual costs of the criminal history record check; requiring the commission to promulgate a legislative rule to make the procedures and requirements consistent with federal standards before implementing the requirement for criminal history record checks; and requiring the commission to issue a license to an attorney in good standing.
Be it enacted by the Legislature of West Virginia:
That §30-40-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 40. WEST VIRGINIA REAL ESTATE LICENSE ACT.
§30-40-11. Application for license.
The commission shall only issue an original license to an applicant if he or she:
(a) Submits an application, in writing, in a form prescribed by the commission which must contain, but is not limited to:
(1) The applicant’s social security number;
(2) The recommendation of at least two persons who:
(A) Are property owners at the time of signing the application;
(B) Have been property owners for at least twelve months preceding the signing of the application;
(C) Have known the applicant for at least two years;
(D) Are not related to the applicant;
(E) Are not affiliated with the applicant as an employer, partner or associate or with the broker that will employ the applicant;
(F) Believe the applicant bears a good reputation for honesty, trustworthiness and fair dealing; and
(G) Believe the applicant is competent to transact the business of a real estate broker, associate broker or salesperson, as the case may be, in a manner that would protect the interest of the public.
(3) A clear record indicating all jurisdictions where the applicant holds or has held any professional license.
(4) A clear record indicating if the applicant has been convicted of any criminal offense or if there is any criminal charge pending against the applicant, or a member or officer of the brokerage business, at the time of application.
(b) Is at least eighteen years of age.
(c) Is a high school graduate or the holder of an equivalency diploma.
(d) Is trustworthy, of good moral character and competent to transact the business of a broker, associate broker or salesperson.
(e) Has paid the appropriate fee, if any, which must accompany all applications for original license or renewal.
(f) Has submitted to a state and national criminal history record check, as set forth in this subsection.
(1) This requirement is found not to be against public policy.
(2) The criminal history record check shall be based on fingerprints submitted to the West Virginia State Police or its assigned agent for forwarding to the Federal Bureau of Investigation.
(3) The applicant shall meet all requirements necessary to accomplish the state and national criminal history record check, including:
(A) Submitting fingerprints for the purposes set forth in this subsection; and
(B) Authorizing the commission, the West Virginia State Police and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for a license.
(4) The results of the state and national criminal history record check may not be released to or by a private entity except:
(A) To the individual who is the subject of the criminal history record check;
(B) With the written authorization of the individual who is the subject of the criminal history record check; or
(C) Pursuant to a court order.
(5) The criminal history record check and related records are not public records for the purposes of chapter twenty-nine-b of this code.
(6) The applicant shall ensure that the criminal history record check is completed within ninety days of the date of the original licensure application. If the commission does not receive the criminal history record check within the required timeframe, the commission shall return the application to the applicant.
(7) The applicant shall pay the actual costs of the fingerprinting and criminal history record check.
(8) Before implementing the provisions of this subsection, the commission shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code. The rules shall set forth the requirements and procedures for the criminal history check and must be consistent with standards established by the Federal Bureau of Investigation and the National Crime Prevention and Privacy Compact as authorized by 42 U.S.C.A. §14611, et seq.
(g) If the applicant is an attorney at law the commission shall issue an original salesperson’s license to an applicant if he or she submits a letter of good standing from the Clerk of the Supreme Court of Appeals of West Virginia.