BILL NUMBER: AB 3034 CHAPTERED
BILL TEXT
CHAPTER 664
FILED WITH SECRETARY OF STATE SEPTEMBER 18, 2002
APPROVED BY GOVERNOR SEPTEMBER 17, 2002
PASSED THE ASSEMBLY AUGUST 19, 2002
PASSED THE SENATE AUGUST 14, 2002
AMENDED IN SENATE JUNE 20, 2002
AMENDED IN SENATE MAY 21, 2002
INTRODUCED BY Committee on Judiciary (Corbett (Chair), Dutra,
Jackson, Longville, Shelley, Steinberg, and Wayne)
MARCH 12, 2002
An act to amend Sections 805.2, 1680, 2028, 2249, 2313, 2401,
3508, 4052, 4982.05, 5081.1, 5093, 6060, 6062, 6072, 6450, 7685,
8008, 8020, 8027, 8538, 8560, 10153.6, 10176.1, 13405, 19455,
19549.14, 20007, and 23987 of the Business and Professions Code, to
amend Sections 43.8, 789, 827, 1102.6, 1375, 1375.05, 1632, 1708,
1748.13, 1785.11, 1785.11.2, 1798.85, 1936, 1940.7.5, and 3110.5 of
the Civil Code, to amend Sections 116.950, 488.455, 700.140, 912,
1162, 1174.3, 1206, and 1299.3 of the Code of Civil Procedure, to
amend Sections 25607 and 31011 of the Corporations Code, to amend
Sections 8277.6, 8278.3, 17250.30, 19325.1, 24209.3, 44303, 44468,
47634.2, 48431.6, 49431, 49433.9, 51727, 56404, 64001, 89005.5,
94945, and 99226 of, and to amend and renumber Section 92665.1 of,
the Education Code, to amend Sections 1405, 2185, 3017, 3201, and
13102 of, and to add a heading to Chapter 2 (commencing with Section
21100) of Division 21 of, the Elections Code, to amend Section 8814.5
of the Family Code, to amend Section 21200.1 of the Financial Code,
to amend Sections 1103, 6047.7, 8769, 8770, 20437, 21052, and 75090.5
of the Food and Agricultural Code, to amend Sections 1091.3, 9353.5,
9353.6, 9353.7, 9355, 9355.1, 9355.16, 9355.2, 9355.4, 9355.45,
9355.5, 9355.7, 9355.8, 9356, 9356.1, 9356.15, 9356.2, 9356.3,
9356.5, 9357, 9357.05, 9357.1, 9357.2, 9357.4, 9357.45, 9357.46,
9357.5, 9359.15, 9359.16, 9359.17, 9359.4, 9359.85, 9359.95, 9360.3,
9360.4, 9360.5, 9360.6, 9360.7, 9360.11, 9361.1, 9361.2, 9361.3,
9361.4, 9371, 9374, 9375, 9378, 9509, 11126, 11550, 12800, 12940,
12965, 13964, 13965, 14672.99, 14684, 19574, 20423.5, 20429, 20683.2,
20816, 21327, 21354.3, 21354.4, 21354.5, 21363, 21423, 21661, 30071,
31461.45, 31491.1, 31491.2, 31676.17, 31676.19, 31966, 32271, 53601,
56334, 65892.13, 67940, 68110, 71639.1 75028.5, 75029, 75030.9,
75031, 75033, 75060.1, 75077, 75083, 75095.5, 75104, 75104.4,
75104.5, and 75106 of, and to add the heading of Article 2.11
(commencing with Section 65892.13) to Chapter 4 of Division 1 of
Title 7 of, the Government Code, to repeal Section 71.7 of the
Harbors and Navigation Code, to amend Sections 1276.65, 11054, 11377,
11382, 25395.20, 26148, 32121, 33334.2, 33334.22, 33368, 33430,
41705, 42801.1, 42840, 44265, 51452, 104324.2, 114090, and 130140.1
of, to amend the heading of Chapter 5 (commencing with Section
127630) of Part 2 of Division 107 of, to amend and renumber the
heading of Chapter 2.5 (commencing with Section 1399.900) of Division
2 of, and to repeal Section 33331.5 of, the Health and Safety Code,
to amend Sections 1874.85, 10139.5, 10145.4, and 12699.56 of the
Insurance Code, to amend Sections 98.7, 230.1, 1161, 1776, 2695.1,
2695.2, 3212, 3212.10, 9102, and 9103 of the Labor Code, to amend
Section 1011 of the Military and Veterans Code, to amend Sections 68,
86, 290, 299.5, 637.5, 1370, 11174.4, 12035, 12071, and 12078 of,
and to amend the heading of Title 10.2 (commencing with Section
14125) of Part 4 of, the Penal Code, to amend Sections 2620.2 and
6122 of the Probate Code, to amend Sections 615, 5095.2, 21158.6,
21167.7, 25403.5, 31007, 42645, and 71040 of, and to amend and
renumber the heading of Article 5 (commencing with Section 5096.652)
of Chapter 1.696 of Division 2 of, the Public Resources Code, to
amend Sections 331, 332.1, 332.2, 399.6, 2774.5, 3350, 170016, and
170018 of the Public Utilities Code, to amend Sections 62.1, 756,
11273, 12209, 17053.57, 17073, 17942, 18836, 19551.1, 20543, 21015.6,
23684, and 32402 of the Revenue and Taxation Code, to amend Section
730.5 of the Streets and Highways Code, to amend Section 15076.5 of
the Unemployment Insurance Code, to amend Sections 286, 672, 5017,
5068, 9250.7, 12517.5, 12811, 14602.6, 14602.7, 15302, 15620, and
23580 of the Vehicle Code, to amend Sections 10013, 10610.2, 10631,
11912, and 13627.4 of the Water Code, to amend Sections 213.5, 727.4,
903.5, 9320, 9681, 11203, 14087.961, 14103.5, 14132.99, 15657, and
19000 of the Welfare and Institutions Code, and to amend Section 5 of
the Santa Clara Valley Water District Act (Chapter 1405 of the
Statutes of 1951), relating to maintenance of the codes.
LEGISLATIVE COUNSEL'S DIGEST
AB 3034, Committee on Judiciary. Maintenance of the codes.
Existing law directs the Legislative Counsel to advise the
Legislature from time to time as to legislation necessary to maintain
the codes.
This bill would restate existing provisions of law to effectuate
the recommendations made by the Legislative Counsel to the
Legislature for consideration during 2001, and would not make any
substantive change in the law.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 805.2 of the Business and Professions Code is
amended to read:
805.2. (a) It is the intent of the Legislature to provide for a
comprehensive study of the peer review process as it is conducted by
peer review bodies defined in paragraph (1) of subdivision (a) of
Section 805, in order to evaluate the continuing validity of Section
805 and Sections 809 to 809.8, inclusive, and their relevance to the
conduct of peer review in California. The Medical Board of
California shall contract with the Institute for Medical Quality to
conduct this study, which shall include, but not be limited to, the
following components:
(1) A comprehensive description of the various steps of
decisionmakers in the peer review process as it is conducted by peer
review bodies throughout the state, including the role of other
related committees of acute care health facilities and clinics
involved in the peer review process.
(2) A survey of peer review cases to determine the incidence of
peer review by peer review bodies and whether they are complying with
the reporting requirement in Section 805.
(3) A description and evaluation of the roles and performance of
various state agencies, including the State Department of Health
Services and occupational licensing agencies that regulate healing
arts professionals, in receiving, reviewing, investigating, and
disclosing peer review actions, and in sanctioning peer review bodies
for failure to comply with Section 805.
(4) An assessment of the cost of peer review to licentiates and
the facilities which employ them.
(5) An assessment of the time consumed by the average peer review
proceeding, including the hearing provided pursuant to Section 809.2,
and a description of any difficulties encountered by either
licentiates or facilities in assembling peer review bodies or panels
to participate in peer review decisionmaking.
(6) An assessment of the need to amend Section 805 and Sections
809 to 809.8, inclusive, to ensure that they continue to be relevant
to the actual conduct of peer review as described in paragraph (1),
to evaluate whether the current reporting requirement is yielding
timely and accurate information to aid licensing boards in their
responsibility to regulate and discipline healing arts practitioners
when necessary, and to assure that peer review bodies function in the
best interest of patient care.
(7) Recommendations of additional mechanisms to stimulate the
appropriate reporting of peer review actions under Section 805.
(8) Recommendations regarding the Section 809 hearing process to
improve its overall effectiveness and efficiency.
(b) The Institute of Medical Quality shall exercise no authority
over the peer review processes of peer review bodies. However, peer
review bodies, health care facilities, health care clinics, and
health care service plans shall cooperate with the institute and
provide data, information, and case files as requested in the
timeframe specified by the institute.
(c) The institute shall work in cooperation with and under the
general oversight of the Medical Director of the Medical Board of
California and shall submit a written report with its findings and
recommendations to the board and the Legislature no later than
November 1, 2002.
SEC. 2. Section 1680 of the Business and Professions Code is
amended to read:
1680. Unprofessional conduct by a person licensed under this
chapter is defined as, but is not limited to, the violation of any
one of the following:
(a) The obtaining of any fee by fraud or misrepresentation.
(b) The employment directly or indirectly of any student or
suspended or unlicensed dentist to practice dentistry as defined in
this chapter.
(c) The aiding or abetting of any unlicensed person to practice
dentistry.
(d) The aiding or abetting of a licensed person to practice
dentistry unlawfully.
(e) The committing of any act or acts of gross immorality
substantially related to the practice of dentistry.
(f) The use of any false, assumed, or fictitious name, either as
an individual, firm, corporation, or otherwise, or any name other
than the name under which he or she is licensed to practice, in
advertising or in any other manner indicating that he or she is
practicing or will practice dentistry, except that name as is
specified in a valid permit issued pursuant to Section 1701.5.
(g) The practice of accepting or receiving any commission or the
rebating in any form or manner of fees for professional services,
radiograms, prescriptions, or other services or articles supplied to
patients.
(h) The making use by the licentiate or any agent of the
licentiate of any advertising statements of a character tending to
deceive or mislead the public.
(i) The advertising of either professional superiority or the
advertising of performance of professional services in a superior
manner. This subdivision shall not prohibit advertising permitted by
subdivision (h) of Section 651.
(j) The employing or the making use of solicitors.
(k) The advertising in violation of Section 651.
(l) The advertising to guarantee any dental service, or to perform
any dental operation painlessly. This subdivision shall not
prohibit advertising permitted by Section 651.
(m) The violation of any of the provisions of law regulating the
procurement, dispensing, or administration of dangerous drugs, as
defined in Article 7 (commencing with Section 4211) of Chapter 9, or
controlled substances, as defined in Division 10 (commencing with
Section 11000) of the Health and Safety Code.
(n) The violation of any of the provisions of this division.
(o) The permitting of any person to operate dental radiographic
equipment who has not met the requirements of Section 1656.
(p) The clearly excessive prescribing or administering of drugs or
treatment, or the clearly excessive use of diagnostic procedures, or
the clearly excessive use of diagnostic or treatment facilities, as
determined by the customary practice and standards of the dental
profession.
Any person who violates this subdivision is guilty of a
misdemeanor and shall be punished by a fine of not less than one
hundred dollars ($100) or more than six hundred dollars ($600), or by
imprisonment for a term of not less than 60 days or more than 180
days, or by both a fine and imprisonment.
(q) The use of threats or harassment against any patient or
licentiate for providing evidence in any possible or actual
disciplinary action, or other legal action; or the discharge of an
employee primarily based on the employee's attempt to comply with the
provisions of this chapter or to aid in the compliance.
(r) Suspension or revocation of a license issued, or discipline
imposed, by another state or territory on grounds which would be the
basis of discipline in this state.
(s) The alteration of a patient's record with intent to deceive.
(t) Unsanitary or unsafe office conditions, as determined by the
customary practice and standards of the dental profession.
(u) The abandonment of the patient by the licentiate, without
written notice to the patient that treatment is to be discontinued
and before the patient has ample opportunity to secure the services
of another dentist and provided the health of the patient is not
jeopardized.
(v) The willful misrepresentation of facts relating to a
disciplinary action to the patients of a disciplined licentiate.
(w) Use of fraud in the procurement of any license issued pursuant
to this chapter.
(x) Any action or conduct which would have warranted the denial of
the license.
(y) The aiding or abetting of a licensed dentist or dental
auxiliary to practice dentistry in a negligent or incompetent manner.
(z) The failure to report to the board in writing within seven
days any of the following: (1) the death of his or her patient
during the performance of any dental procedure; (2) the discovery of
the death of a patient whose death is related to a dental procedure
performed by him or her; or (3) except for a scheduled
hospitalization, the removal to a hospital or emergency center for
medical treatment for a period exceeding 24 hours of any patient to
whom oral conscious sedation, conscious sedation, or general
anesthesia was administered, or any patient as a result of dental
treatment. With the exception of patients to whom oral conscious
sedation, conscious sedation, or general anesthesia was administered,
removal to a hospital or emergency center that is the normal or
expected treatment for the underlying dental condition is not
required to be reported. Upon receipt of a report pursuant to this
subdivision the board may conduct an inspection of the dental office
if the board finds that it is necessary.
(aa) Participating in or operating any group advertising and
referral services that are in violation of Section 650.2.
(bb) The failure to use a fail-safe machine with an appropriate
exhaust system in the administration of nitrous oxide. The board
shall, by regulation, define what constitutes a fail-safe machine.
(cc) Engaging in the practice of dentistry with an expired
license.
(dd) Except for good cause, the knowing failure to protect
patients by failing to follow infection control guidelines of the
board, thereby risking transmission of blood-borne infectious
diseases from dentist or dental auxiliary to patient, from patient to
patient, and from patient to dentist or dental auxiliary. In
administering this subdivision, the board shall consider referencing
the standards, regulations, and guidelines of the State Department of
Health Services developed pursuant to Section 1250.11 of the Health
and Safety Code and the standards, guidelines, and regulations
pursuant to the California Occupational Safety and Health Act of 1973
(Part 1 (commencing with Section 6300), Division 5, Labor Code) for
preventing the transmission of HIV, hepatitis B, and other
blood-borne pathogens in health care settings. As necessary, the
board shall consult with the Medical Board of California, the Board
of Podiatric Medicine, the Board of Registered Nursing, and the Board
of Vocational Nursing and Psychiatric Technicians, to encourage
appropriate consistency in the implementation of this subdivision.
The board shall seek to ensure that licentiates and others
regulated by the board are informed of the responsibility of
licentiates and others to follow infection control guidelines, and of
the most recent scientifically recognized safeguards for minimizing
the risk of transmission of blood-borne infectious diseases.
(ee) The utilization by a licensed dentist of any person to
perform the functions of a registered dental assistant, registered
dental assistant in extended functions, registered dental hygienist,
or registered dental hygienist in extended functions who, at the time
of initial employment, does not possess a current, valid license to
perform those functions.
SEC. 3. Section 2028 of the Business and Professions Code is
amended to read:
2028. (a) The Medical Board of California shall consult with the
California State Board of Pharmacy and commission a study and report
its results to the Legislature on or before January 1, 2003, on the
electronic transmission of prescriptions by physicians and surgeons.
(b) This report shall include recommendations on the following
matters:
(1) Whether the electronic transmission of prescriptions should be
encouraged.
(2) Methods to encourage physicians and surgeons, health care
providers specified in subdivision (a) of Section 4024, and persons
licensed to prescribe in another state who meet the requirements
described in subdivision (b) of Section 4005 to issue prescriptions
by electronic transmission.
(3) Identification of systems to protect confidential personal and
medical information of patients for whom prescriptions are issued
using electronic transmission, including, but not limited to, the
issuance of digital certification to physicians and surgeons, health
care providers specified in subdivision (a) of Section 4024, and
persons licensed to prescribe in another state who meet the
requirements described in subdivision (b) of Section 4005 to use when
transmitting prescriptions electronically.
(c) "Digital certification" is an electronic signature verifying
the identity of the physician and surgeon, health care provider
specified in subdivision (a) of Section 4024, or person licensed to
prescribe in another state who meets the requirements described in
subdivision (b) of Section 4005 who is transmitting the prescription
electronically.
SEC. 4. Section 2249 of the Business and Professions Code is
amended to read:
2249. (a) A physician and surgeon primarily responsible for
providing a patient an annual gynecological examination shall provide
that patient during the annual examination in layperson's language
and in a language understood by the patient a standardized summary
containing a description of the symptoms and appropriate methods of
diagnoses for gynecological cancers. This section does not preclude
the use of existing publications or pamphlets developed by nationally
recognized cancer organizations or by the State Department of Health
Services pursuant to Section 138.4 of the Health and Safety Code.
(b) A physician and surgeon who violates this section may be cited
and assessed an administrative fine. No citation shall be issued
and no fine shall be assessed upon the first complaint against a
physician and surgeon who violates this section. Upon the second and
subsequent complaints against a physician and surgeon who violates
this section, a citation may be issued and an administrative fine may
be assessed.
(c) Notwithstanding any other provision of law, all fines
collected pursuant to this section shall be credited to the
Contingent Fund of the Medical Board of California to be used by the
Office of Women's Health within the State Department of Health
Services for outreach services that provide information to women
about gynecological cancers, but shall not be expended until they are
appropriated by the Legislature in the Budget Act or another
statute.
(d) Section 2314 shall not apply to this section.
SEC. 5. Section 2313 of the Business and Professions Code is
amended to read:
2313. The Division of Medical Quality shall report annually to
the Legislature, no later than October 1 of each year, the following
information:
(a) The total number of temporary restraining orders or interim
suspension orders sought by the board or the division to enjoin
licensees pursuant to Sections 125.7, 125.8, and 2311, the
circumstances in each case that prompted the board or division to
seek that injunctive relief, and whether a restraining order or
interim suspension order was actually issued.
(b) The total number and types of actions for unprofessional
conduct taken by the board or a division against licensees, the
number and types of actions taken against licensees for
unprofessional conduct related to prescribing drugs, narcotics, or
other controlled substances, including those related to the
undertreatment or undermedication of pain.
(c) Information relative to the performance of the division,
including the following: number of consumer calls received; number
of consumer calls or letters designated as discipline-related
complaints; number of calls resulting in complaint forms being sent
to complainants and number of forms returned; number of Section 805
reports by type; number of Section 801 and Section 803 reports;
coroner reports received; number of convictions reported to the
division; number of criminal filings reported to the division; number
of complaints and referrals closed, referred out, or resolved
without discipline, respectively, prior to accusation; number of
accusations filed and final disposition of accusations through the
division and court review, respectively; final physician discipline
by category; number of citations issued with fines and without fines,
and number of public reprimands issued; number of cases in process
more than six months from receipt by the division of information
concerning the relevant acts to the filing of an accusation; average
and median time in processing complaints from original receipt of
complaint by the division for all cases at each stage of discipline
and court review, respectively; number of persons in diversion, and
number successfully completing diversion programs and failing to do
so, respectively; probation violation reports and probation
revocation filings and dispositions; number of petitions for
reinstatement and their dispositions; and caseloads of investigators
for original cases and for probation cases, respectively.
"Action," for purposes of this section, includes proceedings
brought by, or on behalf of, the division against licensees for
unprofessional conduct which have not been finally adjudicated, as
well as disciplinary actions taken against licensees.
(d) The total number of reports received pursuant to Section 805
by the type of peer review body reporting and, where applicable, the
type of health care facility involved and the total number and type
of administrative or disciplinary actions taken by the Medical Board
of California with respect to the reports.
SEC. 6. Section 2401 of the Business and Professions Code is
amended to read:
2401. (a) Notwithstanding Section 2400, a clinic operated
primarily for the purpose of medical education by a public or private
nonprofit university medical school, which is approved by the
Division of Licensing or the Osteopathic Medical Board of California,
may charge for professional services rendered to teaching patients
by licensees who hold academic appointments on the faculty of the
university, if the charges are approved by the physician and surgeon
in whose name the charges are made.
(b) Notwithstanding Section 2400, a clinic operated under
subdivision (p) of Section 1206 of the Health and Safety Code may
employ licensees and charge for professional services rendered by
those licensees. However, the clinic shall not interfere with,
control, or otherwise direct the professional judgment of a physician
and surgeon in a manner prohibited by Section 2400 or any other
provision of law.
(c) Notwithstanding Section 2400, a narcotic treatment program
operated under Section 11876 of the Health and Safety Code and
regulated by the State Department of Alcohol and Drug Programs, may
employ licensees and charge for professional services rendered by
those licensees. However, the narcotic treatment program shall not
interfere with, control, or otherwise direct the professional
judgment of a physician and surgeon in a manner prohibited by Section
2400 or any other provision of law.
SEC. 7. Section 3508 of the Business and Professions Code is
amended to read:
3508. (a) The committee may convene from time to time as deemed
necessary by the committee.
(b) Notice of each meeting of the committee shall be given at
least two weeks in advance to those persons and organizations who
express an interest in receiving notification.
(c) The committee shall receive permission of the director to meet
more than six times annually. The director shall approve meetings
that are necessary for the committee to fulfill its legal
responsibilities.
SEC. 8. Section 4052 of the Business and Professions Code is
amended to read:
4052. (a) Notwithstanding any other provision of law, a
pharmacist may:
(1) Furnish a reasonable quantity of compounded medication to a
prescriber for office use by the prescriber.
(2) Transmit a valid prescription to another pharmacist.
(3) Administer, orally or topically, drugs and biologicals
pursuant to a prescriber's order.
(4) Perform the following procedures or functions in a licensed
health care facility in accordance with policies, procedures, or
protocols developed by health professionals, including physicians,
pharmacists, and registered nurses, with the concurrence of the
facility administrator:
(A) Ordering or performing routine drug therapy-related patient
assessment procedures including temperature, pulse, and respiration.
(B) Ordering drug therapy-related laboratory tests.
(C) Administering drugs and biologicals by injection pursuant to a
prescriber's order (the administration of immunizations under the
supervision of a prescriber may also be performed outside of a
licensed health care facility).
(D) Initiating or adjusting the drug regimen of a patient pursuant
to an order or authorization made by the patient's prescriber and in
accordance with the policies, procedures, or protocols of the
licensed health care facility.
(5) (A) Perform the following procedures or functions as part of
the care provided by a health care facility, a licensed home health
agency, a licensed clinic in which there is a physician oversight, a
provider who contracts with a licensed health care service plan with
regard to the care or services provided to the enrollees of that
health care service plan, or a physician, in accordance, as
applicable, with policies, procedures, or protocols of that facility,
the home health agency, the licensed clinic, the health care service
plan, or that physician, in accordance with subparagraph (C):
(i) Ordering or performing routine drug therapy-related patient
assessment procedures including temperature, pulse, and respiration.
(ii) Ordering drug therapy-related laboratory tests.
(iii) Administering drugs and biologicals by injection pursuant to
a prescriber's order (the administration of immunizations under the
supervision of a prescriber may also be performed outside of a
licensed health care facility).
(iv) Initiating or adjusting the drug regimen of a patient
pursuant to a specific written order or authorization made by the
patient's prescriber for the individual patient, and in accordance
with the policies, procedures, or protocols of the health care
facility, home health agency, licensed clinic, health care service
plan, or physician. Adjusting the drug regimen does not include
substituting or selecting a different drug, except as authorized by
the protocol. The pharmacist shall provide written notification to
the patient's prescriber, or enter the appropriate information in an
electronic patient record system shared by the prescriber, of any
drug regimen initiated pursuant to this clause within 24 hours.
(B) A patient's prescriber may prohibit, by written instruction,
any adjustment or change in the patient's drug regimen by the
pharmacist.
(C) The policies, procedures, or protocols referred to in this
paragraph shall be developed by health care professionals, including
physicians, pharmacists, and registered nurses, and, at a minimum,
meet all of the following requirements:
(i) Require that the pharmacist function as part of a
multidisciplinary group that includes physicians and direct care
registered nurses. The multidisciplinary group shall determine the
appropriate participation of the pharmacist and the direct care
registered nurse.
(ii) Require that the medical records of the patient be available
to both the patient's prescriber and the pharmacist.
(iii) Require that the procedures to be performed by the
pharmacist relate to a condition for which the patient has first been
seen by a physician.
(iv) Except for procedures or functions provided by a health care
facility, a licensed clinic in which there is physician oversight, or
a provider who contracts with a licensed health care plan with
regard to the care or services provided to the enrollees of that
health care service plan, require the procedures to be performed in
accordance with a written, patient-specific protocol approved by the
treating or supervising physician. Any change, adjustment, or
modification of an approved preexisting treatment or drug therapy
shall be provided in writing to the treating or supervising physician
within 24 hours.
(6) Manufacture, measure, fit to the patient, or sell and repair
dangerous devices or furnish instructions to the patient or the
patient's representative concerning the use of those devices.
(7) Provide consultation to patients and professional information,
including clinical or pharmacological information, advice, or
consultation to other health care professionals.
(8) Initiate emergency contraception drug therapy in accordance
with standardized procedures or protocols developed by the pharmacist
and an authorized prescriber who is acting within his or her scope
of practice. Prior to performing any procedure authorized under this
paragraph, a pharmacist shall have completed a training program on
emergency contraception, which includes, but is not limited to,
conduct of sensitive communications, quality assurance, referral to
additional services, and documentation.
(b) (1) Prior to performing any procedure authorized by paragraph
(4) of subdivision (a), a pharmacist shall have received appropriate
training as prescribed in the policies and procedures of the licensed
health care facility.
(2) Prior to performing any procedure authorized by paragraph (5)
of subdivision (a), a pharmacist shall have either (A) successfully
completed clinical residency training or (B) demonstrated clinical
experience in direct patient care delivery.
(3) For each emergency contraception drug therapy initiated
pursuant to paragraph (8) of subdivision (a), the pharmacist shall
provide the recipient of the emergency contraception drugs with a
standardized factsheet that includes, but is not limited to, the
indications for use of the drug, the appropriate method for using the
drug, the need for medical followup, and other appropriate
information. The board shall develop this form in consultation with
the State Department of Health Services, the American College of
Obstetricians and Gynecologists, the California Pharmacists
Association, and other health care organizations. The provisions of
this section do not preclude the use of existing publications
developed by nationally recognized medical organizations.
(c) Nothing in this section shall affect the requirements of
existing law relating to maintaining the confidentiality of medical
records.
(d) Nothing in this section shall affect the requirements of
existing law relating to the licensing of a health care facility.
SEC. 9. Section 4982.05 of the Business and Professions Code is
amended to read:
4982.05. (a) Except as provided in subdivisions (b), (c), and
(e), any accusation filed against a licensee pursuant to Section
11503 of the Government Code shall
be filed within three years from the date the board discovers
the alleged act or omission that is the basis for disciplinary
action, or within seven years from the date the alleged act or
omission that is the basis for disciplinary action occurred,
whichever occurs first.
(b) An accusation filed against a licensee pursuant to Section
11503 of the Government Code alleging the procurement of a license by
fraud or misrepresentation is not subject to the limitations set
forth in subdivision (a).
(c) The limitation provided for by subdivision (a) shall be tolled
for the length of time required to obtain compliance when a report
required to be filed by the licensee or registrant with the board
pursuant to Article 11 (commencing with Section 800) of Chapter 1 is
not filed in a timely fashion.
(d) If an alleged act or omission involves a minor, the seven-year
limitations period provided for by subdivision (a) and the 10-year
limitations period provided for by subdivision (e) shall be tolled
until the minor reaches the age of majority.
(e) An accusation filed against a licensee pursuant to Section
11503 of the Government Code alleging sexual misconduct shall be
filed within three years after the board discovers the act or
omission alleged as the ground for disciplinary action, or within 10
years after the act or omission alleged as the grounds for
disciplinary action occurs, whichever occurs first. This subdivision
shall apply to a complaint alleging sexual misconduct received by
the board on and after January 1, 2002.
(f) The limitations period provided by subdivision (a) shall be
tolled during any period if material evidence necessary for
prosecuting or determining whether a disciplinary action would be
appropriate is unavailable to the board due to an ongoing criminal
investigation.
SEC. 10. Section 5081.1 of the Business and Professions Code is
amended to read:
5081.1. Pursuant to subdivision (b) of Section 5090, an applicant
for admission to the examination for a certified public accountant
certificate may qualify for admission with one of the following:
(a) The applicant shall present satisfactory evidence that the
applicant has either of the following:
(1) A baccalaureate degree from a university, college or other
four-year institution of learning accredited by a regional
institutional accrediting agency included in a list of these agencies
published by the United States Secretary of Education under the
requirements of the Higher Education Act of 1965 as amended (20
U.S.C. Sec. 1001 et seq.) with a major in accounting or related
subjects requiring a minimum of 45 semester units of instruction in
these subjects. If the applicant has received a baccalaureate degree
in a nonaccounting major, the applicant shall present satisfactory
evidence of study substantially the equivalent of an accounting
major, including courses in related business administration subjects.
(2) A degree or degrees from a college, university, or other
institution of learning located outside the United States that is
approved by the board as the equivalent of the baccalaureate degree
described in paragraph (1). The board may require an applicant under
this paragraph to submit documentation of his or her education to a
credentials evaluation service approved by the board for evaluation
and to cause the results of this evaluation to be reported to the
board. The board shall adopt regulations specifying the criteria and
procedures for approval of credential evaluation services. These
regulations shall, at a minimum, require that the credential
evaluation service (A) furnish evaluations directly to the board, (B)
furnish evaluations written in English, (C) be a member of the
American Association of Collegiate Registrars and Admission Officers,
the National Association of Foreign Student Affairs, or the National
Association of Credential Evaluation Services, (D) be used by
accredited colleges and universities, (E) be reevaluated by the board
every five years, (F) maintain a complete set of reference materials
as specified by the board, (G) base evaluations only upon authentic,
original transcripts and degrees and have a written procedure for
identifying fraudulent transcripts, (H) include in the evaluation
report, for each degree held by the applicant, the equivalent degree
offered in the United States, the date the degree was granted, the
institution granting the degree, an English translation of the course
titles, and the semester unit equivalence for each of the courses,
(I) have an appeal procedure for applicants, and (J) furnish the
board with information concerning the credential evaluation service
that includes biographical information on evaluators and translators,
three letters of reference from public or private agencies,
statistical information on the number of applications processed
annually for the past five years, and any additional information the
board may require in order to ascertain that the credential
evaluation service meets the standards set forth in this paragraph
and in any regulations adopted by the board.
(b) The applicant shall present satisfactory evidence that the
applicant has successfully completed a two-year course of college
level study or received an associate of arts degree from a community
college, either institution accredited by a regional institutional
accrediting agency that is included in a list published by the United
States Secretary of Education under the provisions of federal law
specified in paragraph (1) of subdivision (a), and that the applicant
has completed a minimum of 120 semester units which includes the
study of accounting and related business administration subjects.
(c) The applicant shall show to the satisfaction of the board that
he or she has had the equivalent of the educational qualifications
required by subdivision (b), or shall pass a preliminary written
examination approved and administered by an agency approved by the
California State Department of Education and shall have completed a
minimum of 10 semester units or the equivalent in accounting
subjects. The 10 semester units in accounting subjects shall be
completed at a college, university, or other institution of higher
learning accredited at the college level by an agency or association
that is included in a list published by the United States Secretary
of Education under the federal law specified in paragraph (1) of
subdivision (a).
(d) The applicant shall be a public accountant registered under
this chapter.
(e) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 11. Section 5093 of the Business and Professions Code is
amended to read:
5093. (a) To qualify for the certified public accountant license,
an applicant who is applying under this section shall meet the
education, examination, and experience requirements specified in
subdivisions (b), (c), and (d) of this section. The board may adopt
regulations as necessary to implement this section.
(b) (1) An applicant for admission to the certified public
accountant examination under the provisions of this section shall
present satisfactory evidence that the applicant has completed a
baccalaureate or higher degree conferred by a college or university,
meeting, at a minimum, the standards described in Section 5094, the
total educational program to include a minimum of 24 semester units
in accounting subjects and 24 semester units in business related
subjects. This evidence shall be provided at the time of application
for admission to the examination, except that an applicant who
passed the examination before December 31, 2001, may provide this
evidence at the time of application for licensure provided the
applicant applies and qualifies for licensure before January 1, 2006.
(2) An applicant for issuance of the certified public accountant
license under the provisions of this section shall present
satisfactory evidence that the applicant has completed at least 150
semester units of college education including a baccalaureate or
higher degree conferred by a college or university, meeting, at a
minimum, the standards described in Section 5094, the total
educational program to include a minimum of 24 semester units in
accounting subjects and 24 semester units in business related
subjects. This evidence shall be presented at the time of
application for the certified public accountant license.
(c) An applicant for the certified public accountant license shall
pass an examination in accounting, auditing, and other subjects the
board deems appropriate. An applicant who fails this examination has
the right to reexamination. During the time this examination is a
written, paper and pencil examination, the applicant shall pass the
examination in accordance with the requirements of paragraphs (1) and
(2) of this subdivision.
(1) If at a given sitting of the examination an applicant passes
two or more subjects, but does not pass all subjects, the applicant
shall be given conditional credit for those subjects and the
applicant does not need to sit for reexamination in those subjects,
provided that:
(A) At that sitting the applicant sat for all subjects for which
the applicant does not have credit.
(B) The applicant attained a minimum standardized score of 50 as
determined by the board on each subject taken at that sitting.
(2) In order to pass the examination pursuant to the conditional
credit described in paragraph (1), the applicant shall pass the
remaining subjects within six subsequent consecutive examinations
given after the one at which the first subjects were passed provided
that:
(A) At each subsequent sitting at which the applicant seeks to
pass any additional subjects, the applicant shall sit for all
subjects for which the applicant does not have credit.
(B) In order to receive credit for passing additional subjects in
any subsequent sitting, the applicant shall attain a minimum
standardized score of 50 as determined by the board on the subjects
taken at that sitting.
The conditional credit period provided in this section may be
extended by the board upon a showing of extraordinary extenuating
circumstances which prevented the applicant from retaking the
examination period.
(d) The applicant shall show, to the satisfaction of the board,
that the applicant has had one year of qualifying experience. This
experience may include providing any type of service or advice
involving the use of accounting, attest, compilation, management
advisory, financial advisory, tax or consulting skills. To be
qualifying under this section, experience shall have been performed
in accordance with applicable professional standards. Experience in
public accounting shall be completed under the supervision or in the
employ of a person licensed or otherwise having comparable authority
under the laws of any state or country to engage in the practice of
public accountancy. Experience in private or governmental accounting
or auditing shall be completed under the supervision of an
individual licensed by a state to engage in the practice of public
accountancy.
SEC. 12. Section 6060 of the Business and Professions Code is
amended to read:
6060. To be certified to the Supreme Court for admission and a
license to practice law, a person who has not been admitted to
practice law in a sister state, United States jurisdiction,
possession, territory, or dependency or in a foreign country shall:
(a) Be of the age of at least 18 years.
(b) Be of good moral character.
(c) Before beginning the study of law, have done either of the
following:
(1) Completed at least two years of college work, which college
work shall be not less than one-half of the collegiate work
acceptable for a bachelor's degree granted upon the basis of a
four-year period of study by a college or university approved by the
examining committee.
(2) Have attained in apparent intellectual ability the equivalent
of at least two years of college work by taking any examinations in
subject matters and achieving the scores thereon as are prescribed by
the examining committee.
(d) Have registered with the examining committee as a law student
within 90 days after beginning the study of law. The examining
committee, upon good cause being shown, may permit a later
registration.
(e) Have done any of the following:
(1) Had conferred upon him or her a juris doctor (J.D.) degree or
a bachelor of laws (LL.B.) degree by a law school accredited by the
examining committee or approved by the American Bar Association.
(2) Studied law diligently and in good faith for at least four
years in any of the following manners:
(A) In a law school that is authorized or approved to confer
professional degrees and requires classroom attendance of its
students for a minimum of 270 hours a year.
A person who has received his or her legal education in a foreign
state or country wherein the common law of England does not
constitute the basis of jurisprudence shall demonstrate to the
satisfaction of the examining committee that his or her education,
experience, and qualifications qualify him or her to take the
examination.
(B) In a law office in this state and under the personal
supervision of a member of the State Bar of California who is, and
for at least the last five years continuously has been, engaged in
the active practice of law. It is the duty of the supervising
attorney to render any periodic reports to the examining committee as
the committee may require.
(C) In the chambers and under the personal supervision of a judge
of a court of record of this state. It is the duty of the
supervising judge to render any periodic reports to the examining
committee as the committee may require.
(D) By instruction in law from a correspondence law school
authorized or approved to confer professional degrees by this state,
which requires 864 hours of preparation and study per year for four
years.
(E) By any combination of the methods referred to in this
paragraph (2).
(f) Have passed any examination in professional responsibility or
legal ethics as the examining committee may prescribe.
(g) Have passed the general bar examination given by the examining
committee.
(h) (1) Have passed a law students' examination administered by
the examining committee after completion of his or her first year of
law study. Those who pass the examination within its first three
administrations upon becoming eligible to take the examination shall
receive credit for all law studies completed to the time the
examination is passed. Those who do not pass the examination within
its first three administrations upon becoming eligible to take the
examination, but who subsequently pass the examination, shall receive
credit for one year of legal study only.
(2) This requirement does not apply to a student who has
satisfactorily completed his or her first year of law study at a law
school accredited by the examining committee and who has completed at
least two years of college work prior to matriculating in the
accredited law school, nor shall this requirement apply to an
applicant who has passed the bar examination of a sister state or of
a country in which the common law of England constitutes the basis of
jurisprudence.
The law students' examination shall be administered twice a year
at reasonable intervals.
SEC. 13. Section 6062 of the Business and Professions Code is
amended to read:
6062. (a) To be certified to the Supreme Court for admission, and
a license to practice law, a person who has been admitted to
practice law in a sister state, United States jurisdiction,
possession, territory, or dependency the United States may hereafter
acquire shall:
(1) Be of the age of at least 18 years.
(2) Be of good moral character.
(3) Have passed the general bar examination given by the
examining committee. However, if that person has been an active
member in good standing of the bar of the admitting sister state or
United States jurisdiction, possession, or territory for at least
four years immediately preceding the first day of the examination
applied for, he or she may elect to take the Attorneys' Examination
rather than the general bar examination. Attorneys admitted less
than four years and attorneys admitted four years or more in another
jurisdiction but who have not been active members in good standing of
their admitting jurisdiction for at least four years immediately
preceding the first day of the examination applied for must take the
general bar examination administered to general applicants not
admitted as attorneys in other jurisdictions.
(4) Have passed an examination in professional responsibility or
legal ethics as the examining committee may prescribe.
(b) To be certified to the Supreme Court for admission, and a
license to practice law, a person who has been admitted to practice
law in a jurisdiction other than in a sister state, United States
jurisdiction, possession, or territory shall:
(1) Be of the age of at least 18 years.
(2) Be of good moral character.
(3) Have passed the general bar examination given by the examining
committee.
(4) Have passed an examination in professional responsibility or
legal ethics as the examining committee may prescribe.
(c) The amendments to this section made at the 1997-98 Regular
Session of the Legislature shall be applicable on and after January
1, 1997, and do not constitute a change in, but are declaratory of,
existing law.
SEC. 14. Section 6072 of the Business and Professions Code is
amended to read:
6072. (a) A contract with the state for legal services that
exceeds fifty thousand dollars ($50,000) shall include a
certification by the contracting law firm that the firm agrees to
make a good faith effort to provide, during the duration of the
contract, a minimum number of hours of pro bono legal services during
each year of the contract equal to the lesser of 30 multiplied by
the number of full-time attorneys in the firm's offices in the state,
with the number of hours prorated on an actual day basis for any
contract period of less than a full year or 10 percent of its
contract with the state.
(b) Failure to make a good faith effort may be cause for
nonrenewal of a state contract for legal services and may be taken
into account when determining the award of future contracts with the
state for legal services. If a firm fails to provide the hours of
pro bono legal services set forth in its certification, the following
factors shall be considered in determining whether the firm made a
good faith effort:
(1) The actual number of hours of pro bono legal services provided
by the firm during the term of the contract.
(2) The firm's efforts to obtain pro bono legal work from legal
services programs, pro bono programs, and other relevant communities
or groups.
(3) The firm's history of providing pro bono legal services, or
other activities of the firm that evidence a good faith effort to
provide pro bono legal services such as the adoption of a pro bono
policy or the creation of a pro bono committee.
(4) The types of pro bono legal services provided, including the
quantity and complexity of cases as well as the nature of the relief
sought.
(5) The extent to which the failure to provide the hours of pro
bono legal services set forth in the certification is the result of
extenuating circumstances unforeseen at the time of the
certification.
(c) In awarding a contract with the state for legal services that
exceeds fifty thousand dollars ($50,000), the awarding department
shall consider the efforts of a potential contracting law firm to
provide, during the 12-month period prior to award of the contract,
the minimum number of hours of pro bono legal services described in
subdivision (a). Other things being equal, the awarding department
shall award a contract for legal services to firms that have
provided, during the 12-month period prior to award of the contract,
the minimum number of hours of pro bono legal services described in
subdivision (a).
(d) As used in this section, "pro bono legal services" means the
provision of legal services either:
(1) Without fee or expectation of fee to either of the following:
(A) Persons who are indigent or of limited means.
(B) Charitable, religious, civic, community, governmental, and
educational organizations in matters designed primarily to address
the economic, health, and social needs of persons who are indigent or
of limited means.
(2) At no fee or substantially reduced fee to groups or
organizations seeking to secure or protect civil rights, civil
liberties, or public rights.
(e) Nothing in this section shall subject a contracting law firm
that fails to provide the minimum number of hours of pro bono legal
services described in subdivision (a) to civil or criminal liability,
nor shall that failure be grounds for invalidating an existing
contract for legal services.
(f) This article shall not apply to state contracts with, or
appointments made by the judiciary of, an attorney, law firm, or
organization for the purposes of providing legal representation to
low- or middle-income persons, in either civil, criminal, or
administrative matters.
(g) This article shall not apply to contracts entered into between
the state and an attorney or law firm if the legal services
contracted for are to be performed outside the State of California.
(h) The provisions of this article shall become operative on
January 1, 2003.
SEC. 15. Section 6450 of the Business and Professions Code, as
amended by Section 1 of Chapter 311 of the Statutes of 2001, is
amended to read:
6450. (a) "Paralegal" means a person who holds himself or herself
out to be a paralegal, who is qualified by education, training, or
work experience, who either contracts with or is employed by an
attorney, law firm, corporation, governmental agency, or other
entity, and who performs substantial legal work under the direction
and supervision of an active member of the State Bar of California,
as defined in Section 6060, or an attorney practicing law in the
federal courts of this state, that has been specifically delegated by
the attorney to him or her. Tasks performed by a paralegal may
include, but are not limited to, case planning, development, and
management; legal research; interviewing clients; fact gathering and
retrieving information; drafting and analyzing legal documents;
collecting, compiling, and utilizing technical information to make an
independent decision and recommendation to the supervising attorney;
and representing clients before a state or federal administrative
agency if that representation is permitted by statute, court rule, or
administrative rule or regulation.
(b) Notwithstanding subdivision (a), a paralegal shall not do any
of the following:
(1) Provide legal advice.
(2) Represent a client in court.
(3) Select, explain, draft, or recommend the use of any legal
document to or for any person other than the attorney who directs and
supervises the paralegal.
(4) Act as a runner or capper, as defined in Sections 6151 and
6152.
(5) Engage in conduct that constitutes the unlawful practice of
law.
(6) Contract with, or be employed by, a natural person other than
an attorney to perform paralegal services.
(7) In connection with providing paralegal services, induce a
person to make an investment, purchase a financial product or
service, or enter a transaction from which income or profit, or both,
purportedly may be derived.
(8) Establish the fees to charge a client for the services the
paralegal performs, which shall be established by the attorney who
supervises the paralegal's work. This paragraph does not apply to
fees charged by a paralegal in a contract to provide paralegal
services to an attorney, law firm, corporation, governmental agency,
or other entity as provided in subdivision (a).
(c) A paralegal shall possess at least one of the following:
(1) A certificate of completion of a paralegal program approved by
the American Bar Association.
(2) A certificate of completion of a paralegal program at, or a
degree from, a postsecondary institution that requires the successful
completion of a minimum of 24 semester, or equivalent, units in
law-related courses and that has been accredited by a national or
regional accrediting organization or approved by the Bureau for
Private Postsecondary and Vocational Education.
(3) A baccalaureate degree or an advanced degree in any subject, a
minimum of one year of law-related experience under the supervision
of an attorney who has been an active member of the State Bar of
California for at least the preceding three years or who has
practiced in the federal courts of this state for at least the
preceding three years, and a written declaration from this attorney
stating that the person is qualified to perform paralegal tasks.
(4) A high school diploma or general equivalency diploma, a
minimum of three years of law-related experience under the
supervision of an attorney who has been an active member of the State
Bar of California for at least the preceding three years or who has
practiced in the federal courts of this state for at least the
preceding three years, and a written declaration from this attorney
stating that the person is qualified to perform paralegal tasks.
This experience and training shall be completed no later than
December 31, 2003.
(d) All paralegals shall be required to certify completion every
three years of four hours of mandatory continuing legal education in
legal ethics. All continuing legal education courses shall meet the
requirements of Section 6070. Every two years, all paralegals shall
be required to certify completion of four hours of mandatory
continuing education in either general law or in a specialized area
of law. Certification of these continuing education requirements
shall be made with the paralegal's supervising attorney. The
paralegal shall be responsible for keeping a record of the paralegal'
s certifications.
(e) A paralegal does not include a nonlawyer who provides legal
services directly to members of the public or a legal document
assistant or unlawful detainer assistant as defined in Section 6400.
(f) If a legal document assistant, as defined in subdivision (c)
of Section 6400, has registered, on or before January 1, 2001, as
required by law, a business name that includes the word "paralegal,"
that person may
continue to use that business name until he or she is required to
renew registration.
(g) This section shall remain in effect only until January 1,
2004, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2004, deletes or extends
that date.
SEC. 16. Section 6450 of the Business and Professions Code, as
amended by Section 2 of Chapter 311 of the Statutes of 2001, is
amended to read:
6450. (a) "Paralegal" means a person who holds himself or herself
out to be a paralegal, who is qualified by education, training, or
work experience, who either contracts with or is employed by an
attorney, law firm, corporation, governmental agency, or other
entity, and who performs substantial legal work under the direction
and supervision of an active member of the State Bar of California,
as defined in Section 6060, or an attorney practicing law in the
federal courts of this state, that has been specifically delegated by
the attorney to him or her. Tasks performed by a paralegal include,
but are not limited to, case planning, development, and management;
legal research; interviewing clients; fact gathering and retrieving
information; drafting and analyzing legal documents; collecting,
compiling, and utilizing technical information to make an independent
decision and recommendation to the supervising attorney; and
representing clients before a state or federal administrative agency
if that representation is permitted by statute, court rule, or
administrative rule or regulation.
(b) Notwithstanding subdivision (a), a paralegal shall not do the
following:
(1) Provide legal advice.
(2) Represent a client in court.
(3) Select, explain, draft, or recommend the use of any legal
document to or for any person other than the attorney who directs and
supervises the paralegal.
(4) Act as a runner or capper, as defined in Sections 6151 and
6152.
(5) Engage in conduct that constitutes the unlawful practice of
law.
(6) Contract with, or be employed by, a natural person other than
an attorney to perform paralegal services.
(7) In connection with providing paralegal services, induce a
person to make an investment, purchase a financial product or
service, or enter a transaction from which income or profit, or both,
purportedly may be derived.
(8) Establish the fees to charge a client for the services the
paralegal performs, which shall be established by the attorney who
supervises the paralegal's work. This paragraph does not apply to
fees charged by a paralegal in a contract to provide paralegal
services to an attorney, law firm, corporation, governmental agency,
or other entity as provided in subdivision (a).
(c) A paralegal shall possess at least one of the following:
(1) A certificate of completion of a paralegal program approved by
the American Bar Association.
(2) A certificate of completion of a paralegal program at, or a
degree from, a postsecondary institution that requires the successful
completion of a minimum of 24 semester, or equivalent, units in
law-related courses and that has been accredited by a national or
regional accrediting organization or approved by the Bureau for
Private Postsecondary and Vocational Education.
(3) A baccalaureate degree or an advanced degree in any subject, a
minimum of one year of law-related experience under the supervision
of an attorney who has been an active member of the State Bar of
California for at least the preceding three years or who has
practiced in the federal courts of this state for at least the
preceding three years, and a written declaration from this attorney
stating that the person is qualified to perform paralegal tasks.
(4) A high school diploma or general equivalency diploma, a
minimum of three years of law-related experience under the
supervision of an attorney who has been an active member of the State
Bar of California for at least the preceding three years or who has
practiced in the federal courts of this state for at least the
preceding three years, and a written declaration from this attorney
stating that the person is qualified to perform paralegal tasks.
This experience and training shall be completed no later than
December 31, 2003.
(d) All paralegals shall be required to certify completion every
three years of four hours of mandatory continuing legal education in
legal ethics. All continuing legal education courses shall meet the
requirements of Section 6070. Every two years, all paralegals shall
be required to certify completion of four hours of mandatory
continuing education in either general law or in a specialized area
of law. Certification of these continuing education requirements
shall be made with the paralegal's supervising attorney. The
paralegal shall be responsible for keeping a record of the paralegal'
s certifications.
(e) A paralegal does not include a nonlawyer who provides legal
services directly to members of the public, or a legal document
assistant or unlawful detainer assistant as defined in Section 6400,
unless the person is a person described in subdivision (a).
(f) This section shall become operative on January 1, 2004.
SEC. 17. Section 7685 of the Business and Professions Code is
amended to read:
7685. (a) Every funeral director shall provide to any person,
upon beginning discussion of prices or of the funeral goods and
services offered, a written or printed list containing, but not
necessarily limited to, the price for professional services offered,
which may include the funeral director's services, the preparation of
the body, the use of facilities, and the use of automotive
equipment. All services included in this price or prices shall be
enumerated.
(b) The list shall also include a statement indicating that the
survivor of the deceased who is handling the funeral arrangements, or
the responsible party, is entitled to receive, prior to the drafting
of any contract, a copy of any preneed agreement that has been
signed and paid for, in full or in part, by or on behalf of the
deceased, and that is in the possession of the funeral establishment.
(c) The funeral director shall also provide a statement on that
list that gives the price range for all caskets offered for sale.
The funeral director shall also provide a written statement or list
that, at a minimum, specifically identifies a particular casket or
caskets by price and by thickness of metal, or type of wood, or other
construction, interior and color, in addition to other casket
identification requirements under Title 16, Code of Federal
Regulations, Part 453 and any subsequent version of this regulation,
when a request for specific information on a casket or caskets is
made in person by any individual. Prices of caskets and other
identifying features such as thickness of metal, or type of wood, or
other construction, interior and color, in addition to other casket
identification requirements required to be given over the telephone
by Title 16, Code of Federal Regulations, Part 453 and any subsequent
version of this regulation, shall be provided over the telephone, if
requested.
SEC. 18. Section 8008 of the Business and Professions Code is
amended to read:
8008. The board has the following powers and duties:
(a) To adopt a seal.
(b) By affirmative vote of at least three members of the board, to
suspend, revoke, or impose any other disciplinary action against a
certificate for any cause specified in this chapter.
(c) To charge and collect all fees as provided for in this
chapter.
(d) To require the renewal of all certificates.
(e) To issue subpoenas, to administer oaths, and to take testimony
concerning any matter within the jurisdiction of the board.
(f) To investigate the actions of any licensee, upon receipt of a
verified complaint in writing from any person, for alleged acts or
omissions constituting grounds for disciplinary action under the
chapter.
(g) To administer the Transcript Reimbursement Fund described in
Section 8030.2.
SEC. 19. Section 8020 of the Business and Professions Code, as
amended by Section 3 of Chapter 616 of the Statutes of 2001, is
amended to read:
8020. Any person over the age of 18 years, who has not committed
any acts or crimes constituting grounds for the denial of licensure
under Sections 480, 8025, and 8025.1, who has a high school education
or its equivalent as determined by the board, and who has
satisfactorily passed an examination under any regulations that the
board may prescribe, shall be entitled to a certificate and shall be
styled and known as a certified shorthand reporter. No person shall
be admitted to the examination without first presenting satisfactory
evidence to the board that, within the five years immediately
preceding the date of application for a certificate, the applicant
has obtained one of the following:
(a) One year of experience in making verbatim records of
depositions, arbitrations, hearings, or judicial or related
proceedings by means of written symbols or abbreviations in shorthand
or machine shorthand writing and transcribing these records.
(b) A verified certificate of satisfactory completion of a
prescribed course of study in a recognized court reporting school or
a certificate from the school that evidences an equivalent
proficiency and the ability to make a verbatim record of material
dictated in accordance with regulations adopted by the board
contained in Title 16 of the California Code of Regulations.
(c) A certificate from the National Court Reporters Association
demonstrating proficiency in machine shorthand reporting.
(d) A passing grade on the California state hearing reporters
examination.
(e) A valid certified shorthand reporters certificate or license
to practice shorthand reporting issued by a state other than
California whose requirements and licensing examination are
substantially the same as those in California.
(f) This section shall remain in effect only until January 1,
2004, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2004, deletes or extends
that date.
SEC. 20. Section 8020 of the Business and Professions Code, as
added by Section 4 of Chapter 616 of the Statutes of 2001, is amended
to read:
8020. Any person over the age of 18 years, who has not committed
any acts or crimes constituting grounds for the denial of licensure
under Sections 480, 8025, and 8025.1, who has a high school education
or its equivalent as determined by the board, and who has
satisfactorily passed an examination under any regulations that the
board may prescribe, shall be entitled to a certificate and shall be
styled and known as a certified shorthand reporter. No person shall
be admitted to the examination without first presenting satisfactory
evidence to the board that, within the three years immediately
preceding the date of application for a certificate, the applicant
has obtained one of the following:
(a) One year of experience in making verbatim records of
depositions, arbitrations, hearings, or judicial or related
proceedings by means of written symbols or abbreviations in shorthand
or machine shorthand writing and transcribing these records.
(b) A verified certificate of satisfactory completion of a
prescribed course of study in a recognized court reporting school or
a certificate from the school that evidences equivalent proficiency
and the ability to make a verbatim record of material dictated in
accordance with regulations adopted by the board contained in Title
16 of the California Code of Regulations.
(c) A certificate from the National Court Reporters Association
demonstrating proficiency in machine shorthand writing.
(d) A passing grade on the California state hearing reporters
examination.
(e) A valid certified shorthand reporters certificate or license
to practice shorthand reporting issued by a state other than
California whose requirements and licensing examination are
substantially the same as those in California.
(f) This section shall become operative on January 1, 2004.
SEC. 21. Section 8027 of the Business and Professions Code is
amended to read:
8027. (a) As used in this section, "school" means a court
reporter training program or an institution that provides a course of
instruction approved by the board and the Bureau for Private
Postsecondary and Vocational Education, is a public school in this
state, or is accredited by the Western Association of Schools and
Colleges.
(b) A court reporting school shall be primarily organized to train
students for the practice of shorthand reporting, as defined in
Sections 8016 and 8017. Its educational program shall be on the
postsecondary or collegiate level. It shall be legally organized and
authorized to conduct its program under all applicable laws of the
state, and shall conform to and offer all components of the minimum
prescribed course of study established by the board. Its records
shall be kept and shall be maintained in a manner to render them safe
from theft, fire, or other loss. The records shall indicate
positive daily and clock-hour attendance of each student for all
classes, apprenticeship and graduation reports, high school
transcripts or the equivalent or self-certification of high school
graduation or the equivalent, transcripts of other education, and
student progress to date, including all progress and counseling
reports.
(c) Any school intending to offer a program in court reporting
shall notify the board within 30 days of the date on which it
provides notice to, or seeks approval from, the California Department
of Education, the Bureau for Private Postsecondary and Vocational
Education, the Chancellor's Office of the California Community
Colleges, or the Western Association of Schools and Colleges,
whichever is applicable. The board shall review the proposed
curriculum and provide the school tentative approval, or notice of
denial, within 60 days of receipt of the notice. The school shall
apply for provisional recognition pursuant to subdivision (d) within
no more than one year from the date it begins offering court
reporting classes.
(d) The board may grant provisional recognition to a new court
reporting school upon satisfactory evidence that it has met all of
the provisions of subdivision (b) and this subdivision. Recognition
may be granted by the board to a provisionally recognized school
after it has been in continuous operation for a period of no less
than three consecutive years from the date provisional recognition
was granted, during which period the school shall provide
satisfactory evidence that at least one person has successfully
completed the entire course of study established by the board and
complied with the provisions of Section 8020, and has been issued a
certificate to practice shorthand reporting as defined in Sections
8016 and 8017. The board may, for good cause shown, extend the
three-year provisional recognition period for not more than one year.
Failure to meet the provisions and terms of this section shall
require the board to deny recognition. Once granted, recognition may
be withdrawn by the board for failure to comply with all applicable
laws and regulations.
(e) Application for recognition of a court reporting school shall
be made upon a form prescribed by the board and shall be accompanied
by all evidence, statements, or documents requested. Each branch,
extension center, or off-campus facility requires separate
application.
(f) All recognized and provisionally recognized court reporting
schools shall notify the board of any change in school name, address,
telephone number, responsible court reporting program manager, owner
of private schools, and the effective date thereof, within 30 days
of the change. All of these notifications shall be made in writing.
(g) A school shall notify the board in writing immediately of the
discontinuance or pending discontinuance of its court reporting
program or any of the program's components. Within two years of the
date this notice is sent to the board, the school shall discontinue
its court reporting program in its entirety. The board may, for good
cause shown, grant not more than two one-year extensions of this
period to a school. If a student is to be enrolled after this notice
is sent to the board, a school shall disclose to the student the
fact of the discontinuance or pending discontinuance of its court
reporting program or any of its program components.
(h) The board shall maintain a roster of currently recognized and
provisionally recognized court reporting schools, including, but not
limited to, the name, address, telephone number, and the name of the
responsible court reporting program manager of each school.
(i) The board shall maintain statistics that display the number
and passing percentage of all first-time examinees, including, but
not limited to, those qualified by each recognized or provisionally
recognized school and those first-time examinees qualified by other
methods as defined in Section 8020.
(j) Inspections and investigations shall be conducted by the board
as necessary to carry out this section, including, but not limited
to, unannounced site visits.
(k) All recognized and provisionally recognized schools shall
print in their school or course catalog the name, address, and
telephone number of the board. At a minimum, the information shall
be in 8-point bold type and include the following statement:
"IN ORDER FOR A PERSON TO QUALIFY FROM A SCHOOL TO TAKE THE STATE
LICENSING EXAMINATION, THE PERSON SHALL COMPLETE A PROGRAM AT A
RECOGNIZED SCHOOL. FOR INFORMATION CONCERNING THE MINIMUM
REQUIREMENTS THAT A COURT REPORTING PROGRAM MUST MEET IN ORDER TO BE
RECOGNIZED, CONTACT: THE COURT REPORTERS BOARD OF CALIFORNIA;
(ADDRESS); (TELEPHONE NUMBER)."
(l) Each court reporting school shall file with the board, not
later than June 30 of each year, a current school catalog that shows
all course offerings and staff, and for private schools, the owner,
except that where there have been no changes to the catalog within
the previous year, no catalog need be sent. In addition, each school
shall also file with the board a statement certifying whether the
school is in compliance with all statutes and the rules and
regulations of the board, signed by the responsible court reporting
program manager.
(m) A school offering court reporting may not make any written or
verbal claims of employment opportunities or potential earnings
unless those claims are based on verified data and reflect current
employment conditions.
(n) If a school offers a course of instruction that exceeds the
board's minimum requirements, the school shall disclose orally and in
writing the board's minimum requirements and how the course of
instruction differs from those criteria. The school shall make this
disclosure before a prospective student executes an agreement
obligating that person to pay any money to the school for the course
of instruction. The school shall also make this disclosure to all
students enrolled on January 1, 2002.
(o) Private schools shall provide each prospective student with
all of the following and have the prospective student sign a document
that shall become part of that individual's permanent record,
acknowledging receipt of each item:
(1) A student consumer information brochure published by the
board.
(2) A list of the school's graduation requirements, including the
number of tests, the pass point of each test, the speed of each test,
and the type of test, such as jury charge or literary.
(3) A list of requirements to qualify for the state certified
shorthand reporter licensing examination, including the number of
tests, the pass point of each test, the speed of each test, and the
type of test, such as jury charge or literary, if different than
those requirements listed in paragraph (2).
(4) A copy of the school's board-approved benchmarks for
satisfactory progress as identified in subdivision (u).
(5) A report showing the number of students from the school who
qualified for each of the certified shorthand reporter licensing
examinations within the preceding two years, the number of those
students that passed each examination, the time, as of the date of
qualification, that each student was enrolled in court reporting
school, and the placement rate for all students that passed each
examination.
(6) On and after January 1, 2005, the school shall also provide to
prospective students the number of hours each currently enrolled
student who has qualified to take the next licensing test, exclusive
of transfer students, has attended court reporting classes.
(p) Public schools shall provide the information in paragraphs (1)
to (6) of subdivision (o), inclusive, to each new student the first
day he or she attends theory or machine speed class, if it was not
provided previously.
(q) Each enrolled student shall be provided written notification
of any change in qualification or graduation requirements that is
being implemented due to the requirements of any one of the school's
oversight agencies. This notice shall be provided to each affected
student at least 30 days before the effective date of the change and
shall state the new requirement and the name, address, and telephone
number of the agency that is requiring it of the school. Each
student shall initial and date a document acknowledging receipt of
that information and that document, or a copy thereof, shall be made
part of the student's permanent file.
(r) Schools shall make available a comprehensive final examination
in each academic subject to any student desiring to challenge an
academic class in order to obtain credit towards certification for
the state licensing examination. The points required to pass a
challenge examination shall not be higher than the minimum points
required of other students completing the academic class.
(s) An individual serving as a teacher, instructor, or reader
shall meet the qualifications specified by regulation for his or her
position.
(t) Each school shall provide a substitute teacher or instructor
for any class for which the teacher or instructor is absent for two
consecutive days or more.
(u) The board has the authority to approve or disapprove
benchmarks for satisfactory progress which each school shall develop
for its court reporting program. Schools shall use only
board-approved benchmarks to comply with the provisions of paragraph
(4) of subdivision (o) and subdivision (u).
(v) Each school shall counsel each student a minimum of one time
within each 12-month period to identify the level of attendance and
progress, and the prognosis for completing the requirements to become
eligible to sit for the state licensing examination. If the student
has not progressed in accordance with the board-approved benchmarks
for that school, the student shall be counseled a minimum of one
additional time within that same 12-month period.
(w) The school shall provide to the board, for each student
qualifying through the school as eligible to sit for the state
licensing examination, the number of hours the student attended court
reporting classes, both academic and machine speed classes,
including theory.
(x) The pass rate of first-time exam takers for each school
offering court reporting shall meet or exceed the average pass rate
of all first-time test takers for a majority of examinations given
for the preceding three years. Failure to do so shall require the
board to conduct a review of the program. In addition, the board may
place the school on probation and may withdraw recognition if the
school continues to place below the above described standard on the
two exams that follow the three-year period.
(y) A school shall not require more than one 10-minute qualifying
examination, as defined in the regulations of the board, for a
student to be eligible to sit for the state certification
examination.
(z) A school shall provide the board the actual number of hours of
attendance for each applicant the school qualifies for the state
licensing examination.
(aa) The board shall, by December 1, 2001, do the following by
regulation as necessary:
(1) Establish the format that shall be used by schools to report
tracking of all attendance hours and actual timeframes for completed
coursework.
(2) Require schools to provide a minimum of 10 hours of live
dictation class each school week for every full-time student.
(3) Require schools to provide students with the opportunity to
read back from their stenographic notes a minimum of one time each
day to his or her instructor.
(4) Require schools to provide students with the opportunity to
practice with a school-approved speed-building tape, or other
assigned material, a minimum of one hour per day after school hours
as a homework assignment and provide the notes from this tape to
their instructor the following day for review.
(5) Develop standardization of policies on the use and
administration of qualifier examinations by schools.
(6) Define qualifier exam as follows: the qualifier exam shall
consist of 4-voice testimony of 10-minute duration at 200 wpm, graded
at 97.5 percent accuracy, and in accordance with the guidelines
followed by the board. Schools shall be required to date and number
each qualifier and announce the date and number to the students at
the time of administering the qualifier. All qualifiers shall
indicate the actual dictation time of the test and the school shall
catalog and maintain the qualifier for a period of not less than
three years for the purpose of inspection by the board.
(7) Require schools to develop a program to provide students with
the opportunity to interact with professional court reporters to
provide skill support, mentoring, or counseling which they can
document at least quarterly.
(8) Define qualifications and educational requirements required of
instructors and readers that read test material and qualifiers.
(bb) The board shall adopt regulations to implement the
requirements of this section not later than September 1, 2002.
(cc) The board may recover costs for any additional expenses
incurred under the enactment amending this section in the 2001-02
Regular Session of the Legislature pursuant to its fee authority in
Section 8031.
SEC. 22. Section 8538 of the Business and Professions Code is
amended to read:
8538. (a) A registered structural pest control company shall
provide the owner, or owner's agent, and tenant of the premises for
which the work is to be
done with clear written notice which contains the following
statements and information using words with common and everyday
meaning:
(1) The pest to be controlled.
(2) The pesticide or pesticides proposed to be used, and the
active ingredient or ingredients.
(3) "State law requires that you be given the following
information: CAUTION--PESTICIDES ARE TOXIC CHEMICALS. Structural
Pest Control Companies are registered and regulated by the Structural
Pest Control Board, and apply pesticides which are registered and
approved for use by the California Department of Pesticide Regulation
and the United States Environmental Protection Agency. Registration
is granted when the state finds that, based on existing scientific
evidence, there are no appreciable risks if proper use conditions are
followed or that the risks are outweighed by the benefits. The
degree of risk depends upon the degree of exposure, so exposure
should be minimized."
"If within 24 hours following application you experience symptoms
similar to common seasonal illness comparable to the flu, contact
your physician or poison control center (telephone number) and your
pest control company immediately." (This statement shall be modified
to include any other symptoms of overexposure which are not typical
of influenza.)
"For further information, contact any of the following: Your Pest
Control Company (telephone number); for Health Questions--the County
Health Department (telephone number); for Application
Information--the County Agricultural Commissioner (telephone number)
and for Regulatory Information--the Structural Pest Control Board
(telephone number and address)."
(4) If a contract for periodic pest control has been executed, the
frequency with which the treatment is to be done.
(b) In the case of Branch 1 applications, the notice prescribed by
subdivision (a) shall be provided at least 48 hours prior to
application unless fumigation follows inspection by less than 48
hours.
In the case of Branch 2 or Branch 3 registered company
applications, the notice prescribed by subdivision (a) shall be
provided no later than prior to application.
In either case, the notice shall be given to the owner, or owner's
agent, and tenant, if there is a tenant, in at least one of the
following ways:
(1) First-class mail.
(2) Posting in a conspicuous place on the real property.
(3) Personal delivery.
If the building is commercial or industrial, a notice shall be
posted in a conspicuous place, unless the owner or owner's agent
objects, in addition to any other notification required by this
section.
The notice shall only be required to be provided at the time of
the initial treatment if a contract for periodic service has been
executed. If the pesticide to be used is changed, another notice
shall be required to be provided in the manner previously set forth
herein.
(c) Any person or licensee who, or registered company which,
violates any provision of this section is guilty of a misdemeanor and
is punishable as set forth in Section 8553.
SEC. 23. Section 8560 of the Business and Professions Code is
amended to read:
8560. (a) Licenses issued to operators, field representatives, or
applicators shall be limited to the branch or branches of pest
control for which the applicant has qualified by application and
examination.
For the purpose of delimiting the type and character of work
authorized by the various branch licenses, the practice of pest
control is classified into the following branches:
Branch 1. Fumigation. The practice relating to the control of
household and wood-destroying pests or organisms by fumigation with
poisonous or lethal gases.
Branch 2. General pest. The practice relating to the control of
household pests, excluding fumigation with poisonous or lethal gases.
Branch 3. Termite. The practice relating to the control of
wood-destroying pests or organisms by the use of insecticides, or
structural repairs and corrections, excluding fumigation with
poisonous or lethal gases.
(b) The board may issue a license for a combination of two or more
branches for which an applicant qualifies under the provisions of
this chapter, and the combination license shall be considered one
license.
(c) Unless otherwise authorized by the board, all written
examinations shall be in ink in books supplied by the board. All
examination papers shall be kept for a period of one year, upon the
expiration of which these papers may be destroyed on order of the
board. Each applicant for license as an operator or a field
representative shall be designated by a number instead of by name,
and the identity thereof shall not be disclosed until the examination
papers are graded. No person shall be admitted to the examination
room except members of the board, the examining personnel, and the
applicants for license.
(d) The board shall make rules and regulations for the purpose of
securing fair, impartial, and proper examinations.
(e) Licensees may be licensed in other branches upon complying
with the requirements for qualification and by examination in those
other branches. No failure of the licensee to pass examination in
the other branch or branches shall have any effect on existing
licenses.
(f) The examination shall be in each of the subjects specified in
the branch or branches relating to the respective applications. A
license according to the applications shall be granted to any
applicant who shall make a general average of not less than 70
percent on each of the subjects of the branch or branches.
SEC. 24. Section 10153.6 of the Business and Professions Code is
amended to read:
10153.6. All real estate broker licenses issued by the
commissioner shall be for a period of four years.
Applicants shall qualify in the appropriate examination and
satisfy all other requirements prior to issuance of the license.
The four-year license may be renewed upon filing the required
application and fee, and complying with the provisions of Article 2.5
(commencing with Section 10170).
SEC. 25. Section 10176.1 of the Business and Professions Code is
amended to read:
10176.1. (a) (1) Whenever the commissioner takes any enforcement
or disciplinary action against a licensee, and the enforcement or
disciplinary action is related to escrow services provided pursuant
to paragraph (4) of subdivision (a) of Section 17006 of the Financial
Code, upon the action becoming final the commissioner shall notify
the Insurance Commissioner and the Commissioner of Corporations of
the action or actions taken. The purpose of this notification is to
alert the departments that enforcement or disciplinary action has
been taken, if the licensee seeks or obtains employment with entities
regulated by the departments.
(2) The commissioner shall provide the Insurance Commissioner and
the Commissioner of Corporations, in addition to the notification of
the action taken, with a copy of the written accusation, statement of
issues, or order issued or filed in the matter and, at the request
of the Insurance Commissioner or the Commissioner of Corporations,
with any underlying factual material relevant to the enforcement or
disciplinary action. Any confidential information provided by the
commissioner to the Insurance Commissioner or the Commissioner of
Corporations shall not be made public pursuant to this section.
Notwithstanding any other provision of law, the disclosure of any
underlying factual material to the Insurance Commissioner or the
Commissioner of Corporations shall not operate as a waiver of
confidentiality or any privilege that the commissioner may assert.
(b) The commissioner shall establish and maintain, on the Web site
maintained by the Department of Real Estate, a database of its
licensees, including those who have been subject to any enforcement
or disciplinary action that triggers the notification requirements of
this section. The database shall also contain a direct link to the
databases, described in Section 17423.1 of the Financial Code and
Section 12414.31 of the Insurance Code and required to be maintained
on the Web sites of the Department of Corporations and the Department
of Insurance, respectively, of persons who have been subject to
enforcement or disciplinary action for malfeasance or misconduct
related to the escrow industry by the Insurance Commissioner and the
Commissioner of Corporations.
(c) There shall be no liability on the part of, and no cause of
action of any nature shall arise against, the State of California,
the Department of Real Estate, the Real Estate Commissioner, any
other state agency, or any officer, agent, employee, consultant, or
contractor of the state, for the release of any false or unauthorized
information pursuant to this section, unless the release of that
information was done with knowledge and malice, or for the failure to
release any information pursuant to this section.
SEC. 26. Section 13405 of the Business and Professions Code is
amended to read:
13405. (a) The Department of Food and Agriculture may grant a
variance from the specifications of this chapter for developmental
engine fuels if all of the following conditions apply:
(1) Variances may only be granted to provide for the development
of information under controlled test conditions to assist in the
creation of chemical and performance standards for engine fuels.
(2) Developmental engine fuel shall only be distributed or sold to
fleet-type centrally fueled vehicle and equipment users.
(3) The applicant shall warn all parties in writing of any
potential risk associated with the use of the developmental engine
fuel.
(4) The applicant shall report information when and as the
department may prescribe in order for the department to monitor the
progress of the developmental engine fuel technology evaluation.
(b) The applicant for a variance shall comply with all other
requirements, terms, and conditions that are contained in regulations
adopted by the department to further the purposes and administration
of this section.
(c) (1) In granting a variance, the department expresses no
opinion as to whether an applicant's developmental engine fuel will
perform as represented by the applicant nor any opinion to the
extent, if at all, that the developmental engine fuel may be safely
and effectively used as a substitute for other spark-ignition or
compression-ignition engine fuels without incident.
(2) Damages caused by the sale, delivery, storage, handling, and
usage of the developmental engine fuel shall be addressed in
accordance with contractual provisions negotiated and agreed upon by
the applicant and the user.
(d) The department may withdraw a variance if the applicant does
not adhere to the conditions required to obtain the variance or if
the department recognizes a high probability of equipment harm with
the continued use of the developmental engine fuel or to protect
public safety.
SEC. 27. Section 19455 of the Business and Professions Code, as
added by Chapter 198 of the Statutes of 2001, is amended to read:
19455. (a) The Legislature finds and declares that Section 923 of
the Labor Code recognizes that it is necessary that the individual
worker have full freedom of association, self-organization, and
designation of representatives of his or her own choosing, to
negotiate the terms and conditions of his or her employment, and that
he or she shall be free from the interference, restraint, or
coercion of employers of labor, or their agents, in the designation
of representatives or in self-organization or in other concerted
activities for the purpose of collective bargaining.
(b) The Legislature finds that the National Labor Relations Board
has formally declined to assert jurisdiction over horse racing
because of extensive state control over the industry, the dominant
pattern of sporadic short-term employment which poses problems for
the effective enforcement of the National Labor Relations Act, and a
unique and special relationship that has developed between the states
and the industry.
(c) It is the intent of the Legislature to establish an orderly
procedure for backstretch employees to exercise their statutory
rights to organize a labor union, in order to reduce the prospect of
any strikes, disruptions, or economic action that would interfere
with the operation of horse racing meetings in California.
(d) Except as provided in subdivision (e), the board shall oversee
the conduct of a union recognition procedure for backstretch
employees under the following conditions:
(1) Employees shall have the right to join, or refuse to join, a
labor organization for purposes of collective bargaining and mutual
aid and protection. Existing state-recognized organizations of
trainers or horsemen established pursuant to the Horse Racing Law
shall not use funds derived or distributed from parimutuel wagering
pursuant to state law to advocate or advance any position with
respect to unionization of employees. Individual trainers and
horsemen, and their agents, shall not coerce or threaten any employee
of any trainer or horseman because of the exercise of rights
pursuant to this article. No employee shall be discharged or
discriminated against for expressing any opinion concerning the
selection of a labor union or collective bargaining agent for
employees under this article. No trainer or horseman, or group of
trainers or horsemen, shall dominate or interfere with the formation
or administration of any labor organization established under this
article nor contribute financial or other support to it.
(2) The labor union and its representatives shall not coerce or
threaten any employee of any trainer or horseman because of the
exercise of rights pursuant to this article.
(3) Notwithstanding any other provision of law, within 30 days of
a request by a bona fide labor organization representing workers in
the horse racing industry in California, accompanied by a petition of
125 licensed backstretch workers, the board shall provide the labor
organization with a list of all backstretch workers including the
type of licenses they hold, their employer, the location at which
they are employed, and their address and telephone number. The board
may require of any trainer licensee information in the licensee's
possession necessary to comply with this requirement. The labor
union shall use this list solely for the purposes of this article,
and maintain it in a manner, as the board may require, to preserve
the integrity of horse racing. The board may impose an appropriate
penalty for any other use.
(4) Every licensed trainer who employs backstretch employees shall
file with the board, not later than February 1, 2002, and, within
seven days of the commencement of each race meeting thereafter, a
complete and accurate list of the names of its backstretch workers.
In addition, every trainer shall file with the board a complete,
accurate, and updated list within seven days of any changes which
occur to the most recently filed list. The lists described in this
section, together with any updates thereto, shall be provided within
72 hours after receipt by the board, to any bona fide labor
organization which has requested copies thereof and submitted a
petition containing the names of 125 backstretch workers pursuant to
paragraph (3). Any request need only be made one time and the board
shall thereafter be required to provide these lists and any updates
thereto in accordance with the provisions of this section so long as
a bona fide labor organization seeks to represent licensed
backstretch workers.
(5) The labor union may obtain board recognition as the exclusive
bargaining agent for employees of employers pursuant to the
provisions and procedures described in paragraph (8).
(6) For the purposes of this article:
(A) "Backstretch employee" or "backstretch worker" means a person
licensed by the board pursuant to subdivision (c) of Section 1481 of
Division 4 of Title 4 of the California Code of Regulations.
(B) "Multiemployer bargaining unit" means any bargaining unit
created and recognized pursuant to the terms of clause (iii) of
subparagraph (A) of paragraph (8).
(C) "Approved election unit" means any election unit created and
recognized pursuant to paragraph (7).
(7) There are four election units created and recognized pursuant
to this section, as follows:
(A) Backstretch employees working for trainers of thoroughbred
horses stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the combined central and southern
zones.
(B) Backstretch employees working for trainers of thoroughbred
horses stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the northern zone.
(C) Backstretch employees working for trainers of quarter horses
stabled at licensed racetracks and approved auxiliary training
facilities in the combined central and southern zones.
(D) Backstretch employees working for trainers of harness horses
stabled at licensed racetracks, including fairs and approved
auxiliary training facilities in the northern zone.
The board shall use the California State Mediation and
Conciliation Service for all appropriate purposes of this act,
including operations related to the conduct of recognition procedures
and elections.
(8) (A) With respect to backstretch workers, a labor organization
seeking recognition as the collective bargaining agent for these
workers shall collect signed cards indicating individual worker's
intent to be represented by that organization for collective
bargaining purposes and submit those cards to the California State
Mediation and Conciliation Service for review and validation. When
the labor organization is in receipt of cards signed by workers
equaling at least 30 percent of the employees in an election unit
described in paragraph (4), the California State Mediation and
Conciliation Service shall conduct a secret ballot election with
respect to the election unit as soon as is practicable thereafter,
but in no event more than 30 calendar days after validation by the
service of the cards.
Those backstretch employees entitled to vote in the election shall
be those who appear on the licensed trainer's most recent list
described in paragraph (3). However, each employer may update his or
her list not more than 72 hours prior to the election. If it is
determined by the stewards pursuant to the provisions in paragraph
(11), that the employer filed an inaccurate or erroneous list with a
willful intention to manipulate the results of an election, and that
the inaccuracy or error may have affected the outcome of the
election, the stewards shall decree that the employer lost the
election, regardless of the actual outcome thereof, and the stewards
shall issue an order to the trainer to negotiate with the union.
(i) Any election shall be conducted by the California State
Mediation and Conciliation Service under rules established by the
service consistent with standard practice. The rules shall be
established no more than 60 days after the effective date of this
section, shall be made available to the bona fide labor union and
employers of backstretch employees, and shall be exempt from the
Administrative Procedure Act. The rules shall provide for a secret
ballot system for the conduct of the election pursuant to which
ballots cast by backstretch employees of individual employers shall
be cast by insertion into envelopes appropriately identified with
respect to each employer. The envelopes shall be collected and
tabulated in secret by the service, subject to observation by one
representative designated by the bona fide labor organization and one
representative designated by the organization representing trainers
pursuant to subdivision (a) of Section 19613.2. Upon completion of
the tabulation, the service shall issue a report certifying those
employers, the majority of whose employees who participated in the
election voted in favor of representation by the union. Those
employers so certified shall be required to bargain with the labor
union pursuant to this subdivision. All other employers shall not be
required to negotiate with the union and there shall not be another
election with respect to those employers for at least one year from
the date of the prior election. The service shall not make public
the numerical tabulation of votes by employer.
(ii) Protests over challenged ballots shall be resolved by the
service in a consolidated hearing commencing no later than three
business days after the election.
(iii) Within 45 days of the certification of the results of the
election by the service to the board, those trainers who are required
to bargain pursuant to this subparagraph may form multiple employer
bargaining units in accordance with the provisions of this
subdivision. Further, the organization representing trainers
pursuant to subdivision (a) of Section 19613.2 shall conduct a
meeting regarding the formulation of multiple employer bargaining
units within five days of the certification of the results of the
election. For licensed trainers described in subparagraph (A) of
paragraph (7), the minimum number of backstretch employees employed
by licensed trainers comprising the multiple employer bargaining unit
as of the date of the election shall be the lesser of 100 employees
or 10 percent of the total employees subject to bargaining. For
licensed trainers described in subparagraphs (B), (C), and (D), of
paragraph (7), the minimum number of backstretch employees employed
by licensed trainers comprising the multiple employer bargaining unit
as of the date of the election shall be the lesser of 50 employees
or 10 percent of the total employees subject to bargaining. The
minimum number of backstretch employees employed by licensed trainers
in order to qualify as a multiple employer bargaining unit pursuant
to this subdivision may, with the consent of the recognized labor
union, be reduced. On or before the 45th day following the
certification of the results of the election, each representative of
a multiple employer bargaining unit formed pursuant to this
subdivision shall notify the board and the exclusive collective
bargaining agent, in writing, that a unit has been formed, disclose
the names of the licensed trainers which comprise the unit, and
indicate the number and names of the backstretch employees which are
employed by the licensed trainers comprising the unit. Except to
join another multiple employer bargaining unit, without the consent
of the bona fide labor organization, a trainer who has elected to
join a multiple employer bargaining unit may not thereafter elect to
resign from the unit except within a 30-day period prior to the date
of the expiration of the collective bargaining agreement resulting
from the negotiations. The employees of a licensed trainer who has
resigned from a multiple employer bargaining unit and has not joined
another unit, shall not be entitled to petition to decertify the
union for a period of one year from the date of the expiration of the
collective bargaining agreement which resulted from the negotiation
between the union and the multiple employer bargaining unit of which
he or she was formerly a member and which was in effect at the time
of the trainer's resignation. Upon completion and certification of
the election results the union shall be recognized as the exclusive
collective bargaining agent for those workers whose employers are
required to bargain, and the executive director of the board shall
issue an order to affected employers to begin good faith negotiations
for approval of employment agreements pursuant to the procedures set
forth in this section.
(B) If an individual employer of backstretch workers declines to
be represented in the multiemployer collective bargaining procedure
described in clause (iii), the board shall issue an order to begin
good faith negotiations for employment agreements on an individual
employer basis. The board may provide mediation and conciliation
services upon request of the parties at any time. If an employer is
required under this subparagraph to collectively bargain with the
union, and the parties do not reach an agreement within 90 days of
the order, the board shall require the parties to participate in
mandatory mediation and conciliation services for a period of 30
days. If no agreement results from this mediation, either or both
parties may declare an impasse. Upon a party's declaration of an
impasse, the executive director of the board shall appoint an
arbitrator in the manner described in paragraph (11) to determine the
issues and issue a final and binding order establishing the terms of
a collective bargaining agreement.
(9) No labor agreement under this article shall apply to any
trainer or horseman with respect to employment associated with fair
meetings prior to January 1, 2003. After this date, employees shall
be added by accretion into an existing contract where applicable.
For racing meetings conducted in the central and southern zones
during the first three months of any calendar year and for fair
racing meetings, this section shall not apply to trainers who
normally reside and work outside of California and who are engaged in
racing in this state for a limited period of time, not exceeding 90
racing days in any calendar year. For any other racing meeting
conducted during any calendar year, this section shall not apply to
trainers, backstretch workers, or both, who normally reside and work
outside of California and who are engaged in racing in this state for
a limited period of time, not exceeding 50 racing days in any
calendar year.
(10) Except as provided in subparagraph (A) of paragraph (8), at
any time subsequent to the expiration of an agreement under paragraph
(8), when the agreement is not in effect, the board may recognize a
majority interest, obtained during this period in the same manner as
union recognition of employees, within a multiple employer bargaining
unit who no longer desire to be represented by the union, and
withdraw the recognition granted pursuant to this section from that
union. An employer may inform his or her employees that a process
for decertification exists and direct them to the board for
information. However, any card, signature, vote, or other indicator
obtained for this purpose by means of coercion or threat or with the
assistance or inducement of any employer shall be invalid.
(11) Disputes, other than disputes concerning the
operation and application of ongoing contracts, disputes subject to
binding interest arbitration pursuant to subparagraph (B) of
paragraph (8), and economic disputes arising in the context of
multiemployer bargaining pursuant to subparagraph (A) of paragraph
(8), but including disputes concerning the rights established in
paragraphs (1) and (2), upon complaint shall be adjudicated by the
stewards. The stewards shall have the authority to order any remedy,
including reinstatement of employment, injunctive relief, damages,
and attorney's fees. An investigation and adjudication by the
stewards shall be concluded as expeditiously as possible, consistent
with applicable standards of due process. In addition, the board may
require the parties to submit the issue to binding arbitration
subject to judicial review in the same manner as decisions of the
board. Disputes subject to this paragraph include disputes involving
any backstretch employee or group of employees, and any trainer or
group of trainers.
(12) Upon submission of a complaint to binding arbitration under
any provision of this article, the executive director of the board
shall select an arbitrator from a panel of professional arbitrators
with expertise in labor negotiations selected by the California State
Mediation and Conciliation Service or from a panel identified in
collective bargaining agreements between labor organizations and
employers in the horse racing industry in California, or both. The
arbitrators selected by the service or identified in collective
bargaining agreements shall be available to resolve the matter
expeditiously. The arbitrator selected by the executive director
shall have the authority to convene an immediate hearing and require
the parties to exercise all due diligence in promptly attending to
the issue in controversy. In all matters pertaining to the rights
established by this article, an arbitrator shall have the authority
to fashion an appropriate remedy, including reinstatement of
employment, injunctive relief, damages, and attorney's fees, and
issuance of a make-whole remedy in the event of a persistent failure
of a party to bargain in good faith. The board may take any
administrative action within its authority to ensure compliance with
decisions of arbitrators authorized by this section. Either party
may also bring an action in state court to compel a party to go into
arbitration or to enforce the decision of an arbitrator. Costs of
arbitration shall be shared equally by the parties, and any party
shall be entitled to recover any reasonable fees or costs incurred in
securing compliance with or enforcement of an award or order of the
arbitrator.
(e) Nothing in this section shall prevent a labor union and an
individual trainer, or any group of trainers, from entering into a
mutually acceptable agreement, which may substitute for the
requirements of subdivision (d), for union organizing of employees of
the horsemen or trainers. Nothing in this article shall be
interpreted to require representative parties in negotiation to
enter into any labor agreement, as long as each party is negotiating
in a good faith effort to reach an agreement.
SEC. 28. Section 19549.14 of the Business and Professions Code is
amended to read:
19549.14. (a) Notwithstanding, Section 19489 or any other
provision of this chapter, the board may permit the San Mateo County
Fair to conduct live racing meetings at another site within or
without San Mateo County if its present site, Bay Meadows, closes.
(b) Live horse racing meetings conducted by the San Mateo County
Fair, whether they are conducted within or without San Mateo County,
shall be subject to the same provisions as are presently applicable
to the San Mateo County Fair's conduct of live horse racing meetings
at Bay Meadows.
SEC. 29. Section 20007 of the Business and Professions Code is
amended to read:
20007. "Franchise fee" means any fee or charge that a franchisee
or subfranchisor is required to pay or agrees to pay for the right to
enter into a business under a franchise agreement, including, but
not limited to, any payment for goods and services.
However, the following shall not be considered the payment of a
franchise fee:
(a) The purchase or agreement to purchase goods at a bona fide
wholesale price if no obligation is imposed upon the purchaser to
purchase or pay for a quantity of goods in excess of that which a
reasonable businessperson normally would purchase by way of a
starting inventory or supply or to maintain a going inventory or
supply.
(b) The payment of a reasonable service charge to the issuer of a
credit card by an establishment accepting or honoring that credit
card.
(c) Amounts paid to a trading stamp company under Chapter 3
(commencing with Section 17750) of Part 3 of Division 7 by a person
issuing trading stamps in connection with the retail sale of
merchandise or service.
(d) The payment, directly or indirectly, of a franchise fee which,
on an annual basis, does not exceed the sum of one hundred dollars
($100).
(e) The payment of a sum of not exceeding one thousand dollars
($1,000) annually on account of the purchase price or rental of
fixtures, equipment, or other tangible property to be utilized in,
and necessary for, the operation of the franchised business, if the
price or rental so charged does not exceed the cost which would be
incurred by the franchisee acquiring the item or items from other
persons or in the open market.
SEC. 30. Section 23987 of the Business and Professions Code is
amended to read:
23987. Upon the receipt by the department of an original
application for any license or an application for transfer of any
license, written notice thereof, consisting of a copy of the
application, shall immediately be mailed by the department to the
sheriff, chief of police, and district attorney of the locality in
which the premises are situated, to the city or county planning
director, whoever has jurisdiction, the board of supervisors of the
county in which the premises are situated, if within an
unincorporated area, and to the city council or other governing body
of the city in which the premises are situated, if within an
incorporated area.
Except as specified in paragraph (2) of subdivision (e) of Section
23800, no license shall be issued or transferred by the department
until at least 30 days after the mailing by the department of the
notices required by this section. The department may extend the
30-day period specified in the preceding sentence for a period not to
exceed an additional 20 days, upon the written request of any local
law enforcement agency that states proper grounds for extension.
Proper grounds for extension are limited to the requesting agency or
official being in the process of preparing either a protest or
proposed conditions with respect to the issuance or transfer of a
license.
SEC. 31. Section 43.8 of the Civil Code is amended to read:
43.8. In addition to the privilege afforded by Section 47, there
shall be no monetary liability on the part of, and no cause of action
for damages shall arise against, any person on account of the
communication of information in the possession of that person to any
hospital, hospital medical staff, veterinary hospital staff,
professional society, medical, dental, podiatric, or veterinary
school, professional licensing board or division, committee or panel
of a licensing board, the Senior Assistant Attorney General of the
Health Quality Enforcement Section appointed under Section 12529 of
the Government Code, peer review committee, quality assurance
committees established in compliance with Sections 4070 and 5624 of
the Welfare and Institutions Code, or underwriting committee
described in Section 43.7 when the communication is intended to aid
in the evaluation of the qualifications, fitness, character, or
insurability of a practitioner of the healing or veterinary arts.
The immunities afforded by this section and by Section 43.7 shall not
affect the availability of any absolute privilege which may be
afforded by Section 47.
SEC. 32. Section 789 of the Civil Code is amended to read:
789. A tenancy or other estate at will, however created, may be
terminated by the landlord's giving notice in writing to the tenant,
in the manner prescribed by Section 1162 of the Code of Civil
Procedure, to remove from the premises within a period of not less
than 30 days, to be specified in the notice.
SEC. 33. Section 827 of the Civil Code, as amended by Section 1 of
Chapter 593 of the Statutes of 2001, is amended to read:
827. (a) Except as provided in subdivision (b), in all leases of
lands or tenements, or of any interest therein, from week to week,
month to month, or other period less than a month, the landlord may,
upon giving notice in writing to the tenant, in the manner prescribed
by Section 1162 of the Code of Civil Procedure, change the terms of
the lease to take effect, as to tenancies for less than one month,
upon the expiration of a period at least as long as the term of the
hiring itself, and, as to tenancies from month to month, to take
effect at the expiration of not less than 30 days, but if that change
takes effect within a rental term, the rent accruing from the first
day of the term to the date of that change shall be computed at the
rental rate obtained immediately prior to that change; provided,
however, that it shall be competent for the parties to provide by an
agreement in writing that a notice changing the terms thereof may be
given at any time not less than seven days before the expiration of a
term, to be effective upon the expiration of the term.
The notice, when served upon the tenant, shall in and of itself
operate and be effectual to create and establish, as a part of the
lease, the terms, rents, and conditions specified in the notice, if
the tenant shall continue to hold the premises after the notice takes
effect.
(b) (1) In all leases of a residential dwelling, or of any
interest therein, from week to week, month to month, or other period
less than a month, the landlord may increase the rent provided in the
lease or rental agreement, upon giving written notice to the tenant,
as follows, by either of the following procedures:
(A) By delivering a copy to the tenant personally.
(B) By serving a copy by mail under the procedures prescribed in
Section 1013 of the Code of Civil Procedure.
(2) If the proposed rent increase for that tenant is 10 percent or
less of the rental amount charged to that tenant at any time during
the 12 months prior to the effective date of the increase, either in
and of itself or when combined with any other rent increases for the
12 months prior to the effective date of the increase, the notice
shall be delivered at least 30 days prior to the effective date of
the increase, and subject to Section 1013 of the Code of Civil
Procedure if served by mail.
(3) For an increase in rent greater than the amount described in
paragraph (2), the minimum notice period required pursuant to that
paragraph shall be increased by an additional 30 days, and subject to
Section 1013 of the Code of Civil Procedure if served by mail. This
paragraph shall not apply to an increase in rent caused by a change
in a tenant's income or family composition as determined by a
recertification required by statute or regulation.
(c) If a state or federal statute, state or federal regulation,
recorded regulatory agreement, or contract provides for a longer
period of notice regarding a rent increase than that provided in
subdivision (a) or (b), the personal service or mailing of the notice
shall be in accordance with the longer period.
(d) This section shall be operative only until January 1, 2006,
and as of that date is repealed, unless a later enacted statute,
which is enacted on or before January 1, 2006, deletes or extends
that date.
SEC. 34. Section 827 of the Civil Code, as amended by Section 3 of
Chapter 680 of the Statutes of 2000, is amended to read:
827. (a) In all leases of lands or tenements, or of any interest
therein, from week to week, month to month, or other period less than
a month, the landlord may, upon giving notice in writing to the
tenant, in the manner prescribed by Section 1162 of the Code of Civil
Procedure, change the terms of the lease to take effect, as to
tenancies for less than one month, upon the expiration of a period at
least as long as the term of the hiring itself, and, as to tenancies
from month to month, to take effect at the expiration of not less
than 30 days, but if that change takes effect within a rental term,
the rent accruing from the first day of the term to the date of that
change shall be computed at the rental rate obtained immediately
prior to that change; provided, however, that it shall be competent
for the parties to provide by an agreement in writing that a notice
changing the terms thereof may be given at any time not less than
seven days before the expiration of a term, to be effective upon the
expiration of the term.
The notice, when served upon the tenant, shall in and of itself
operate and be effectual to create and establish, as a part of the
lease, the terms, rents, and conditions specified in the notice, if
the tenant shall continue to hold the premises after the notice takes
effect.
(b) This section shall become operative on January 1, 2006.
SEC. 35. Section 1102.6 of the Civil Code is amended to read:
1102.6. The disclosures required by this article pertaining to
the property proposed to be transferred are set forth in, and shall
be made on a copy of, the following disclosure form:
SEC. 36. Section 1375 of the Civil Code, as amended by Chapter 824
of the Statutes of 2001, is amended to read:
1375. (a) Before an association files a complaint for damages
against a builder, developer, or general contractor ("respondent") of
a common interest development based upon a claim for defects in the
design or construction of the common interest development, all of the
requirements of this section shall be satisfied with respect to the
builder, developer, or general contractor.
(b) The association shall serve upon the respondent a "Notice of
Commencement of Legal Proceedings." The notice shall be served by
certified mail to the registered agent of the respondent, or if there
is no registered agent, then to any officer of the respondent. If
there are no current officers of the respondent, service shall be
upon the person or entity otherwise authorized by law to receive
service of process. Service upon the general contractor shall be
sufficient to initiate the process set forth in this section with
regard to any builder or developer, if the builder or developer is
not amenable to service of process by the foregoing methods. This
notice shall toll all applicable statutes of limitation and repose,
whether contractual or statutory, by and against all potentially
responsible parties, regardless of whether they were named in the
notice, including claims for indemnity applicable to the claim for
the period set forth in subdivision (c). The notice shall include
all of the following:
(1) The name and location of the project.
(2) An initial list of defects sufficient to apprise the
respondent of the general nature of the defects at issue.
(3) A description of the results of the defects, if known.
(4) A summary of the results of a survey or questionnaire
distributed to homeowners to determine the nature and extent of
defects, if a survey has been conducted or a questionnaire has been
distributed.
(5) Either a summary of the results of testing conducted to
determine the nature and extent of defects or the actual test
results, if that testing has been conducted.
(c) Service of the notice shall commence a period, not to exceed
180 days, during which the association, the respondent, and all other
participating parties shall try to resolve the dispute through the
processes set forth in this section. This 180-day period may be
extended for one additional period, not to exceed 180 days, only upon
the mutual agreement of the association, the respondent, and any
parties not deemed peripheral pursuant to paragraph (3) of
subdivision (e). Any extensions beyond the first extension shall
require the agreement of all participating parties. Unless extended,
the dispute resolution process prescribed by this section shall be
deemed completed. All extensions shall continue the tolling period
described in subdivision (b).
(d) Within 25 days of the date the association serves the Notice
of Commencement of Legal Proceedings, the respondent may request in
writing to meet and confer with the board of directors of the
association. Unless the respondent and the association otherwise
agree, there shall be not more than one meeting, which shall take
place no later than 10 days from the date of the respondent's written
request, at a mutually agreeable time and place. The meeting shall
be subject to subdivision (b) of Section 1363.05. The discussions at
the meeting are privileged communications and are not admissible in
evidence in any civil action, unless the association and the
respondent consent in writing to their admission.
(e) Upon receipt of the notice, the respondent shall, within 60
days, comply with the following:
(1) The respondent shall provide the association with access to,
for inspection and copying of, all plans and specifications,
subcontracts, and other construction files for the project that are
reasonably calculated to lead to the discovery of admissible evidence
regarding the defects claimed. The association shall provide the
respondent with access to, for inspection and copying of, all files
reasonably calculated to lead to the discovery of admissible evidence
regarding the defects claimed, including all reserve studies,
maintenance records and any survey questionnaires, or results of
testing to determine the nature and extent of defects. To the extent
any of the above documents are withheld based on privilege, a
privilege log shall be prepared and submitted to all other parties.
All other potentially responsible parties shall have the same rights
as the respondent regarding the production of documents upon receipt
of written notice of the claim, and shall produce all relevant
documents within 60 days of receipt of the notice of the claim.
(2) The respondent shall provide written notice by certified mail
to all subcontractors, design professionals, their insurers, and the
insurers of any additional insured whose identities are known to the
respondent or readily ascertainable by review of the project files or
other similar sources and whose potential responsibility appears on
the face of the notice. This notice to subcontractors, design
professionals, and insurers shall include a copy of the Notice of
Commencement of Legal Proceedings, and shall specify the date and
manner by which the parties shall meet and confer to select a dispute
resolution facilitator pursuant to paragraph (1) of subdivision (f),
advise the recipient of its obligation to participate in the meet
and confer or serve a written acknowledgment of receipt regarding
this notice, advise the recipient that it will waive any challenge to
selection of the dispute resolution facilitator if it elects not to
participate in the meet and confer, advise the recipient that it may
be bound by any settlement reached pursuant to subdivision (d) of
Section 1375.05, advise the recipient that it may be deemed to have
waived rights to conduct inspection and testing pursuant to
subdivision (c) of Section 1375.05, advise the recipient that it may
seek the assistance of an attorney, and advise the recipient that it
should contact its insurer, if any. Any subcontractor or design
professional, or insurer for that subcontractor, design professional,
or additional insured, who receives written notice from the
respondent regarding the meet and confer shall, prior to the meet and
confer, serve on the respondent a written acknowledgment of receipt.
That subcontractor or design professional shall, within 10 days of
service of the written acknowledgment of receipt, provide to the
association and the respondent a Statement of Insurance that includes
both of the following:
(A) The names, addresses, and contact persons, if known, of all
insurance carriers, whether primary or excess and regardless of
whether a deductible or self-insured retention applies, whose
policies were in effect from the commencement of construction of the
subject project to the present and which potentially cover the
subject claims.
(B) The applicable policy numbers for each policy of insurance
provided.
(3) Any subcontractor or design professional, or insurer for that
subcontractor, design professional, or additional insured, who so
chooses, may, at any time, make a written request to the dispute
resolution facilitator for designation as a peripheral party. That
request shall be served contemporaneously on the association and the
respondent. If no objection to that designation is received within
15 days, or upon rejection of that objection, the dispute resolution
facilitator shall designate that subcontractor or design professional
as a peripheral party, and shall thereafter seek to limit the
attendance of that subcontractor or design professional only to those
dispute resolution sessions deemed peripheral party sessions or to
those sessions during which the dispute resolution facilitator
believes settlement as to peripheral parties may be finalized.
Nothing in this subdivision shall preclude a party who has been
designated a peripheral party from being reclassified as a
nonperipheral party, nor shall this subdivision preclude a party
designated as a nonperipheral party from being reclassified as a
peripheral party after notice to all parties and an opportunity to
object. For purposes of this subdivision, a peripheral party is a
party having total claimed exposure of less than twenty-five thousand
dollars ($25,000).
(f) (1) Within 20 days of sending the notice set forth in
paragraph (2) of subdivision (e), the association, respondent,
subcontractors, design professionals, and their insurers who have
been sent a notice as described in paragraph (2) of subdivision (e)
shall meet and confer in an effort to select a dispute resolution
facilitator to preside over the mandatory dispute resolution process
prescribed by this section. Any subcontractor or design professional
who has been given timely notice of this meeting but who does not
participate, waives any challenge he or she may have as to the
selection of the dispute resolution facilitator. The role of the
dispute resolution facilitator is to attempt to resolve the conflict
in a fair manner. The dispute resolution facilitator shall be
sufficiently knowledgeable in the subject matter and be able to
devote sufficient time to the case. The dispute resolution
facilitator shall not be required to reside in or have an office in
the county in which the project is located. The dispute resolution
facilitator and the participating parties shall agree to a date,
time, and location to hold a case management meeting of all parties
and the dispute resolution facilitator, to discuss the claims being
asserted and the scheduling of events under this section. The case
management meeting with the dispute resolution facilitator shall be
held within 100 days of service of the Notice of Commencement of
Legal Proceedings at a location in the county where the project is
located. Written notice of the case management meeting with the
dispute resolution facilitator shall be sent by the respondent to the
association, subcontractors and design professionals, and their
insurers who are known to the respondent to be on notice of the
claim, no later than 10 days prior to the case management meeting,
and shall specify its date, time, and location. The dispute
resolution facilitator in consultation with the respondent shall
maintain a contact list of the participating parties.
(2) No later than 10 days prior to the case management meeting,
the dispute resolution facilitator shall disclose to the parties all
matters that could cause a person aware of the facts to reasonably
entertain a doubt that the proposed dispute resolution facilitator
would be able to resolve the conflict in a fair manner. The
facilitator's disclosure shall include the existence of any ground
specified in Section 170.1 of the Code of Civil Procedure for
disqualification of a judge, any attorney-client relationship the
facilitator has or had with any party or lawyer for a party to the
dispute resolution process, and any professional or significant
personal relationship the facilitator or his or her spouse or minor
child living in the household has or had with any party to the
dispute resolution process. The disclosure shall also be provided to
any subsequently noticed subcontractor or design professional within
10 days of the notice.
(3) A dispute resolution facilitator shall be disqualified by the
court if he or she fails to comply with this paragraph and any party
to the dispute resolution process serves a notice of disqualification
prior to the case management meeting. If the dispute resolution
facilitator complies with this paragraph, he or she shall be
disqualified by the court on the basis of the disclosure if any party
to the dispute resolution process serves a notice of
disqualification prior to the case management meeting.
(4) If the parties cannot mutually agree to a dispute resolution
facilitator, then each party shall submit a list of three dispute
resolution facilitators. Each party may then strike one nominee from
the other parties' list, and petition the court, pursuant to the
procedure described in subdivisions (n) and (o), for final selection
of the dispute resolution facilitator. The court may issue an order
for final selection of the dispute resolution facilitator pursuant to
this paragraph.
(5) Any subcontractor or design professional who receives notice
of the association's claim without having previously received timely
notice of the meet and confer to select the dispute resolution
facilitator shall be notified by the respondent regarding the name,
address, and telephone number of the dispute resolution facilitator.
Any such subcontractor or design professional may serve upon the
parties and the dispute resolution facilitator a written objection to
the dispute resolution facilitator within 15 days of receiving
notice of the claim. Within seven days after service of this
objection, the subcontractor or design professional
may petition the superior court to replace
the dispute resolution facilitator. The court may replace the
dispute resolution facilitator only upon a showing of good cause,
liberally construed. Failure to satisfy the deadlines set forth in
this subdivision shall constitute a waiver of the right to challenge
the dispute resolution facilitator.
(6) The costs of the dispute resolution facilitator shall be
apportioned in the following manner: one-third to be paid by the
association; one-third to be paid by the respondent; and one-third to
be paid by the subcontractors and design professionals, as allocated
among them by the dispute resolution facilitator. The costs of the
dispute resolution facilitator shall be recoverable by the prevailing
party in any subsequent litigation pursuant to Section 1032 of the
Code of Civil Procedure, provided however that any nonsettling party
may, prior to the filing of the complaint, petition the facilitator
to reallocate the costs of the dispute resolution facilitator as they
apply to any nonsettling party. The determination of the dispute
resolution facilitator with respect to the allocation of these costs
shall be binding in any subsequent litigation. The dispute
resolution facilitator shall take into account all relevant factors
and equities between all parties in the dispute resolution process
when reallocating costs.
(7) In the event the dispute resolution facilitator is replaced at
any time, the case management statement created pursuant to
subdivision (h) shall remain in full force and effect.
(8) The dispute resolution facilitator shall be empowered to
enforce all provisions of this section.
(g) (1) No later than the case management meeting, the parties
shall begin to generate a data compilation showing the following
information regarding the alleged defects at issue:
(A) The scope of the work performed by each potentially
responsible subcontractor.
(B) The tract or phase number in which each subcontractor provided
goods or services, or both.
(C) The units, either by address, unit number, or lot number, at
which each subcontractor provided goods or services, or both.
(2) This data compilation shall be updated as needed to reflect
additional information. Each party attending the case management
meeting, and any subsequent meeting pursuant to this section, shall
provide all information available to that party relevant to this data
compilation.
(h) At the case management meeting, the parties shall, with the
assistance of the dispute resolution facilitator, reach agreement on
a case management statement, which shall set forth all of the
elements set forth in paragraphs (1) to (8), inclusive, except that
the parties may dispense with one or more of these elements if they
agree that it is appropriate to do so. The case management statement
shall provide that the following elements shall take place in the
following order:
(1) Establishment of a document depository, located in the county
where the project is located, for deposit of documents, defect lists,
demands, and other information provided for under this section. All
documents exchanged by the parties and all documents created
pursuant to this subdivision shall be deposited in the document
depository, which shall be available to all parties throughout the
prefiling dispute resolution process and in any subsequent
litigation. When any document is deposited in the document
depository, the party depositing the document shall provide written
notice identifying the document to all other parties. The costs of
maintaining the document depository shall be apportioned among the
parties in the same manner as the costs of the dispute resolution
facilitator.
(2) Provision of a more detailed list of defects by the
association to the respondent after the association completes a
visual inspection of the project. This list of defects shall provide
sufficient detail for the respondent to ensure that all potentially
responsible subcontractors and design professionals are provided with
notice of the dispute resolution process. If not already completed
prior to the case management meeting, the Notice of Commencement of
Legal Proceedings shall be served by the respondent on all additional
subcontractors and design professionals whose potential
responsibility appears on the face of the more detailed list of
defects within seven days of receipt of the more detailed list. The
respondent shall serve a copy of the case management statement,
including the name, address, and telephone number of the dispute
resolution facilitator, to all the potentially responsible
subcontractors and design professionals at the same time.
(3) Nonintrusive visual inspection of the project by the
respondent, subcontractors, and design professionals.
(4) Invasive testing conducted by the association, if the
association deems appropriate. All parties may observe and
photograph any testing conducted by the association pursuant to this
paragraph, but may not take samples or direct testing unless, by
mutual agreement, costs of testing are shared by the parties.
(5) Provision by the association of a comprehensive demand which
provides sufficient detail for the parties to engage in meaningful
dispute resolution as contemplated under this section.
(6) Invasive testing conducted by the respondent, subcontractors,
and design professionals, if they deem appropriate.
(7) Allowance for modification of the demand by the association if
new issues arise during the testing conducted by the respondent,
subcontractor, or design professionals.
(8) Facilitated dispute resolution of the claim, with all parties,
including peripheral parties, as appropriate, and insurers, if any,
present and having settlement authority. The dispute resolution
facilitators shall endeavor to set specific times for the attendance
of specific parties at dispute resolution sessions. If the dispute
resolution facilitator does not set specific times for the attendance
of parties at dispute resolution sessions, the dispute resolution
facilitator shall permit those parties to participate in dispute
resolution sessions by telephone.
(i) In addition to the foregoing elements of the case management
statement described in subdivision (h), upon mutual agreement of the
parties, the dispute resolution facilitator may include any or all of
the following elements in a case management statement: the exchange
of consultant or expert photographs; expert presentations; expert
meetings; or any other mechanism deemed appropriate by the parties in
the interest of resolving the dispute.
(j) The dispute resolution facilitator, with the guidance of the
parties, shall at the time the case management statement is
established, set deadlines for the occurrence of each event set forth
in the case management statement, taking into account such factors
as the size and complexity of the case, and the requirement of this
section that this dispute resolution process not exceed 180 days
absent agreement of the parties to an extension of time.
(k) (1) (A) At a time to be determined by the dispute resolution
facilitator, the respondent may submit to the association all of the
following:
(i) A request to meet with the board to discuss a written
settlement offer.
(ii) A written settlement offer, and a concise explanation of the
reasons for the terms of the offer.
(iii) A statement that the respondent has access to sufficient
funds to satisfy the conditions of the settlement offer.
(iv) A summary of the results of testing conducted for the
purposes of determining the nature and extent of defects, if this
testing has been conducted, unless the association provided the
respondent with actual test results.
(B) If the respondent does not timely submit the items required by
this subdivision, the association shall be relieved of any further
obligation to satisfy the requirements of this subdivision only.
(C) No less than 10 days after the respondent submits the items
required by this paragraph, the respondent and the board of directors
of the association shall meet and confer about the respondent's
settlement offer.
(D) If the association's board of directors rejects a settlement
offer presented at the meeting held pursuant to this subdivision, the
board shall hold a meeting open to each member of the association.
The meeting shall be held no less than 15 days before the association
commences an action for damages against the respondent.
(E) No less than 15 days before this meeting is held, a written
notice shall be sent to each member of the association specifying all
of the following:
(i) That a meeting will take place to discuss problems that may
lead to the filing of a civil action, and the time and place of this
meeting.
(ii) The options that are available to address the problems,
including the filing of a civil action and a statement of the various
alternatives that are reasonably foreseeable by the association to
pay for those options and whether these payments are expected to be
made from the use of reserve account funds or the imposition of
regular or special assessments, or emergency assessment increases.
(iii) The complete text of any written settlement offer, and a
concise explanation of the specific reasons for the terms of the
offer submitted to the board at the meeting held pursuant to
subdivision (d) that was received from the respondent.
(F) The respondent shall pay all expenses attributable to sending
the settlement offer to all members of the association. The
respondent shall also pay the expense of holding the meeting, not to
exceed three dollars ($3) per association member.
(G) The discussions at the meeting and the contents of the notice
and the items required to be specified in the notice pursuant to
paragraph (E) are privileged communications and are not admissible in
evidence in any civil action, unless the association consents to
their admission.
(H) No more than one request to meet and discuss a written
settlement offer may be made by the respondent pursuant to this
subdivision.
(l) Except for the purpose of in camera review as provided in
subdivision (c) of Section 1375.05, all defect lists and demands,
communications, negotiations, and settlement offers made in the
course of the prelitigation dispute resolution process provided by
this section shall be inadmissible pursuant to Sections 1119 to 1124,
inclusive, of the Evidence Code and all applicable decisional law.
This inadmissibility shall not be extended to any other documents or
communications which would not otherwise be deemed inadmissible.
(m) Any subcontractor or design professional may, at any time,
petition the dispute resolution facilitator to release that party
from the dispute resolution process upon a showing that the
subcontractor or design professional is not potentially responsible
for the defect claims at issue. The petition shall be served
contemporaneously on all other parties, who shall have 15 days from
the date of service to object. If a subcontractor or design
professional is released, and it later appears to the dispute
resolution facilitator that it may be a responsible party in light of
the current defect list or demand, the respondent shall renotice the
party as provided by paragraph (2) of subdivision (e), provide a
copy of the current defect list or demand, and direct the party to
attend a dispute resolution session at a stated time and location. A
party who subsequently appears after having been released by the
dispute resolution facilitator shall not be prejudiced by its absence
from the dispute resolution process as the result of having been
previously released by the dispute resolution facilitator.
(n) Any party may, at any time, petition the superior court in the
county where the project is located, upon a showing of good cause,
and the court may issue an order, for any of the following, or for
appointment of a referee to resolve a dispute regarding any of the
following:
(1) To take a deposition of any party to the process, or subpoena
a third party for deposition or production of documents, which is
necessary to further prelitigation resolution of the dispute.
(2) To resolve any disputes concerning inspection, testing,
production of documents, or exchange of information provided for
under this section.
(3) To resolve any disagreements relative to the timing or
contents of the case management statement.
(4) To authorize internal extensions of timeframes set forth in
the case management statement.
(5) To seek a determination that a settlement is a good faith
settlement pursuant to Section 877.6 of the Code of Civil Procedure
and all related authorities. The page limitations and meet and
confer requirements specified in this section shall not apply to
these motions, which may be made on shortened notice. Instead, these
motions shall be subject to other applicable state law, rules of
court, and local rules. A determination made by the court pursuant
to this motion shall have the same force and effect as the
determination of a postfiling application or motion for good faith
settlement.
(6) To ensure compliance, on shortened notice, with the obligation
to provide a Statement of Insurance pursuant to paragraph (2) of
subdivision (e).
(7) For any other relief appropriate to the enforcement of the
provisions of this section, including the ordering of parties, and
insurers, if any, to the dispute resolution process with settlement
authority.
(o) (1) A petition filed pursuant to subdivision (n) shall be
filed in the superior court in the county in which the project is
located. The court shall hear and decide the petition within 10 days
after filing. The petitioning party shall serve the petition on all
parties, including the date, time, and location of the hearing no
later than five business days prior to the hearing. Any responsive
papers shall be filed and served no later than three business days
prior to the hearing. Any petition or response filed under this
section shall be no more than three pages in length.
(2) All parties shall meet with the dispute resolution
facilitator, if one has been appointed and confer in person or by the
telephone prior to the filing of that petition to attempt to resolve
the matter without requiring court intervention.
(p) As used in this section:
(1) "Association" shall have the same meaning as defined in
subdivision (a) of Section 1351.
(2) "Builder" means the declarant, as defined in subdivision (g)
of Section 1351.
(3) "Common interest development" shall have the same meaning as
in subdivision (c) of Section 1351, except that it shall not include
developments or projects with less than 20 units.
(q) The alternative dispute resolution process and procedures
described in this section shall have no application or legal effect
other than as described in this section.
(r) This section shall become operative on July 1, 2002, however
it shall not apply to any pending suit or claim for which notice has
previously been given.
(s) This section shall become inoperative on July 1, 2010, and as
of January 1, 2011, is repealed, unless a later enacted statute, that
is enacted before January 1, 2011, deletes or extends the dates on
which it becomes inoperative and is repealed.
SEC. 37. Section 1375.05 of the Civil Code is amended to read:
1375.05. (a) Upon the completion of the mandatory prefiling
dispute resolution process described in Section 1375, if the parties
have not settled the matter, the association or its assignee may file
a complaint in the superior court in the county in which the project
is located. Those matters shall be given trial priority.
(b) In assigning trial priority, the court shall assign the
earliest possible trial date, taking into consideration the pretrial
preparation completed pursuant to Section 1375, and shall deem the
complaint to have been filed on the date of service of the Notice of
Commencement of Legal Proceedings described under Section 1375.
(c) Any respondent, subcontractor, or design professional who
received timely prior notice of the inspections and testing conducted
under Section 1375 shall be prohibited from engaging in additional
inspection or testing, except if all of the following specific
conditions are met, upon motion to the court:
(1) There is an insurer for a subcontractor or design
professional, that did not have timely notice that legal proceedings
were commenced under Section 1375 at least 30 days prior to the
commencement of inspections or testing pursuant to paragraph (6) of
subdivision (h) of Section 1375.
(2) The insurer's insured did not participate in any inspections
or testing conducted under the provisions of paragraph (6) of
subdivision (h) of Section 1375.
(3) The insurer has, after receiving notice of a complaint filed
in superior court under subdivision (a), retained separate counsel,
who did not participate in the Section 1375 dispute resolution
process, to defend its insured as to the allegations in the
complaint.
(4) It is reasonably likely that the insured would suffer
prejudice if additional inspections or testing are not permitted.
(5) The information obtainable through the proposed additional
inspections or testing is not available through any reasonable
alternative sources.
If the court permits additional inspections or testing upon
finding that these requirements are met, any additional inspections
or testing shall be limited to the extent reasonably necessary to
avoid the likelihood of prejudice and shall be coordinated among all
similarly situated parties to ensure that they occur without
unnecessary duplication. For purposes of providing notice to an
insurer prior to inspections or testing under paragraph (6) of
subdivision (h) of Section 1375, if notice of the proceedings was not
provided by the insurer's insured, notice may be made via certified
mail either by the subcontractor, design professional, association,
or respondent to the address specified in the Statement of Insurance
provided under paragraph (2) of subdivision (e) of Section 1375.
Nothing herein shall affect the rights of an intervenor who files a
complaint in intervention. If the association alleges defects that
were not specified in the prefiling dispute resolution process under
Section 1375, the respondent, subcontractor, and design professionals
shall be permitted to engage in testing or inspection necessary to
respond to the additional claims. A party who seeks additional
inspections or testing based upon the amendment of claims shall apply
to the court for leave to conduct those inspections or that testing.
If the court determines that it must review the defect claims
alleged by the association in the prefiling dispute resolution
process in order to determine whether the association alleges new or
additional defects, this review shall be conducted in camera. Upon
objection of any party, the court shall refer the matter to a judge
other than the assigned trial judge to determine if the claim has
been amended in a way that requires additional testing or inspection.
(d) Any subcontractor or design professional who had notice of the
facilitated dispute resolution conducted under Section 1375 but
failed to attend, or attended without settlement authority, shall be
bound by the amount of any settlement reached in the facilitated
dispute resolution in any subsequent trial, although the affected
party may introduce evidence as to the allocation of the settlement.
Any party who failed to participate in the facilitated dispute
resolution because the party did not receive timely notice of the
mediation shall be relieved of any obligation to participate in the
settlement. Notwithstanding any privilege applicable to the
prefiling dispute resolution process provided by Section 1375,
evidence may be introduced by any party to show whether a
subcontractor or design professional failed to attend or attended
without settlement authority. The binding effect of this subdivision
shall in no way diminish or reduce a nonsettling subcontractor or
design professional's right to defend itself or assert all available
defenses relevant to its liability in any subsequent trial. For
purposes of this subdivision, a subcontractor or design professional
shall not be deemed to have attended without settlement authority
because it asserted defenses to its potential liability.
(e) Notice of the facilitated dispute resolution conducted under
Section 1375 must be mailed by the respondent no later than 20 days
prior to the date of the first facilitated dispute resolution session
to all parties. Notice shall also be mailed to each of these
parties' known insurance carriers. Mailing of this notice shall be
by certified mail. Any subsequent facilitated dispute resolution
notices shall be served by any means reasonably calculated to provide
those parties actual notice.
(f) As to the complaint, the order of discovery shall, at the
request of any defendant, except upon a showing of good cause, permit
the association's expert witnesses to be deposed prior to any
percipient party depositions. The depositions shall, at the request
of the association, be followed immediately by the defendant's
experts and then by the subcontractors' and design professionals'
experts, except on a showing of good cause. For purposes of this
section, in determining what constitutes "good cause," the court
shall consider, among other things, the goal of early disclosure of
defects and whether the expert is prepared to render a final opinion,
except that the court may modify the scope of any expert's
deposition to address those concerns.
(g) (1) The only method of seeking judicial relief for the failure
of the association or the respondent to complete the dispute
resolution process under Section 1375 shall be the assertion, as
provided for in this subdivision, of a procedural deficiency to an
action for damages by the association against the respondent after
that action has been filed. A verified application asserting a
procedural deficiency shall be filed with the court no later than 90
days after the answer to the plaintiff's complaint has been served,
unless the court finds that extraordinary conditions exist.
(2) Upon the verified application of the association or the
respondent alleging substantial noncompliance with Section 1375, the
court shall schedule a hearing within 21 days of the application to
determine whether the association or respondent has substantially
complied with this section. The issue may be determined upon
affidavits or upon oral testimony, in the discretion of the court.
(3) (A) If the court finds that the association or the respondent
did not substantially comply with this paragraph, the court shall
stay the action for up to 90 days to allow the noncomplying party to
establish substantial compliance. The court shall set a hearing
within 90 days to determine substantial compliance. At any time, the
court may, for good cause shown, extend the period of the stay upon
application of the noncomplying party.
(B) If, within the time set by the court pursuant to this
paragraph, the association or the respondent has not established that
it has substantially complied with this section, the court shall
determine if, in the interest of justice, the action should be
dismissed without prejudice, or if another remedy should be
fashioned. Under no circumstances shall the court dismiss the action
with prejudice as a result of the association's failure to
substantially comply with this section. In determining the
appropriate remedy, the court shall consider the extent to which the
respondent has complied with this section.
(h) This section is operative on July 1, 2002, but does not apply
to any action or proceeding pending on that date.
(i) This section shall become inoperative on July 1, 2010, and, as
of January 1, 2011, is repealed, unless a later enacted statute that
is enacted before January 1, 2011, deletes or extends the dates on
which it becomes inoperative and is repealed.
SEC. 38. Section 1632 of the Civil Code is amended to read:
1632. (a) Any person engaged in a trade or business who
negotiates primarily in the Spanish language orally or in writing in
the course of entering into: (1) A contract or agreement subject
to the provisions of Title 2 (commencing with Section 1801) of, and
Chapter 2b (commencing with Section 2981) and Chapter 2d (commencing
with Section 2985.7) of Title 14 of, Part 4 of Division 3; (2) A
loan or extension of credit secured other than by real property, or
unsecured, for use primarily for personal, family or household
purposes; (3) A lease, sublease, rental contract or agreement, or
other term of tenancy contract or agreement, for a period of longer
than one month, covering a dwelling, an apartment, or mobilehome, or
other dwelling unit normally occupied as a residence; or (4)
Notwithstanding paragraph (2), a loan or extension of credit for use
primarily for personal, family or household purposes where the loan
or extension of credit is subject to the provisions of Article 7
(commencing with Section 10240) of Chapter 3 of Part 1 of Division 4
of the Business and Professions Code, or Division 7 (commencing with
Section 18000), or Division 9 (commencing with Section 22000) of the
Financial Code; or (5) A contract or agreement, containing a
statement of fees or charges, entered into for the purpose of
obtaining legal services, when the person who is engaged in business
is currently licensed to practice law pursuant to Chapter 4
(commencing with Section 6000) of Division 3 of the Business and
Professions Code; shall, deliver to the party to the contract or
agreement and prior to the execution thereof, an unexecuted
Spanish-language translation of the contract or agreement, except
that for a loan subject to this part and to the provisions of Article
7 (commencing with Section 10240) of Chapter 3 of Part 1 of Division
4 of the Business and Professions Code, the delivery of a
Spanish-language translation of the statement to borrower required by
Section 10240 of the Business and Professions Code shall be deemed
compliance with this subdivision. At the time and place where a
contract or agreement described in this subdivision is executed, a
Spanish-language notice shall be provided to the lessee or tenant.
(b) Provision by a supervised financial organization of a
Spanish-language translation of the disclosures required by
Regulation M or Regulation Z, and, if applicable, Division 7
(commencing with Section 18000) or Division 9 (commencing with
Section 22000) of the
Financial Code, prior to the execution of the contract shall also be
deemed compliance with the requirements of subdivision (a) with
regard to the original contract or agreement.
(1) "Regulation M" and "Regulation Z" mean any rule, regulation,
or interpretation promulgated by the Board of Governors of the
Federal Reserve System and any interpretation or approval issued by
an official or employee duly authorized by the board to issue
interpretations or approvals dealing with, respectively, consumer
leasing or consumer lending, pursuant to the Federal Truth in Lending
Act, as amended (15 U.S.C. Sec. 1601 et seq.).
(2) As used in this section, "supervised financial organization"
means a bank, savings association, as defined in Section 5102 of the
Financial Code, credit union, or holding company, affiliate, or
subsidiary thereof, or any person subject to Article 7 (commencing
with Section 10240) of Chapter 3 of Part 1 of Division 4 of the
Business and Professions Code, or Division 7 (commencing with Section
18000) or Division 9 (commencing with Section 22000) of the
Financial Code.
(c) At the time and place where a contract or agreement described
in paragraph (1) or (2) of subdivision (a) is executed, a
Spanish-language notice shall be conspicuously displayed to the
effect that the person described in subdivision (a) is required to
provide an unexecuted Spanish-language contract or agreement, or a
Spanish-language translation of the disclosures required by law, as
the case may be. If a person described in subdivision (a) does
business at more than one location or branch, the requirements of
this section shall apply only with respect to the location or branch
at which the Spanish language is used.
(d) The term "contract" or "agreement," as used in this section,
means the document creating the rights and obligations of the parties
and includes any subsequent document making substantial changes in
the rights and obligations of the parties. The term "contract" or
"agreement" does not include any subsequent documents authorized or
contemplated by the original document such as periodic statements,
sales slips or invoices representing purchases made pursuant to a
credit card agreement, a retail installment contract or account or
other revolving sales or loan account, memoranda of purchases in an
add-on sale, or refinancing of a purchase as provided by, or pursuant
to, the original document.
The term "contract" or "agreement" does not include a home
improvement contract as defined in Sections 7151.2 and 7159 of the
Business and Professions Code, nor does it include plans,
specifications, description of work to be done and materials to be
used, or collateral security taken or to be taken for the retail
buyer's obligation contained in a contract for the installation of
goods by a contractor licensed pursuant to Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code, if
the home improvement contract or installation contract is otherwise
a part of a contract described in subdivision (a).
Matters ordinarily incorporated by reference in contracts or
agreements as described in paragraph (3) of subdivision (a),
including, but not limited to, rules and regulations governing a
tenancy and inventories of furnishings to be provided by the person
described in subdivision (a), are not included in the term "contract"
or "agreement."
(e) This section does not apply to any person engaged in a trade
or business who negotiates primarily in the Spanish language as
described by subdivision (a) if the party with whom he or she is
negotiating is a buyer of goods or services, or receives a loan or
extension of credit, or enters an agreement obligating himself or
herself as a tenant, lessee, or sublessee, or similarly obligates
himself or herself by contract or lease, and the party negotiates the
terms of the contract, lease, or other obligation through his or her
own interpreter.
As used in this subdivision, "his or her own interpreter" means a
person, not a minor, able to speak fluently and read with full
understanding the English and Spanish languages, and who is not
employed by, or whose service is made available through, the person
engaged in the trade or business.
(f) The terms of the contract or agreement which is executed in
the English language shall determine the rights and obligations of
the parties. However, the Spanish-language translation of the
contract or the disclosures required by subdivision (b) shall be
admissible in evidence only to show that no contract was entered into
because of a substantial difference in the material terms and
conditions of the contract and the translation.
(g) Upon a failure to comply with the provisions of this section,
the person aggrieved may rescind the contract or agreement in the
manner provided by this chapter. When the contract for a consumer
credit sale or consumer lease which has been sold and assigned to a
financial institution is rescinded pursuant to this subdivision, the
consumer shall make restitution to and have restitution made by the
person with whom he or she made the contract, and shall give notice
of rescission to the assignee. Notwithstanding that the contract was
assigned without recourse, the assignment shall be deemed rescinded
and the assignor shall promptly repurchase the contract from the
assignee.
SEC. 38.5. Section 1708 of the Civil Code is amended to read:
1708. Every person is bound, without contract, to abstain from
injuring the person or property of another, or infringing upon any of
his or her rights.
SEC. 39. Section 1748.13 of the Civil Code is amended to read:
1748.13. (a) A credit card issuer shall, with each billing
statement provided to a cardholder in this state, provide the
following on the front of the first page of the billing statement in
type no smaller than that required for any other required disclosure,
but in no case in less than 8-point capitalized type:
(1) A written statement in the following form: "Minimum Payment
Warning: Making only the minimum payment will increase the interest
you pay and the time it takes to repay your balance."
(2) Either of the following:
(A) A written statement in the form of and containing the
information described in clause (i) or (ii), as applicable, as
follows:
(i) A written three-line statement, as follows:
"A one thousand dollar ($1,000) balance will take 17 years and three
months to pay off at a total cost of two thousand five hundred
ninety dollars and thirty-five cents ($2,590.35).
A two thousand five hundred dollar ($2,500) balance will take 30
years and three months to pay off at a total cost of seven thousand
seven hundred thirty-three dollars and forty-nine cents ($7,733.49).
A five thousand dollar ($5,000) balance will take 40 years and two
months to pay off at a total cost of sixteen thousand three hundred
five dollars and thirty-four cents ($16,305.34).
This information is based on an annual percentage rate of 17 percent
and a minimum payment of 2 percent or ten dollars ($10), whichever is
greater."
In the alternative, a credit card issuer may provide this
information for the three specified amounts at the annual percentage
rate and required minimum payment which are applicable to the
cardholder's account. The statement provided shall be immediately
preceded by the statement required by paragraph (1).
(ii) Instead of the information required by clause (i), retail
credit card issuers shall provide a written three-line statement to
read, as follows:
"A two hundred fifty dollar ($250) balance will take two years and
eight months to pay off a total cost of three hundred twenty-five
dollars and twenty-four cents ($325.24).
A five hundred dollar ($500) balance will take four years and five
months to pay off at a total cost of seven hundred nine dollars and
ninety cents ($709.90).
A seven hundred fifty dollar ($750) balance will take five years and
five months to pay off at a total cost of one thousand ninety-four
dollars and forty-nine cents ($1,094.49).
This information is based on an annual percentage rate of 21 percent
and a minimum payment of 5 percent or ten dollars ($10), whichever is
greater."
In the alternative, a retail credit card issuer may provide this
information for the three specified amounts at the annual percentage
rate and required minimum payment which are applicable to the
cardholder's account. The statement provided shall be immediately
preceded by the statement required by paragraph (1). A retail credit
card issuer is not required to provide this statement if the
cardholder has a balance of less than five hundred dollars ($500).
(B) A written statement providing individualized information
indicating an estimate of the number of years and months and the
approximate total cost to pay off the entire balance due on an
open-end credit card account if the cardholder were to pay only the
minimum amount due on the open-ended account based upon the terms of
the credit agreement. For purposes of this subparagraph only, if the
account is subject to a variable rate, the creditor may make
disclosures based on the rate for the entire balance as of the date
of the disclosure and indicate that the rate may vary. In addition,
the cardholder shall be provided with referrals or, in the
alternative, with the "800" telephone number of the National
Foundation for Credit Counseling through which the cardholder can be
referred, to credit counseling services in, or closest to, the
cardholder's county of residence. The credit counseling service
shall be in good standing with the National Foundation for Credit
Counseling or accredited by the Council on Accreditation for Children
and Family Services. The creditor is required to provide, or
continue to provide, the information required by this paragraph only
if the cardholder has not paid more than the minimum payment for six
consecutive months, after July 1, 2002.
(3) (A) A written statement in the following form: "For an
estimate of the time it would take to repay your balance, making only
minimum payments, and the total amount of those payments, call this
toll-free telephone number: (Insert toll-free telephone number)."
This statement shall be provided immediately following the statement
required by subparagraph (A) of paragraph (2). A credit card issuer
is not required to provide this statement if the disclosure required
by subparagraph (B) of paragraph (2) has been provided.
(B) The toll-free telephone number shall be available between the
hours of 8 a.m. and 9 p.m., Pacific standard time, seven days a week,
and shall provide consumers with the opportunity to speak with a
person, rather than a recording, from whom the information described
in subparagraph (A) may be obtained.
(C) The Department of Financial Institutions shall establish a
detailed table illustrating the approximate number of months that it
would take and the approximate total cost to repay an outstanding
balance if the consumer pays only the required minimum monthly
payments and if no other additional charges or fees are incurred on
the account, such as additional extension of credit, voluntary credit
insurance, late fees, or dishonored check fees by assuming all of
the following:
(i) A significant number of different annual percentage rates.
(ii) A significant number of different account balances, with the
difference between sequential examples of balances being no greater
than one hundred dollars ($100).
(iii) A significant number of different minimum payment amounts.
(iv) That only minimum monthly payments are made and no additional
charges or fees are incurred on the account, such as additional
extensions of credit, voluntary credit insurance, late fees, or
dishonored check fees.
(D) A creditor that receives a request for information described
in subparagraph (A) from a cardholder through the toll-free telephone
number disclosed under subparagraph (A), or who is required to
provide the information required by subparagraph (B) of paragraph
(2), may satisfy its obligation to disclose an estimate of the time
it would take and the approximate total cost to repay the cardholder'
s balance by disclosing only the information set forth in the table
described in subparagraph (C). Including the full chart along with a
billing statement does not satisfy the obligation under this
section.
(b) For purposes of this section:
(1) "Credit card" has the same meaning as in paragraph (2) of
subdivision (a) of Section 1748.12.
(2) "Open-end credit card account" means an account in which
consumer credit is granted by a creditor under a plan in which the
creditor reasonably contemplates repeated transactions, the creditor
may impose a finance charge from time to time on an unpaid balance,
and the amount of credit that may be extended to the consumer during
the term of the plan is generally made available to the extent that
any outstanding balance is repaid and up to any limit set by the
creditor.
(3) "Retail credit card" means a credit card is issued by or on
behalf of a retailer, or a private label credit card that is limited
to customers of a specific retailer.
(c) (1) This section shall not apply in any billing cycle in which
the account agreement requires a minimum payment of at least 10
percent of the outstanding balance.
(2) This section shall not apply in any billing cycle in which
finance charges are not imposed.
SEC. 40. Section 1785.11 of the Civil Code is amended to read:
1785.11. (a) A consumer credit reporting agency shall furnish a
consumer credit report only under the following circumstances:
(1) In response to the order of a court having jurisdiction to
issue an order.
(2) In accordance with the written instructions of the consumer to
whom it relates.
(3) To a person whom it has reason to believe:
(A) Intends to use the information in connection with a credit
transaction, or entering or enforcing an order of a court of
competent jurisdiction for support, involving the consumer as to whom
the information is to be furnished and involving the extension of
credit to, or review or collection of an account of, the consumer; or
(B) Intends to use the information for employment purposes; or
(C) Intends to use the information in connection with the
underwriting of insurance involving the consumer, or for insurance
claims settlements; or
(D) Intends to use the information in connection with a
determination of the consumer's eligibility for a license or other
benefit granted by a governmental instrumentality required by law to
consider the applicant's financial responsibility or status; or
(E) Intends to use the information in connection with the hiring
of a dwelling unit, as defined in subdivision (c) of Section 1940; or
(F) Otherwise has a legitimate business need for the information
in connection with a business transaction involving the consumer.
(b) A consumer credit reporting agency may furnish information for
purposes of a credit transaction specified in subparagraph (A) of
paragraph (3) of subdivision (a), where it is a credit transaction
that is not initiated by the consumer, only under the circumstances
specified in paragraph (1) or (2), as follows:
(1) The consumer authorizes the consumer credit reporting agency
to furnish the consumer credit report to the person.
(2) The proposed transaction involves a firm offer of credit to
the consumer, the consumer credit reporting agency has complied with
subdivision (d), and the consumer has not elected pursuant to
paragraph (1) of subdivision (d) to have the consumer's name excluded
from lists of names provided by the consumer credit reporting agency
for purposes of reporting in connection with the potential issuance
of firm offers of credit. A consumer credit reporting agency may
provide only the following information pursuant to this paragraph:
(A) The name and address of the consumer.
(B) Information pertaining to a consumer that is not identified or
identifiable with a particular consumer.
(c) Except as provided in paragraph (3) of subdivision (a) of
Section 1785.15, a consumer credit reporting agency shall not furnish
to any person a record of inquiries solely resulting from credit
transactions that are not initiated by the consumer.
(d) (1) A consumer may elect to have his or her name and address
excluded from any list provided by a consumer credit reporting agency
pursuant to paragraph (2) of subdivision (b) by notifying the
consumer credit reporting agency, by telephone or in writing, through
the notification system maintained by the consumer credit reporting
agency pursuant to subdivision (e), that the consumer does not
consent to any use of consumer credit reports relating to the
consumer in connection with any transaction that is not initiated by
the consumer.
(2) An election of a consumer under paragraph (1) shall be
effective with respect to a consumer credit reporting agency, and any
affiliate of the consumer credit reporting agency, on the date on
which the consumer notifies the consumer credit reporting agency.
(3) An election of a consumer under paragraph (1) shall terminate
and be of no force or effect following notice from the consumer to
the consumer credit reporting agency, through the system established
pursuant to subdivision (e), that the election is no longer
effective.
(e) Each consumer credit reporting agency that furnishes a
prequalifying report pursuant to subdivision (b) in connection with a
credit transaction not initiated by the consumer shall establish and
maintain a notification system, including a toll-free telephone
number, that permits any consumer, with appropriate identification
and for which the consumer credit reporting agency has a file, to
notify the consumer credit reporting agency of the consumer's
election to have the consumer's name removed from any list of names
and addresses provided by the consumer credit reporting agency, and
by any affiliated consumer credit reporting agency, pursuant to
paragraph (2) of subdivision (b). Compliance with the requirements
of this subdivision by a consumer credit reporting agency shall
constitute compliance with those requirements by any affiliate of
that consumer credit reporting agency.
(f) Each consumer credit reporting agency that compiles and
maintains files on consumers on a nationwide basis shall establish
and maintain a notification system under paragraph (1) of subdivision
(e) jointly with its affiliated consumer credit reporting agencies.
SEC. 41. Section 1785.11.2 of the Civil Code is amended to read:
1785.11.2. (a) A consumer may elect to place a security freeze on
his or her credit report by making a request in writing by certified
mail to a consumer credit reporting agency. "Security freeze" means
a notice placed in a consumer's credit report, at the request of the
consumer and subject to certain exceptions, that prohibits the
consumer credit reporting agency from releasing the consumer's credit
report or any information from it without the express authorization
of the consumer. When a security freeze is in place, information
from a consumer's credit report shall not be released to a third
party without prior express authorization from the consumer. This
subdivision does not prevent a consumer credit reporting agency from
advising a third party that a security freeze is in effect with
respect to the consumer's credit report.
(b) A consumer credit reporting agency shall place a security
freeze on a consumer's credit report no later than five business
days after receiving a written request from the consumer.
(c) The consumer credit reporting agency shall send a written
confirmation of the security freeze to the consumer within 10
business days and shall provide the consumer with a unique personal
identification number or password to be used by the consumer when
providing authorization for the release of his or her credit for a
specific party or period of time.
(d) If the consumer wishes to allow his or her credit report to be
accessed for a specific party or period of time while a freeze is in
place, he or she shall contact the consumer credit reporting agency,
request that the freeze be temporarily lifted, and provide the
following:
(1) Proper identification, as defined in subdivision (c) of
Section 1785.15.
(2) The unique personal identification number or password provided
by the credit reporting agency pursuant to subdivision (c).
(3) The proper information regarding the third party who is to
receive the credit report or the time period for which the report
shall be available to users of the credit report.
(e) A consumer credit reporting agency that receives a request
from a consumer to temporarily lift a freeze on a credit report
pursuant to subdivision (d), shall comply with the request no later
than three business days after receiving the request.
(f) A consumer credit reporting agency may develop procedures
involving the use of telephone, fax, the Internet, or other
electronic media to receive and process a request from a consumer to
temporarily lift a freeze on a credit report pursuant to subdivision
(d) in an expedited manner.
(g) A consumer credit reporting agency shall remove or temporarily
lift a freeze placed on a consumer's credit report only in either of
the following cases:
(1) Upon consumer request, pursuant to subdivision (d) or (j).
(2) If the consumer's credit report was frozen due to a material
misrepresentation of fact by the consumer. If a consumer credit
reporting agency intends to remove a freeze upon a consumer's credit
report pursuant to this paragraph, the consumer credit reporting
agency shall notify the consumer in writing prior to removing the
freeze on the consumer's credit report.
(h) If a third party requests access to a consumer credit report
on which a security freeze is in effect, and this request is in
connection with an application for credit or any other use, and the
consumer does not allow his or her credit report to be accessed for
that specific party or period of time, the third party may treat the
application as incomplete.
(i) If a consumer requests a security freeze, the consumer credit
reporting agency shall disclose the process of placing and
temporarily lifting a freeze, and the process for allowing access to
information from the consumer's credit report for a specific party or
period of time while the freeze is in place.
(j) A security freeze shall remain in place until the consumer
requests that the security freeze be removed. A consumer credit
reporting agency shall remove a security freeze within three business
days of receiving a request for removal from the consumer, who
provides both of the following:
(1) Proper identification, as defined in subdivision (c) of
Section 1785.15.
(2) The unique personal identification number or password provided
by the credit reporting agency pursuant to subdivision (c).
(k) A consumer credit reporting agency shall require proper
identification, as defined in subdivision (c) of Section 1785.15, of
the person making a request to place or remove a security freeze.
(l) This section does not apply to the use of a consumer credit
report by the following:
(1) A person or entity, or a subsidiary, affiliate, or agent of
that person or entity, or an assignee of a financial obligation owing
by the consumer to that person or entity, or a prospective assignee
of a financial obligation owing by the consumer to that person or
entity in conjunction with the proposed purchase of the financial
obligation, with which the consumer has or had prior to assignment an
account or contract, including a demand deposit account, or to whom
the consumer issued a negotiable instrument, for the purposes of
reviewing the account or collecting the financial obligation owing
for the account, contract, or negotiable instrument. For purposes of
this paragraph, "reviewing the account" includes activities related
to account maintenance, monitoring, credit line increases, and
account upgrades and enhancements.
(2) A subsidiary, affiliate, agent, assignee, or prospective
assignee of a person to whom access has been granted under
subdivision (d) for purposes of facilitating the extension of credit
or other permissible use.
(3) Any state or local agency, law enforcement agency, trial
court, or private collection agency acting pursuant to a court order,
warrant, or subpoena.
(4) A child support agency acting pursuant to Chapter 2 of
Division 17 of the Family Code or Title IV-D of the Social Security
Act (42 U.S.C. et seq.).
(5) The State Department of Health Services or its agents or
assigns acting to investigate Medi-Cal fraud.
(6) The Franchise Tax Board or its agents or assigns acting to
investigate or collect delinquent taxes or unpaid court orders or to
fulfill any of its other statutory responsibilities.
(7) The use of credit information for the purposes of prescreening
as provided for by the federal Fair Credit Reporting Act.
(m) Nothing in this act shall prevent a consumer credit reporting
agency from charging a reasonable fee to a consumer who elects to
freeze, remove the freeze, or temporarily lift the freeze regarding
access to a consumer credit report, except that a consumer credit
reporting agency may not charge a fee to a victim of identity theft
who has submitted a valid police report or valid Department of Motor
Vehicles investigative report that alleges a violation of Section
530.5 of the Penal Code.
SEC. 42. Section 1798.85 of the Civil Code is amended to read:
1798.85. (a) A person or entity, not including a state or local
agency, shall not do any of the following:
(1) Publicly post or publicly display in any manner an individual'
s social security number. "Publicly post" or "publicly display"
means to intentionally communicate or otherwise make available to the
general public.
(2) Print an individual's social security number on any card
required for the individual to access products or services provided
by the person or entity.
(3) Require an individual to transmit his or her social security
number over the Internet, unless the connection is secure or the
social security number is encrypted.
(4) Require an individual to use his or her social security number
to access an Internet Web site, unless a password or unique personal
identification number or other authentication device is also
required to access the Web site.
(5) Print an individual's social security number on any materials
that are mailed to the individual, unless state or federal law
requires the social security number to be on the document to be
mailed. Notwithstanding this provision, applications and forms sent
by mail may include social security numbers.
(b) Except as provided in subdivision (c), subdivision (a) applies
only to the use of social security numbers on or after July 1, 2002.
(c) Except as provided in subdivision (f), a person or entity, not
including a state or local agency, that has used, prior to July 1,
2002, an individual's social security number in a manner inconsistent
with subdivision (a), may continue using that individual's social
security number in that manner on or after July 1, 2002, if all of
the following conditions are met:
(1) The use of the social security number is continuous. If the
use is stopped for any reason, subdivision (a) shall apply.
(2) The individual is provided an annual disclosure, commencing in
the year 2002, that informs the individual that he or she has the
right to stop the use of his or her social security number in a
manner prohibited by subdivision (a).
(3) A written request by an individual to stop the use of his or
her social security number in a manner prohibited by subdivision (a)
shall be implemented within 30 days of the receipt of the request.
There shall be no fee or charge for implementing the request.
(4) A person or entity, not including a state or local agency,
shall not deny services to an individual because the individual makes
a written request pursuant to this subdivision.
(d) This section does not prevent the collection, use, or release
of a social security number as required by state or federal law or
the use of a social security number for internal verification or
administrative purposes.
(e) This section does not apply to documents that are recorded or
required to be open to the public pursuant to Chapter 3.5 (commencing
with Section 6250), Chapter 14 (commencing with Section 7150), or
Chapter 14.5 (commencing with Section 7220) of Division 7 of Title 1
of, or Chapter 9 (commencing with Section 54950) of Part 1 of
Division 2 of Title 5 of, the Government Code. This section does not
apply to records that are required by statute, case law, or
California Rule of Court, to be made available to the public by
entities provided for in Article VI of the California Constitution.
(f) (1) In the case of a health care service plan, a provider of
health care, an insurer or a pharmacy benefits manager, or a
contractor as defined in Section 56.05, this section shall become
operative in the following manner:
(A) On or before January 1, 2003, the entities listed in paragraph
(1) of subdivision (f) shall comply with paragraphs (1), (3), (4),
and (5) of subdivision (a) as these requirements pertain to
individual policyholders.
(B) On or before January 1, 2004, the entities listed in paragraph
(1) of subdivision (f) shall comply with paragraphs (1) to (5),
inclusive, of subdivision (a) as these requirements pertain to new
individual policyholders and new employer groups issued on or after
January 1, 2004.
(C) On or before July 1, 2004, the entities listed in paragraph
(1) of subdivision (f) shall comply with paragraphs (1) to (5),
inclusive, of subdivision (a) for all policyholders and for all
enrollees of the Healthy Families and Medi-Cal programs, except that
individual and employer group policyholders in existence prior to
January 1, 2004, shall comply upon their renewal date, but no later
than July 1, 2005.
(2) A health care service plan, a provider of health care, an
insurer or a pharmacy benefits manager, or a contractor shall make
reasonable efforts to cooperate, through systems testing and other
means, to ensure that the requirements of this article are
implemented on or before the dates specified in this section.
(3) Notwithstanding paragraph (2), the Director of the Department
of Managed Health Care, pursuant to the authority granted under
Section 1346 of the Health and Safety Code, or the Insurance
Commissioner, pursuant to the authority granted under Section 12921
of the Insurance Code, and upon a determination of good cause, may
grant extensions not to exceed six months for compliance by health
care service plans and insurers with the requirements of this section
when requested by the health care service plan or insurer. Any
extension granted shall apply to the health care service plan or
insurer's affected providers, pharmacy benefits manager, and
contractors.
(g) If a federal law takes effect requiring the United States
Department of Health and Human Services to establish a national
unique patient health identifier program, a provider of health care,
a health care service plan, a licensed health care professional, or a
contractor, as those terms are defined in Section 56.05, that
complies with the federal law shall be deemed in compliance with this
section.
SEC. 43. Section 1936 of the Civil Code is amended to read:
1936. (a) For the purpose of this section, the following
definitions shall apply:
(1) "Rental company" means any person or entity in the business of
renting passenger vehicles to the public.
(2) "Renter" means any person in any manner obligated under a
contract for the lease or hire of a passenger vehicle from a rental
company for a period of less than 30 days.
(3) "Authorized driver" means (A) the renter, (B) the renter's
spouse if that person is a licensed driver and satisfies the rental
company's minimum age requirement, (C) the renter's employer or
coworker if they are engaged in business activity with the renter,
are licensed drivers, and satisfy the rental company's minimum age
requirement, and (D) any person expressly listed by the rental
company on the renter's contract as an authorized driver.
(A) "Customer facility charge" means a fee required by an airport
to be collected by a rental company from a renter for any of the
following purposes:
(i) The fee shall be used to finance, design, and construct
consolidated airport car rental facilities.
(ii) The fee shall be used to finance, design, construct, and
provide common use transportation systems that move passengers
between airport terminals and those consolidated car rental
facilities.
(B) The aggregate amount to be collected shall not exceed the
reasonable costs, as determined by an independent audit paid for by
the airport, to finance, design, and construct those facilities.
Copies of the audit shall be provided to the Assembly and Senate
Committees on Judiciary and Committees on Transportation. In the
case of a transportation system, the audit shall also consider the
reasonable costs of providing the transit system or busing network.
At any airport, the fees designated as a Customer Facility Charge may
not be used to pay for terminal expansion, gate expansion, runway
expansion, changes in hours of operation, or changes in the number of
flights arriving or departing from the airport.
(C) The authorization given pursuant to this section for an
airport to impose a customer facility charge shall become inoperative
when the bonds used for financing are paid.
(4) "Damage waiver" means a rental company's agreement not to hold
a renter liable for all or any portion of any damage or loss related
to the rented vehicle, any loss of use of the rented vehicle, or any
storage, impound, towing, or administrative charges.
(5) "Estimated time for replacement" means the number of hours of
labor, or fraction thereof, needed to replace damaged vehicle parts
as set forth in collision damage estimating guides generally used in
the vehicle repair business and commonly known as "crash books."
(6) "Estimated time for repair" means a good faith estimate of the
reasonable number of hours of labor, or fraction thereof, needed to
repair damaged vehicle parts.
(7) "Passenger vehicle" means a passenger vehicle as defined in
Section 465 of the Vehicle Code.
(b) Except as limited by subdivision (c), a rental company and a
renter may agree that the renter will be responsible for no more than
all of the following:
(1) Physical or mechanical damage to the rented vehicle up to its
fair market value, as determined in the customary market for the sale
of that vehicle, resulting from collision regardless of the cause of
the damage.
(2) Loss due to theft of the rented vehicle up to its fair market
value, as determined in the customary market for the sale of that
vehicle, provided that the rental company establishes by clear and
convincing evidence that the renter or the authorized driver failed
to exercise ordinary care while in possession of the vehicle. In
addition, the renter shall be presumed to have no liability for any
loss due to theft if (A) an authorized driver has possession of the
ignition key furnished by the rental company or an authorized driver
establishes that the ignition key furnished by the rental company was
not in the vehicle at the time of the theft, and (B) an authorized
driver files an official report of the theft with the police or other
law enforcement agency within 24 hours of learning of the theft and
reasonably cooperates with the rental company and the police or other
law enforcement agency in providing information concerning the
theft. The presumption set forth in this paragraph is a presumption
affecting the burden of proof which the rental company may rebut by
establishing that an authorized driver committed, or aided and
abetted the commission of, the theft.
(3) Physical damage to the rented vehicle up to its fair market
value, as determined in the customary market for the sale of that
vehicle, resulting from vandalism occurring after, or in connection
with, the theft of the rented vehicle; however, the renter shall have
no liability for any damage due to vandalism if the renter would
have no liability for theft pursuant to paragraph (2).
(4) Physical damage to the rented vehicle up to a total of five
hundred dollars ($500) resulting from vandalism unrelated to the
theft of the rented vehicle.
(5) Actual charges for towing, storage, and impound fees paid by
the rental company if the renter is liable for damage or loss.
(6) An administrative charge which shall include the cost of
appraisal and all other costs and expenses incident to the damage,
loss, repair, or replacement of the rented vehicle.
(c) The total amount of the renter's liability to the rental
company resulting from damage to the rented vehicle shall not exceed
the sum of the following:
(1) The estimated cost of parts which the rental company would
have to pay to replace damaged vehicle parts. All discounts and
price reductions or adjustments that are or will be received by the
rental company shall be subtracted from the estimate to the extent
not already incorporated in the estimate or otherwise promptly
credited or refunded to the renter.
(2) The estimated cost of labor to replace damaged vehicle parts
which shall not exceed the product of (A) the rate for labor usually
paid by the rental company to replace vehicle parts of the type that
were damaged and (B) the estimated time for replacement. All
discounts and price reductions or adjustments that are or will be
received by the rental company shall be subtracted from the estimate
to the extent not already incorporated in the estimate or otherwise
promptly credited or refunded to the renter.
(3) (A) The estimated cost of labor to repair damaged vehicle
parts which shall not exceed the lesser of the following:
(i) The product of the rate for labor usually paid by the rental
company to repair vehicle parts of the type that were damaged and the
estimated time for repair.
(ii) The sum of the estimated labor and parts costs determined
under paragraphs (1) and (2) to replace the same vehicle parts.
(B) All discounts and price reductions or adjustments that are or
will be received by the rental company shall be subtracted from the
estimate to the extent not already incorporated in the estimate or
otherwise promptly credited or refunded to the renter.
(4) For the purpose of converting the estimated time for repair
into the same units of time in which the rental rate is expressed, a
day shall be deemed to consist of eight hours.
(5) Actual charges for towing, storage, and impound fees paid by
the rental company.
(6) The administrative charge described in paragraph (6) of
subdivision (b) shall not exceed (A) fifty dollars ($50) if the total
estimated cost for parts and labor is more than one hundred dollars
($100) up to and including five hundred dollars ($500), (B) one
hundred dollars ($100) if the total estimated cost for parts and
labor exceeds five hundred dollars ($500) up to and including one
thousand five hundred dollars ($1,500), and (C) one hundred fifty
dollars ($150) if the total estimated cost for parts and labor
exceeds one thousand five hundred dollars ($1,500). No
administrative charge shall be imposed if the total estimated cost of
parts and labor is one hundred dollars ($100) or less.
(d) (1) The total amount of an authorized driver's liability to
the rental company, if any, for damage occurring during the
authorized driver's operation of the rented vehicle shall not exceed
the amount of the renter's liability under subdivision (c).
(2) A rental company shall not recover from the renter or other
authorized driver an amount exceeding the renter's liability under
subdivision (c).
(3) A claim against a renter resulting from damage or loss,
excluding loss of use, to a rental vehicle shall be reasonably and
rationally related to the actual loss incurred. A rental company
shall mitigate damages where possible and may not assert or collect
any claim for physical damage which exceeds the actual costs of the
repairs performed or the estimated cost of repairs, if the rental
company chooses not to repair the vehicle, including all discounts
and price reductions. However, if the vehicle is a total loss
vehicle, the claim shall not exceed the total loss vehicle value
established in accordance with procedures that are customarily used
by insurance companies when paying claims on total loss vehicles,
less the proceeds from salvaging the vehicle, if those proceeds are
retained by the rental company.
(4) If insurance coverage exists under the renter's applicable
personal or business insurance policy and the coverage is confirmed
during regular business hours, the renter may require that the rental
company submit any claims to the renter's applicable personal or
business insurance carrier. The rental company shall not make any
written or oral representations that it will not present claims or
negotiate with the renter's insurance carrier. For purposes of this
paragraph, confirmation of coverage includes telephone confirmation
from insurance company representatives during regular business hours.
Upon request of the renter and after confirmation of coverage, the
amount of claim shall be resolved between the insurance carrier and
the rental company. The renter shall remain responsible for payment
to the rental car company for any loss sustained that the renter's
applicable personal or business insurance policy does not cover.
(5) A rental company shall not recover from the renter or other
authorized driver for any item described in subdivision (b) to the
extent the rental company obtains recovery from any other person.
(6) This section applies only to the maximum liability of a renter
or other authorized driver to the rental company resulting from
damage to the rented vehicle and not to the liability of any other
person.
(e) (1) Except as provided in subdivision (f), every damage waiver
shall provide or, if not expressly stated in writing, shall be
deemed to provide that the renter has no liability for any damage,
loss, loss of use, or any cost or expense incident thereto.
(2) Except as provided in subdivision (f), every limitation,
exception, or exclusion to any damage waiver is void and
unenforceable.
(f) A rental company may provide in the rental contract that a
damage waiver does not apply under any of the following
circumstances:
(1) Damage or loss results from an authorized driver's (A)
intentional, willful, wanton, or reckless conduct, (B) operation of
the vehicle under the influence of drugs or alcohol in violation of
Section 23152 of the Vehicle Code, (C) towing or pushing anything, or
(D) operation of the vehicle on an unpaved road if the damage or
loss is a direct result of the road or driving conditions.
(2) Damage or loss occurs while the vehicle is (A) used for
commercial hire, (B) used in connection with conduct that could be
properly charged as a felony, (C) involved in a speed test or contest
or in driver training activity, (D) operated by a person other than
an authorized driver, or (E) operated outside of the United States.
(3) Any authorized driver who has (A) provided fraudulent
information to the rental company, or (B) provided false information
and the rental company would not have rented the vehicle if it had
instead received true information.
(g) (1) A rental company which offers or provides a damage waiver
for any consideration in addition to the rental rate shall clearly
and conspicuously disclose the following information in the rental
contract or holder in which the contract is placed and, also, in
signs posted at the place, such as the counter, where the renter
signs the rental contract: (A) the nature of the renter's liability,
e.g., liability for all collision damage regardless of cause, (B)
the extent of the renter's liability, e.g., liability for damage or
loss up to a specified amount, (C) the renter's personal insurance
policy or the credit card used to pay for the car rental transaction
may provide coverage for all or a portion of the renter's potential
liability, (D) the renter should consult with his or her insurer to
determine the scope of insurance coverage, including the amount of
the deductible, if any, for which the renter is obligated, (E) the
renter may purchase an optional damage waiver to cover all liability,
subject to whatever exceptions the rental company expressly lists
that are permitted under subdivision (f), and (F) the range of
charges for the damage waiver.
(2) In addition to the requirements of paragraph (1), a rental
company that offers or provides damage waiver shall, on that part of
the contract where the renter indicates his or her acceptance or
declination of the damage waiver, indicate that the purchase of the
damage waiver is optional.
(3) The following is an example, for purposes of illustration and
not limitation, of a notice fulfilling the requirements of paragraph
(1) for a rental company that imposes liability on the renter for
collision damage to the full value of the vehicle:
NOTICE ABOUT YOUR FINANCIAL RESPONSIBILITY AND OPTIONAL DAMAGE
WAIVER
You are responsible for all collision damage to the rented vehicle
even if someone else caused it or the cause is unknown. You are
responsible for the cost of repair up to the value of the vehicle,
and towing, storage, and impound fees.
Your own insurance, or the issuer of the credit card you use to
pay for the car rental transaction, may cover all or part of your
financial responsibility for the rented vehicle. You should check
with your insurance company, or credit car issuer, to find out about
your coverage and the amount of the deductible, if any, for which you
may be liable.
Further, if you use a credit card that provides coverage for your
potential liability, you should check with the issuer to determine if
you must first exhaust the coverage limits of your own insurance
before the credit card coverage applies.
The rental company will not hold you responsible if you buy a
damage waiver. But a damage waiver will not protect you if (list
exceptions).
(A) When the above notice is printed in the contract or
contractholder, the following shall be printed immediately following
the notice:
"The cost of an optional damage waiver is $____ for every (day or
week)."
(B) When the above notice appears on a sign, the following shall
appear immediately adjacent to the notice:
"The cost of an optional damage waiver is $____ to $____ for every
(day or week), depending upon the vehicle rented."
(h) Notwithstanding any other provision of law, a rental company
may sell a damage waiver subject to the following rate limitations
for each full or partial 24-hour rental day for the damage waiver.
(1) For rental vehicles that the rental company designates as an
"economy car," "subcompact car," "compact car," or any other term
having similar meaning when offered for rental, or any other vehicle
having a manufacturer's suggested retail price of nineteen thousand
dollars ($19,000) or less, the rate may not exceed nine dollars ($9).
(2) For rental vehicles that have a manufacturer's suggested
retail price from nineteen thousand one dollars ($19,001) to
thirty-four thousand nine hundred ninety-nine dollars ($34,999),
inclusive, and that is also either a vehicle of the next year's model
year or not older than the previous year's model year, the rate may
not exceed fifteen dollars ($15). For those rental vehicles older
than the previous year's model year, the rate may not exceed nine
dollars ($9).
(i) On or after January 1, 2003, the manufacturer's suggested
retail prices described in subdivision (h) shall be adjusted annually
to reflect changes from the previous year in the Consumer Price
Index. For the purposes of this section, "Consumer Price Index"
means the United States Consumer Price Index for All Urban Consumers,
for all items.
(j) A rental company which disseminates in this state an
advertisement containing a rental rate shall include in that
advertisement a clearly readable statement of the charge for damage
waiver and a statement that damage waiver is optional.
(k) (1) A rental company shall not require the purchase of a
damage waiver, optional insurance, or any other optional good or
service.
(2) A rental company shall not engage in any unfair, deceptive, or
coercive conduct to induce a renter to purchase damage waiver,
optional insurance, or any other optional good or service, including
conduct such as, but not limited to, refusing to honor the renter's
reservation, limiting the availability of vehicles, requiring a
deposit, or debiting or blocking the renter's credit card account for
a sum equivalent to a deposit if the renter declines to purchase
damage waiver, optional insurance, or any other optional good or
service.
(l) (1) In the absence of express permission granted by the renter
subsequent to damage to, or loss of, the vehicle, a rental company
shall not seek to recover any portion of any claim arising out of
damage to, or loss of, the rented vehicle by processing a credit card
charge or causing any debit or block to be placed on the renter's
credit card account.
(2) A rental company shall not engage in any unfair, deceptive, or
coercive tactics in attempting to recover or in recovering on any
claim arising out of damage to, or loss of, the rented vehicle.
(m) (1) A customer facility charge may be collected by a rental
company under the following circumstances:
(A) Collection of the fee by the rental company is required by an
airport operated by a city, a county, a city and county, a joint
powers authority, or a special district.
(B) The fee is calculated on a per-contract basis.
(C) The fee is a user fee, not a tax imposed upon real property or
an incidence of property ownership under Article XIII D of the
California Constitution.
(D) Except as otherwise provided in subparagraph (E), the fee
shall be ten dollars ($10) per contract.
(E) If the fee imposed by the airport is for both a consolidated
rental car facility and a common use transportation system, the fee
collected from customers of on-airport rental car companies shall be
ten dollars ($10), but the fee imposed on customers of off-airport
rental car companies who are transported on the common use
transportation system is proportionate to the costs of the common use
transportation system only. The fee is uniformly applied to each
class of on-airport or off-airport customers, provided the airport
requires off-airport customers to use the common use transportation
system.
(F) Revenues collected from the fee do not exceed the reasonable
costs of financing, designing, constructing, or operating the
facility or services and may not be used for any other purpose.
(G) The fee is separately identified on the rental agreement.
(H) This paragraph does not apply to airports whose fees are
governed by Section 1936.5 of the Civil Code, Section 50474.1 of the
Government Code, or Section 57.5 of the San Diego Unified Port
District Act.
(2) Notwithstanding any other provision of law, including, but not
limited to, Part 1 (commencing with Section 6001) to Part 1.7
(commencing with Section 7280), inclusive, of Division 2 of the
Revenue and Taxation Code, the fees collected pursuant to this
section, or any other law whereby a local agency operating an airport
requires a rental car company to collect a facility financing fee
from its customers, shall not be subject to sales, use, or
transaction taxes.
(n) (1) A rental company shall only advertise, quote, and charge a
rental rate that includes the entire amount except taxes, a customer
facility charge, if any, and a mileage charge, if any, which a
renter must pay to hire or lease the vehicle for the period of time
to which the rental rate applies. A rental company shall not charge
in addition to the rental rate, taxes, a customer facility charge, if
any, and a mileage charge, if any, any fee which must be paid by the
renter as a condition of hiring or leasing the vehicle, such as, but
not limited to, required fuel or airport surcharges other than
customer facility charges, nor any fee for transporting the renter to
the location where the rented vehicle will be delivered to the
renter.
(2) In addition to the rental rate, taxes, customer facility
charges, if any, and mileage charges, if any, a rental company may
charge for an item or service provided in connection with a
particular rental transaction if the renter could have avoided
incurring the charge by choosing not to obtain or utilize the
optional item or service. Items and services for which the rental
company may impose an additional charge, include, but are not limited
to, optional insurance and accessories requested by the renter,
service charges incident to
the renter's optional return of the vehicle to a location other
than the location where the vehicle was hired or leased, and charges
for refueling the vehicle at the conclusion of the rental transaction
in the event the renter did not return the vehicle with as much fuel
as was in the fuel tank at the beginning of the rental. A rental
company also may impose an additional charge based on reasonable age
criteria established by the rental company.
(3) A rental company shall not charge any fee for authorized
drivers in addition to the rental charge for an individual renter.
(4) If a rental company states a rental rate in print
advertisement or in a telephonic, in-person, or computer-transmitted
quotation, the rental company shall clearly disclose in that
advertisement or quotation the terms of any mileage conditions
relating to the advertised or quoted rental rate, including, but not
limited to, to the extent applicable, the amount of mileage and gas
charges, the number of miles for which no charges will be imposed,
and a description of geographic driving limitations within the United
States and Canada.
(5) (A) When a rental rate is stated in an advertisement,
quotation, or reservation in connection with a car rental at an
airport where a customer facility charge is imposed, the rental
company shall clearly disclose the existence and amount of the
customer facility charge. For the purposes of this subparagraph,
advertisements include radio, television, other electronic media, and
print advertisements. For purposes of this subparagraph, quotations
and reservations include those that are telephonic, in-person, and
computer-transmitted. If the rate advertisement is intended to
include transactions at more than one airport imposing a customer
facility charge, a range of fees may be stated in the advertisement.
However, all rate advertisements that include car rentals at airport
destinations shall clearly and conspicuously include a toll-free
telephone number whereby a customer can be told the specific amount
of the customer facility charge to which the customer will be
obligated.
(B) If any person or entity other than a rental car company,
including a passenger carrier or a seller of travel services,
advertises or quotes a rate for a car rental at an airport where a
customer facility charge is imposed, that person or entity shall,
provided they are provided with information about the existence and
amount of the fee, to the extent not specifically prohibited by
federal law, clearly disclose the existence and amount of the fee in
any telephonic, in-person, or computer-transmitted quotation at the
time of making an initial quotation of a rental rate and at the time
of making a reservation of a rental car. If a rental car company
provides the person or entity with rate and customer facility charge
information, the rental car company shall not be responsible for the
failure of that person or entity to comply with this subparagraph
when quoting or confirming a rate to a third person or entity.
(6) If a rental company delivers a vehicle to a renter at a
location other than the location where the rental company normally
carries on its business, the rental company shall not charge the
renter any amount for the rental for the period before the delivery
of the vehicle. If a rental company picks up a rented vehicle from a
renter at a location other than the location where the rental
company normally carries on its business, the rental company shall
not charge the renter any amount for the rental for the period after
the renter notifies the rental company to pick up the vehicle.
(o) A renter may bring an action against a rental company for the
recovery of damages and appropriate equitable relief for a violation
of this section. The prevailing party shall be entitled to recover
reasonable attorney's fees and costs.
(p) A rental company that brings an action against a renter for
loss due to theft of the vehicle shall bring the action in the county
in which the renter resides or if the renter is not a resident of
this state in the jurisdiction in which the renter resides.
(q) Any waiver of any of the provisions of this section shall be
void and unenforceable as contrary to public policy.
(r) This section shall become operative on January 1, 2002.
SEC. 44. Section 1940.7.5 of the Civil Code is amended to read:
1940.7.5. (a) For purposes of this section, the following
definitions shall apply:
(1) "Illegal controlled substance" means a drug, substance, or
immediate precursor listed in any schedule contained in Section
11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code,
or an emission or waste material resulting from the unlawful
manufacture or attempt to manufacture an illegal controlled
substance. An "illegal controlled substance" does not include, for
purposes of this section, marijuana.
(2) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing of an illegal controlled substance in a
structure or into the environment.
(b) (1) The owner of a residential dwelling unit who knows, as
provided in paragraph (2), that any release of an illegal controlled
substance has come to be located on or beneath that dwelling unit
shall give written notice to the prospective tenant prior to the
execution of a rental agreement by providing to a prospective tenant
a copy of any notice received from law enforcement or any other
entity, such as the Department of Toxic Substances Control, the
county health department, the local environmental health officer, or
a designee, advising the owner of that release on the property.
(2) For purposes of this subdivision, the owner's knowledge of the
condition is established by the receipt of a notice specified in
paragraph (1) or by actual knowledge of the condition from a source
independent of the notice.
(3) If the owner delivers the disclosure information required by
paragraph (1), the delivery shall be deemed legally adequate for
purposes of informing the prospective tenant of that condition, and
the owner is not required to provide any additional disclosure of
that information.
(4) Failure of the owner to provide written notice to a
prospective tenant when required by this subdivision shall subject
the owner to actual damages and any other remedies provided by law.
In addition, if the owner has actual knowledge of the presence of any
release of an illegal controlled substance and knowingly and
willfully fails to provide written notice to the renter, as required
by this subdivision, the owner is liable for a civil penalty not to
exceed five thousand dollars ($5,000) for each separate violation, in
addition to any other damages provided by law.
(c) This section shall remain in effect only until January 1,
2004, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2004, deletes or extends
that date.
SEC. 45. Section 3110.5 of the Civil Code is amended to read:
3110.5. (a) (1) This section shall apply only to an owner who
contracts for a work of improvement for construction, alteration,
addition to, or repair upon, property, whether the contracting owner
is the owner of a fee simple absolute interest in the property or the
owner of any lesser interest in the property. For purposes of this
section, a lessee of real property shall be considered to be the
owner of a fee simple absolute interest in that real property if and
only if: (A) the initial term of the lease is at least 35 years and
(B) the lease covers one or more lawful parcels under the Subdivision
Map Act (Division 2 (commencing with Section 66410) of Title 7 of
the Government Code) and any applicable local ordinances adopted
pursuant thereto, in their entirety, including, but not limited to,
parcels approved pursuant to certificate of compliance proceedings.
For purposes of this section, the owner of a fee simple absolute
interest shall not be deemed to be the owner of less than a fee
simple absolute interest by reason of any mortgages, deeds of trust,
ground leases, or other liens or encumbrances or rights to occupancy
that may encumber the fee simple absolute interest. If the owner
contracting for the work of improvement is an owner of an interest in
the property which is less than a fee simple absolute interest, this
section does not require the owner of the fee simple absolute
interest who does not contract for the work of improvement to provide
any security pursuant to this section or to comply with any of the
other obligations of an owner under this section. If the owner
contracting for the work of improvement is an owner of the fee simple
absolute interest in the property, this section does not require the
owner of an interest in the property which is less than a fee simple
absolute interest who does not contract for the work of improvement
to provide any security pursuant to this section or to comply with
any of the other obligations of an owner under this section.
(2) An owner contracting for a work of improvement is subject to
this section only if one of the following conditions is satisfied:
(A) The owner contracting for the work of improvement is the owner
of a fee simple absolute interest in the property upon which the
work of improvement is to be made, and the value of the contract for
the work of improvement is more than five million dollars
($5,000,000).
(B) The owner contracting for the work of improvement is the owner
of an interest which is less than a fee simple absolute interest,
including a leasehold interest, in the property upon which the work
of improvement is to be made, and the value of the contract for the
work of improvement is more than one million dollars ($1,000,000).
(b) If an owner of property, whether an owner of a fee simple
absolute interest or any lesser interest therein, contracts for any
work of improvement for construction, alteration, addition to, or
repair upon, the property, and the contracting owner is subject to
the requirements of this section, as determined by subdivision (a),
the contracting owner shall supply to the original contractor, if a
lending institution is providing a construction loan, a copy
certified by the county recorder of the recorded construction
mortgage or deed of trust that shall disclose the amount of the
construction loan. In addition, if the contracting owner is not the
majority owner of the original contractor, the contracting owner
shall provide security for the contracting owner's payment
obligations under the construction contract. The security shall be
used only when the contracting owner defaults on his or her
contractual obligations to the original contractor. The security for
the contracting owner's payment obligations under the construction
contract shall be provided by one of the following means:
(1) A payment bond, as defined in Section 3096, in the amount of
either (A) not less than 25 percent of the total amount of any
construction contract that is subject to this section where the
construction contract provides that the work of improvement is
scheduled to be substantially completed within six months following
the commencement thereof, or (B) not less than 15 percent of the
total amount of any other construction contract that is subject to
this section, which payment bond shall be payable upon default by the
contracting owner of any undisputed amount under the contract that
has been due and payable for more than 30 days. The payment bond
shall be from a California admitted surety which is either listed in
the Department of the Treasury's Listing of Approved Sureties
(Department Circular 570) or that has an A.M. Best rating of A or
better and has an underwriting limitation, pursuant to Section 12090
of the Insurance Code, greater than the value of the contract amount
of the bond.
(2) An irrevocable letter of credit from a financial institution,
as defined in Section 5107 of the Financial Code, inuring to the
benefit of the original contractor in the amount of either (A) not
less than 25 percent of the total amount of any construction contract
that is subject to this section where the construction contract
provides that the work of improvement is scheduled to be
substantially completed within six months following the commencement
thereof, or (B) not less than 15 percent of the total amount of any
other construction contract that is subject to this section. The
maturity date of the letter of credit and other terms of the letter
of credit shall be determined by agreement between the contracting
owner, the original contractor, and the issuer of the letter of
credit provided that the contracting owner shall be required to
maintain the letter of credit in effect until the contracting owner
has satisfied all of its payment obligations to the original
contractor.
(3) (A) An escrow account, designated as a "construction security
escrow account," maintained with an escrow agent licensed under the
Escrow Law, as set forth in Division 6 (commencing with Section
17000) of the Financial Code, or with any person exempt from the
Escrow Law pursuant to paragraph (1) or (3) of subdivision (a) of
Section 17006 of the Financial Code, which construction security
escrow account shall be located in California and in which the
contracting owner shall deposit funds in the amount provided in
subparagraph (B); provided that the original contractor shall not be
obligated to accept a construction security escrow account as
security unless the contracting owner establishes to the reasonable
satisfaction of the original contractor (which may be established by
a written opinion of legal counsel for the contracting owner), that
the contracting owner has granted the original contractor a
perfected, first priority security interest in the construction
security escrow account and all funds deposited by the contracting
owner therein and the proceeds thereof. The funds on deposit in the
construction security escrow account shall be the sole property of
the contracting owner, subject to the security interest in favor of
the original contractor. The escrowholder shall be instructed by the
contracting owner and the original contractor to hold the funds on
deposit in the construction security escrow account for the purpose
of perfecting the original contractor's security interest therein and
to disburse those funds only upon the joint authorization of the
contracting owner and the original contractor, or in accordance with
an order of any court which is binding on both the owner and the
original contractor. This section does not require any construction
lender to agree to deposit proceeds of a construction loan in a
construction security escrow account.
(B) Prior to commencement of the work under the construction
contract, the contracting owner shall make an initial deposit to the
construction security escrow account in the amount of either (i) not
less than 25 percent of the total amount of any construction contract
which is subject to this section where the construction contract
provides that the work of improvement is scheduled to be
substantially completed within six months following the commencement
thereof, or (ii) not less than 15 percent of the total amount of any
other construction contract which is subject to this section. In
addition, if the construction contract provides for a so-called
retainage or retention to be withheld from periodic payments to the
original contractor, the contracting owner shall deposit all amounts
withheld as retainage or retention in the construction security
escrow account at the same time the contracting owner makes the
corresponding payment to the original contractor from which the
retainage or retention is withheld provided, however, that in no
event shall the amount required to be maintained on deposit in the
construction security escrow account exceed the total amount of
future payments remaining to be due the original contractor under its
construction contract (as the same may be adjusted by agreement
between the contracting owner and the original contractor). If the
amount of funds on deposit in the construction security escrow
account equals or exceeds the total amount of future payments
remaining to be due the original contractor, the contracting owner
and the original contractor shall authorize the disbursement to the
original contractor of funds on deposit in the construction security
escrow account to pay progress payments then due the original
contractor under its construction contract (in whole or in part), but
in no event shall either party be obligated to authorize the
disbursement of any funds that would cause the amount remaining on
deposit in the construction security escrow account following that
disbursement to be less than the total amount of future payments
remaining to be due the original contractor after application of any
funds disbursed to the original contractor. The contracting owner
and the original contractor shall authorize the disbursement to the
contracting owner of any funds remaining on deposit in the
construction security escrow account after the original contractor
has been paid all amounts due under its construction contract. The
contracting owner and the original contractor shall authorize the
disbursement of funds on deposit in the construction security escrow
account in accordance with the order of any court which is binding on
both of them. The contracting owner and the original contractor may
agree in the construction contract upon additional conditions for
the disbursement of funds on deposit in the construction security
escrow account provided that the conditions shall not cause the
amount remaining on deposit in the construction security escrow
account to be less than the amount required pursuant to this
subparagraph.
(c) For the purposes of subdivision (b), if the price under the
construction contract is not a fixed price, the amount of security to
be provided shall be determined with reference to the guaranteed
maximum price, if there is one, or if there is no guaranteed maximum
price, the amount of security shall be determined with reference to
the contracting owner's and original contractor's good faith estimate
as to the total cost anticipated to be incurred under the
construction contract. If any contracting owner that is required to
provide security under this section with respect to a construction
contract fails to provide that security or fails to maintain that
security as required, the original contractor may make written demand
on the contracting owner to do so, and if the contracting owner
fails to provide and maintain that security within 10 days after the
original contractor makes written demand on the owner, the original
contractor may suspend work until the required security is provided
and maintained in accordance with this section.
(d) This section does not affect provisions in this code providing
for mechanics' liens, stop notices, bond remedies, or prompt payment
rights of a subcontractor, including the original contractor's
payment responsibilities as set forth in Section 7108.5 of the
Business and Professions Code and Section 10262 of the Public
Contract Code.
(e) This section does not apply to the construction of
single-family residences, including single-family residences located
within a subdivision, and any associated fixed works that require the
services of a general engineering contractor, as defined in Section
7056 of the Business and Professions Code, any public works projects,
or housing developments eligible for a density bonus pursuant to
Section 65915 of the Government Code. As used in this section, the
term "single-family residence" means a real property improvement used
or intended to be used as a dwelling unit for one family.
(f) This section does not apply to either of the following:
(1) Any contract where the contracting owner is either a qualified
publicly traded company or a wholly owned subsidiary of a qualified
publicly traded company, provided that the obligations of the
subsidiary under the construction contract are guaranteed by the
parent which is a qualified publicly traded company. As used in this
section, the term "qualified publicly traded company" means any
company having a class of equity securities listed for trading on the
New York Stock Exchange, the American Stock Exchange or the NASDAQ
stock market and the nonsubordinated debt securities thereof which
are rated as "investment grade" by either Fitch ICBA, Inc., Moody's
Investor Services, Inc., Standard & Poor's Ratings Services or a
similar statistical rating organization which is nationally
recognized for rating the creditworthiness of publicly traded
companies. If at any time prior to final payment of all sums due
under the construction contract the nonsubordinated debt securities
of the qualified publicly traded company are downgraded to below
"investment grade" by one of the referenced rating agencies, the
contracting owner of the property will no longer be exempt from the
provisions of this section.
(2) Any contract where the contracting owner is either a qualified
private company or a wholly owned subsidiary of a qualified private
company, provided that the obligations of the subsidiary under the
construction contract are guaranteed by the parent which is a
qualified private company. As used in this section, the term
"qualified private company" means any company that has no equity
securities listed for trading on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ stock market, and that has a
net worth determined in accordance with generally accepted accounting
principles in excess of fifty million dollars ($50,000,000). If at
any time prior to final payment of all sums due under the
construction contract the net worth of the qualified private company
is reduced below the level referenced in this section, the owner of
the property will no longer be exempt from the provisions of this
section.
(g) It is against public policy to waive the provisions of this
section in any contract for any private work of improvement to which
this section applies.
SEC. 46. Section 116.950 of the Code of Civil Procedure is amended
to read:
116.950. (a) This section shall become operative only if the
Department of Consumer Affairs determines that sufficient private or
public funds are available in addition to the funds available in the
department's current budget to cover the costs of implementing this
section.
(b) There shall be established an advisory committee, constituted
as set forth in this section, to study small claims practice and
procedure, with particular attention given to the improvement of
procedures for the enforcement of judgments.
(c) The members of the advisory committee shall serve without
compensation, but shall be reimbursed for expenses actually and
necessarily incurred by them in the performance of their duties.
(d) The advisory committee shall be composed as follows:
(1) The Attorney General or a representative.
(2) Two consumer representatives from consumer groups or agencies,
appointed by the Secretary of the State and Consumer Services
Agency.
(3) One representative appointed by the Speaker of the Assembly
and one representative appointed by the President pro Tempore of the
Senate.
(4) Two representatives appointed by the Board of Governors of the
State Bar.
(5) Two representatives of the business community, appointed by
the Secretary of Technology, Trade, and Commerce.
(6) Six judicial officers who have extensive experience presiding
in small claims court, appointed by the Judicial Council. Judicial
officers appointed under this subdivision may include judicial
officers of the superior court, judges of the appellate courts,
retired judicial officers, and temporary judges.
(7) One representative appointed by the Governor.
(8) Two clerks of the court appointed by the Judicial Council.
(e) Staff assistance to the advisory committee shall be provided
by the Department of Consumer Affairs, with the assistance of the
Judicial Council, as needed.
SEC. 47. Section 488.455 of the Code of Civil Procedure is amended
to read:
488.455. (a) Subject to Section 488.465, to attach a deposit
account, the levying officer shall personally serve a copy of the
writ of attachment and a notice of attachment on the financial
institution with which the deposit account is maintained. The
attachment lien reaches only amounts in the deposit account at the
time of service on the financial institution, including any item in
the deposit account that is in the process of being collected, unless
the item is returned unpaid to the financial institution.
(b) At the time of levy or promptly thereafter, the levying
officer shall serve a copy of the writ of attachment and a notice of
attachment on any third person in whose name the deposit account
stands.
(c) During the time the attachment lien is in effect, the
financial institution shall not honor a check or other order for the
payment of money drawn against, and shall not pay a withdrawal from,
the deposit account that would reduce the deposit account to an
amount that is less than the amount attached. For the purposes of
this subdivision, in determining the amount of the deposit account,
the financial institution shall not include the amount of items
deposited to the credit of the deposit account that are in the
process of being collected.
(d) During the time the attachment lien is in effect, the
financial institution is not liable to any person for any of the
following:
(1) Performance of the duties of a garnishee under the attachment.
(2) Nonpayment of a check or other order for the payment of money
drawn or presented against the deposit account if the nonpayment is
pursuant to the requirements of subdivision (c).
(3) Refusal to pay a withdrawal from the deposit account if the
refusal is pursuant to the requirements of subdivision (c).
(e) When the amount attached pursuant to this section is paid to
the levying officer, the attachment lien on the attached deposit
account terminates.
(f) For the purposes of this section, neither of the following is
a third person in whose name the deposit account stands:
(1) A person who is only a person named as the beneficiary of a
Totten trust account.
(2) A person who is only a payee designated in a pay-on-death
provision in an account pursuant to Section 18318.5 of the Financial
Code or Section 5140 of the Probate Code, or other similar provision.
(g) When a deposit account has been
attached, as an alternative to paying the amount of the deposit
account that is attached to the levying officer as required by
Section 488.600, the financial institution may continue to hold the
deposit account until the deposit account is levied upon after
judgment in the action or is earlier released, the deposit account to
be held in one of the following manners:
(1) If the entire deposit account is attached, the financial
institution may hold the deposit account on the terms applicable
before the attachment, subject to the requirements of subdivision
(c).
(2) If less than the entire deposit account is attached:
(A) With the consent of the defendant, and any third person in
whose name the deposit account stands, the financial institution may
hold in the deposit account on the same terms an amount larger than
the attached amount as necessary to avoid a penalty or a reduction of
the rate of interest.
(B) If the defendant, and any third person in whose name the
deposit account stands, do not consent as provided in subparagraph
(A), the financial institution may hold the attached amount on the
same terms affecting the deposit account before the attachment,
subject to the requirements of subdivision (c).
(3) The financial institution may hold the attached deposit
account in any other manner agreed upon by the plaintiff, the
defendant, and any third person in whose name the deposit account
stands.
(h) Subdivision (g) does not prevent a financial institution that
is holding an attached deposit account as provided in subdivision (g)
from paying the attached amount to the levying officer before the
time the financial institution otherwise is required to pay the
amount under subdivision (g).
SEC. 48. Section 700.140 of the Code of Civil Procedure is amended
to read:
700.140. (a) Subject to Section 700.160, to levy upon a deposit
account, the levying officer shall personally serve a copy of the
writ of execution and a notice of levy on the financial institution
with which the deposit account is maintained. The execution lien
reaches only amounts in the deposit account at the time of service on
the financial institution, including any item in the deposit account
that is in the process of being collected, unless the item is
returned unpaid to the financial institution.
(b) At the time of levy or promptly thereafter, the levying
officer shall serve a copy of the writ of execution and a notice of
levy on any third person in whose name the deposit account stands.
Service shall be made personally or by mail.
(c) During the time the execution lien is in effect, the financial
institution shall not honor a check or other order for the payment
of money drawn against, and shall not pay a withdrawal from, the
deposit account that would reduce the deposit account to an amount
that is less than the amount levied upon. For the purposes of this
subdivision, in determining the amount of the deposit account, the
financial institution shall not include the amount of items deposited
to the credit of the deposit account that are in the process of
being collected.
(d) During the time the execution lien is in effect, the financial
institution is not liable to any person for any of the following:
(1) Performance of the duties of a garnishee under the levy.
(2) Nonpayment of a check or other order for the payment of money
drawn or presented against the deposit account if the nonpayment is
pursuant to the requirements of subdivision (c).
(3) Refusal to pay a withdrawal from the deposit account if the
refusal is pursuant to the requirements of subdivision (c).
(e) When the amount levied upon pursuant to this section is paid
to the levying officer, the execution lien on the deposit account
levied upon terminates.
(f) For the purposes of this section, neither of the following is
a third person in whose name the deposit account stands:
(1) A person who is only a person named as the beneficiary of a
Totten trust account.
(2) A person who is only a payee designated in a pay-on-death
provision in an account pursuant to Section 18318.5 of the Financial
Code or Section 5140 of the Probate Code, or other similar provision.
SEC. 49. Section 912 of the Code of Civil Procedure is amended to
read:
912. Upon final determination of an appeal by the reviewing
court, the clerk of the court shall remit to the trial court a
certified copy of the judgment or order of the reviewing court and of
its opinion, if any. The clerk of the trial court shall file the
certified copy of the judgment and opinion of the reviewing court,
shall attach that copy to the judgment roll if the appeal was from a
judgment, and shall enter a note of the judgment of the reviewing
court stating whether the judgment or order appealed from has been
affirmed, reversed or modified, in the margin of the original entry
of the judgment or order, and also in the register of actions.
SEC. 49.5. Section 1162 of the Code of Civil Procedure is amended
to read:
1162. The notices required by Sections 1161 and 1161a may be
served, either:
1. By delivering a copy to the tenant personally; or,
2. If he or she is absent from his or her place of residence, and
from his or her usual place of business, by leaving a copy with some
person of suitable age and discretion at either place, and sending a
copy through the mail addressed to the tenant at his or her place of
residence; or,
3. If such place of residence and business can not be ascertained,
or a person of suitable age or discretion there can not be found,
then by affixing a copy in a conspicuous place on the property, and
also delivering a copy to a person there residing, if such person can
be found; and also sending a copy through the mail addressed to the
tenant at the place where the property is situated. Service upon a
subtenant may be made in the same manner.
SEC. 50. Section 1174.3 of the Code of Civil Procedure is amended
to read:
1174.3. (a) Unless a prejudgment claim of right to possession has
been served upon occupants in accordance with Section 415.46, any
occupant not named in the judgment for possession who occupied the
premises on the date of the filing of the action may object to
enforcement of the judgment against that occupant by filing a claim
of right to possession as prescribed in this section. A claim of
right to possession may be filed at any time after service or posting
of the writ of possession pursuant to subdivision (a) or (b) of
Section 715.020, up to and including the time at which the levying
officer returns to effect the eviction of those named in the judgment
of possession. Filing the claim of right to possession shall
constitute a general appearance for which a fee shall be collected as
provided in Section 72056 of the Government Code. Section 68511.3
of the Government Code applies to the claim of right to possession.
An occupant or tenant who is named in the action shall not be
required to file a claim of right to possession to protect that
occupant's right to possession of the premises.
(b) The court issuing the writ of possession of real property
shall set a date or dates when the court will hold a hearing to
determine the validity of objections to enforcement of the judgment
specified in subdivision (a). An occupant of the real property for
which the writ is issued may make an objection to eviction to the
levying officer at the office of the levying officer or at the
premises at the time of the eviction.
If a claim of right to possession is completed and presented to
the sheriff, marshal, or other levying officer, the officer shall
forthwith (1) stop the eviction of occupants at the premises, and (2)
provide a receipt or copy of the completed claim of right of
possession to the claimant indicating the date and time the completed
form was received, and (3) deliver the original completed claim of
right to possession to the court issuing the writ of possession of
real property.
(c) A claim of right to possession is effected by any of the
following:
(1) Presenting a completed claim form in person with
identification to the sheriff, marshal, or other levying officer as
prescribed in this section, and delivering to the court within two
court days after its presentation, an amount equal to 15 days' rent
together with the appropriate fee or form for proceeding in forma
pauperis. Upon receipt of a claim of right to possession, the
sheriff, marshal, or other levying officer shall indicate thereon the
date and time of its receipt and forthwith deliver the original to
the issuing court and a receipt or copy of the claim to the claimant
and notify the plaintiff of that fact. Immediately upon receipt of
an amount equal to 15 days' rent and the appropriate fee or form for
proceeding in forma pauperis, the court shall file the claim of right
to possession and serve an endorsed copy with the notice of the
hearing date on the plaintiff and the claimant by first-class mail.
The court issuing the writ of possession shall set and hold a hearing
on the claim not less than five nor more than 15 days after the
claim is filed with the court.
(2) Presenting a completed claim form in person with
identification to the sheriff, marshal, or other levying officer as
prescribed in this section, and delivering to the court within two
court days after its presentation, the appropriate fee or form for
proceeding in forma pauperis without delivering the amount equivalent
to 15 days' rent. In this case, the court shall immediately set a
hearing on the claim to be held on the fifth day after the filing is
completed. The court shall notify the claimant of the hearing date
at the time the claimant completes the filing by delivering to the
court the appropriate fee or form for proceeding in forma pauperis,
and shall notify the plaintiff of the hearing date by first-class
mail. Upon receipt of a claim of right to possession, the sheriff,
marshal, or other levying officer shall indicate thereon the date and
time of its receipt and forthwith deliver the original to the
issuing court and a receipt or copy of the claim to the claimant and
notify the plaintiff of that fact.
(d) At the hearing, the court shall determine whether there is a
valid claim of possession by the claimant who filed the claim, and
the court shall consider all evidence produced at the hearing,
including, but not limited to, the information set forth in the
claim. The court may determine the claim to be valid or invalid
based upon the evidence presented at the hearing. The court shall
determine the claim to be invalid if the court determines that the
claimant is an invitee, licensee, guest, or trespasser. If the court
determines the claim is invalid, the court shall order the return to
the claimant of the amount of the 15 days' rent paid by the
claimant, if that amount was paid pursuant to paragraphs (1) or (3)
of subdivision (c), less a pro rata amount for each day that
enforcement of the judgment was delayed by reason of making the claim
of right to possession, which pro rata amount shall be paid to the
landlord. If the court determines the claim is valid, the amount
equal to 15 days' rent paid by the claimant shall be returned
immediately to the claimant.
(e) If, upon hearing, the court determines that the claim is
valid, then the court shall order further proceedings as follows:
(1) If the unlawful detainer is based upon a curable breach, and
the claimant was not previously served with a proper notice, if any
notice is required, then the required notice may at the plaintiff's
discretion be served on the claimant at the hearing or thereafter.
If the claimant does not cure the breach within the required time,
then a supplemental complaint may be filed and served on the claimant
as defendant if the plaintiff proceeds against the claimant in the
same action. For the purposes of this section only, service of the
required notice, if any notice is required, and of the supplemental
complaint may be made by first-class mail addressed to the claimant
at the subject premises or upon his or her attorney of record and, in
either case, Section 1013 shall otherwise apply. Further
proceedings on the merits of the claimant's continued right to
possession after service of the Summons and Supplemental Complaint as
prescribed by this subdivision shall be conducted pursuant to this
chapter.
(2) In all other cases, the court shall deem the unlawful detainer
Summons and Complaint to be amended on their faces to include the
claimant as defendant, service of the Summons and Complaint, as thus
amended, may at the plaintiff's discretion be made at the hearing or
thereafter, and the claimant thus named and served as a defendant in
the action shall answer or otherwise respond within five days
thereafter.
(f) If a claim is made without delivery to the court of the
appropriate filing fee or a form for proceeding in forma pauperis, as
prescribed in this section, the claim shall be immediately deemed
denied and the court shall so order. Upon the denial of the claim,
the court shall immediately deliver an endorsed copy of the order to
the levying officer and shall serve an endorsed copy of the order on
the plaintiff and claimant by first-class mail.
(g) If the claim of right to possession is denied pursuant to
subdivision (f), or if the claimant fails to appear at the hearing
or, upon hearing, if the court determines that there are no valid
claims, or if the claimant does not prevail at a trial on the merits
of the unlawful detainer action, the court shall order the levying
officer to proceed with enforcement of the original writ of
possession of real property as deemed amended to include the
claimant, which shall be effected within a reasonable time not to
exceed five days. Upon receipt of the court's order, the levying
officer shall enforce the writ of possession of real property against
any occupant or occupants.
(h) The claim of right to possession shall be made on the
following form:
SEC. 51. Section 1206 of the Code of Civil Procedure is amended to
read:
1206. (a) Upon the levy under a writ of attachment or execution
not founded upon a claim for labor, any miner, mechanic, salesman,
servant, clerk, laborer or other person who has performed work or
rendered personal services for the defendant within 90 days prior to
the levy may file a verified statement of the claim with the officer
executing the writ, file a copy with the court that issued the writ,
and give copies, containing his or her address, to the plaintiff and
the defendant, or any attorney, clerk or agent representing them, or
mail copies to them by registered mail at their last known address,
return of which by the post office undelivered shall be deemed a
sufficient service if no better address is available, and that claim,
not exceeding nine hundred dollars ($900), unless disputed, shall be
paid by the officer, immediately upon the expiration of the time for
dispute of the claim as prescribed in Section 1207, from the
proceeds of the levy remaining in the officer's hands at the time of
the filing of the statement or collectible by the officer on the
basis of the writ.
(b) The court issuing the writ shall make a notation in the
register of actions of every preferred labor claim of which it
receives a copy and shall endorse on any writ of execution or
abstract of judgment issued subsequently in the case that it is
issued subject to the rights of a preferred labor claimant or
claimants and giving the names and amounts of all preferred labor
claims of which it has notice. In levying under any writ of
execution the officer making the levy shall include in the amount due
under the execution all preferred labor claims that have been filed
in the action and of which the officer has notice, except any claims
that may have been finally disallowed by the court under this
procedure and of which disallowance the officer has actual notice.
The amount due on preferred labor claims that have not been finally
disallowed by the court shall be considered a part of the sum due
under any writ of attachment or execution in augmentation of that
amount and any person, firm, association, or corporation on whom a
writ of attachment or execution is levied shall immediately pay to
the levying officer the amount of the preferred labor claims, out of
any money belonging to the defendant in the action, before paying the
principal sum called for in the writ.
(c) If any claim is disputed within the time, and in the manner
prescribed in Section 1207, and a copy of the dispute is mailed by
registered mail to the claimant or the claimant's attorney at the
address given in the statement of claim and the registry receipt is
attached to the original of the dispute when it is filed with the
levying officer, or is handed to the claimant or the claimant's
attorney, the claimant, or the claimant's assignee, must within 10
days after the copy is deposited in the mail or is handed to the
claimant or the claimant's attorney, petition the court having
jurisdiction of the action on which the writ is based, for a hearing
before it to determine the claim for priority, or the claim to
priority is barred. If more than one attachment or execution is
involved, the petition shall be filed in the court having
jurisdiction over the senior attachment or execution. The hearing
shall be held within 20 days from the filing of the petition, unless
the court continues it for good cause. Ten days' notice of the
hearing shall be given by the petitioner to the plaintiff, the
defendant, and all parties claiming an interest in the property, or
their attorneys. The notice may be informal and need specify only
the name of the court, the names of the principal parties to the
senior attachment or execution, and the name of the wage claimant or
claimants on whose behalf it is filed but shall specify that the
hearing is for the purpose of determining the claim for priority.
The plaintiff, the defendant, or any other party claiming an interest
may contest the amount or validity of the claim in spite of any
confession of judgment or failure to appear or to contest the claim
on the part of any other person.
(d) There shall be no cost for filing or hearing the petition.
The hearing on the petition shall be informal but all parties
testifying shall be sworn. Any claimant may appear on the claimant's
own behalf at the hearing and may call and examine witnesses to
substantiate his or her claim. An appeal may be taken from a
judgment in a proceeding under this section in the manner provided
for appeals from judgments of the court where the proceeding
occurred, in an action of the same jurisdictional classification.
(e) The officer shall keep, until the determination of the claim
for priority, any amount of the proceeds of the writ necessary to
satisfy the claim. If the claim for priority is allowed, the officer
shall pay the amount due, including the claimant's cost of suit,
from those proceeds, immediately after the order allowing the claim
becomes final.
SEC. 52. Section 1299.3 of the Code of Civil Procedure is amended
to read:
1299.3. As used in this title:
(a) "Employee" means any firefighter or law enforcement officer
represented by an employee organization, as defined in subdivision
(b).
(b) "Employee organization" means any organization recognized by
the employer for the purpose of representing firefighters or law
enforcement officers in matters relating to wages, hours, and other
terms and conditions of employment within the scope of arbitration.
(c) "Employer" means any local agency employing employees, as
defined in subdivision (a), or any entity, except the State of
California, acting as an agent of any local agency, either directly
or indirectly.
(d) "Firefighter" means any person who is employed to perform
firefighting, fire prevention, fire training, hazardous materials
response, emergency medical services, fire or arson investigation, or
any related duties, without respect to the rank, job title, or job
assignment of that person.
(e) "Law enforcement officer" means any person who is a peace
officer, as defined in Section 830.1 of, subdivisions (b) and (d) of
Section 830.31 of, subdivisions (a), (b), and (c) of Section 830.32
of, subdivisions (a), (b), and (d) of Section 830.33 of, subdivisions
(a) and (b) of Section 830.35 of, subdivision (a) of Section 830.5
of, and subdivision (a) of Section 830.55 of, the Penal Code, without
respect to the rank, job title, or job assignment of that person.
(f) "Local agency" means any governmental subdivision, district,
public and quasi-public corporation, joint powers agency, public
agency or public service corporation, town, city, county, city and
county, or municipal corporation, whether incorporated or not or
whether chartered or not.
(g) "Scope of arbitration" means economic issues, including
salaries, wages and overtime pay, health and pension benefits,
vacation and other leave, reimbursements, incentives, differentials,
and all other forms of remuneration. The scope of arbitration shall
not include any issue that is protected by what is commonly referred
to as the "management rights" clause contained in Section 3504 of the
Government Code. Notwithstanding the foregoing, any employer that
is not exempt under Section 1299.9 may supersede this subdivision by
adoption of an ordinance that establishes a broader definition of
"scope of arbitration."
SEC. 53. Section 25607 of the Corporations Code is amended to
read:
25607. (a) Neither the commissioner nor any of the commissioner's
assistants, clerks, or deputies shall be interested as a director,
officer, shareholder, member (other than a member of an organization
formed for religious purposes), partner, agent, or employee of any
person who, during the period of the official's or employee's
association with the Department of Corporations, (1) was licensed or
applied for license as a broker-dealer or investment adviser under
this division, or (2) applied for or secured the qualification of the
sale of securities under this division.
(b) Nothing contained in subdivision (a) shall prohibit the
holding or purchasing of any securities by any assistant, clerk, or
deputy in accordance with rules as the commissioner shall adopt for
the purpose of protecting the public interest and avoiding conflicts
of interest.
(c) Nothing contained in subdivision (a) shall prohibit the
holding or purchasing of any securities by the commissioner if any of
the following criteria is met:
(1) The securities held or purchased by the commissioner are
exempt from the qualification requirements of Sections 25110, 25120,
and 25130 by virtue of Section 25100, provided that the holding or
purchasing of those securities is in accordance with rules adopted
for the purpose of protecting the public interest and avoiding
conflicts of interest.
(2) The securities held or purchased by the commissioner are not
subject to Sections 25110, 25120, and 25130 by virtue of Section
25100.1, provided that the holding or purchasing of those securities
is in accordance with rules adopted for the purpose of protecting the
public interest and avoiding conflicts of interest.
(3) The holding or purchasing of any securities by the
commissioner meets each of the following requirements:
(A) The securities are held or purchased through a management
account or trust administered by a bank or trust company authorized
to do business in this state, and the bank or trust company has sole
investment discretion regarding the holding, purchase, and sale of
securities.
(B) The commissioner did not, directly or indirectly, advise,
counsel, command, or suggest the holding, purchase, or sale of any
security or furnish any information relating to the security to the
bank or trust company.
(C) The account or trust does not at any time have more than 10
percent of its total assets invested in the securities of any one
issuer or hold more than 5 percent of the outstanding shares or units
of any class of securities of any one issuer.
(D) The commissioner shall report to the Attorney General not less
often than quarterly all holdings, purchases, and sales of
securities by him or her as authorized in paragraph (3), which
reports shall be retained by the Attorney General as public
documents.
SEC. 54. Section 31011 of the Corporations Code is amended to
read:
31011. "Franchise fee" means any fee or charge that a franchisee
or subfranchisor is required to pay or agrees to pay for the right to
enter into a business under a franchise agreement, including, but
not limited to, any payment for goods and services.
However, the following shall not be considered the payment of a
franchise fee:
(a) The purchase or agreement to purchase goods at a bona fide
wholesale price if no obligation is imposed upon the purchaser to
purchase or pay for a quantity of the goods in excess of that which a
reasonable businessperson normally would purchase by way of a
starting inventory or supply or to maintain a going inventory or
supply.
(b) The payment of a reasonable service charge to the issuer of a
credit card by an establishment accepting or honoring that credit
card.
(c) Amounts paid to a trading stamp company under Chapter 3
(commencing with Section 17750) of Part 3 of Division 7 of the
Business and Professions Code by a person issuing trading stamps in
connection with the retail sale of merchandise or service.
SEC. 55. Section 8277.6 of the Education Code is amended to read:
8277.6. (a) For purposes of this section "department" means the
Department of Housing and Community Development.
(b) The department shall administer the Child Care and Development
Facilities Loan Guaranty Fund and the Child Care and Development
Facilities Direct Loan Fund. The department may administer the funds
directly, through interagency agreements with other state agencies,
through contracts with public or private entities, or through any
combination thereof. If the department determines that a public or
private entity is capable of making child care and development
facilities loans or loan guarantees, the department may delegate the
authority to review and approve those loans or guarantees to the
public or private entity. The department is authorized to enter into
an interagency agreement with the Trade and Commerce Agency to carry
out the purposes of this section and Section 8277.5 by utilizing the
services of small business financial development corporations
established pursuant to Chapter 1 (commencing with Section 14000) of
Part 5 of Division 3 of the
Corporations Code. Toward this end, the department is authorized to
transfer funds from the Child Care and Development Facilities Direct
Loan Fund to the California Economic Development Grant and Loan Fund
established by Section 15327 of the Government Code and to transfer
funds from the Child Care and Development Facilities Loan Guaranty
Fund to the Small Business Expansion Fund established by Section
14030 of the Corporations Code. Those funds shall be deposited into
a Child Care Direct Loan Fund Account and a Child Care Loan Guaranty
Fund Account hereby established in the respective funds.
Notwithstanding anything to the contrary in Chapter 1 (commencing
with Section 15310) of Part 6.7 of Division 3 of Title 2 of the
Government Code and Chapter 1 (commencing with Section 14000) of Part
5 of Division 3 of the Corporations Code, the funds in these
accounts shall be administered in compliance with the requirements of
this section and Section 8277.5.
(c) Eligible applicants for the loan guaranty program and the
direct loan program shall include, but not be limited to, sole
proprietorships, partnerships, proprietary and nonprofit
corporations, and local public agencies that are responsible for
contracting with or providing licensed child care and development
services. Eligible facilities shall include licensed full-day and
part-day child care and development facilities and licensed large
family day care homes as described in Section 1597.465 of the Health
and Safety Code, and licensed small family day care homes as
described in Section 1597.44 of the Health and Safety Code.
(d) Loan guarantees and direct loans for family child care homes
shall not be made for the purpose of purchasing a home or any real
property.
(e) The State Department of Education shall provide input
regarding program priorities that shall be considered in the funding
of applications by the department. These priorities shall include,
but are not limited to, the following:
(1) Geographic priorities based on the extent of need for child
care and development supply-building efforts in different parts of
the state.
(A) Not less than 30 percent of the loan guarantee and direct loan
obligations shall benefit providers located in rural areas, as
defined in subparagraph (B). If the amount of qualified applications
from rural providers is insufficient to satisfy this requirement,
the excess capacity reserved for rural providers may be made
available to other qualified applications according to the policies
and procedures of the department. The remaining 70 percent of funds
shall be available to rural or urban areas and other priorities in
accordance with this subdivision.
(B) For purposes of subdivision (a), rural communities are defined
by any county with fewer than 400 residents per square mile.
(2) Age priorities based on the extent of need for child care and
development supply-building efforts for children of different age
groups.
(3) Income priorities shall include families transitioning to work
or other lower income families. For purposes of this section,
"lower income" shall have the same meaning as "income eligible" as
set forth in Section 8263.1.
(4) Program priorities based on the extent of facilities needs
among specific kinds of providers, including those that contract to
administer state and federally funded child care and development
programs administered by the State Department of Education, providers
who have lost classrooms due to class size reduction or other state
or local initiatives, or providers that need to expand to meet the
needs of a child care initiative for recipients of aid under Chapter
3 (commencing with Section 11200) of Part 3 of Division 9 of the
Welfare and Institutions Code, or any successor program.
(f) The program priorities shall reflect input from
representatives of diverse sectors of the child care and development
field, financial institutions, local planning councils, the Child
Development Programs Advisory Committee, and the State Department of
Social Services for purposes of identifying communities with high
percentages of recipients of aid under Chapter 3 (commencing with
Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code, or any successor program, who need child care to
meet work requirements. As part of its annual report to the
Legislature, required pursuant to Section 50408 of the Health and
Safety Code, the department shall assess and report, after
consultation with the State Department of Education, on the
performance, effectiveness, and fiscal standing of the Child Care and
Development Facilities Loan Guaranty Fund and the Child Care and
Development Facilities Direct Loan Fund. The report shall include
information on the number of defaults, the types of facilities in
default, and a review of the adequacy of the set-aside for rural
areas specified in paragraph (1) of subdivision (e).
(g) The department shall adopt regulations and establish
priorities, forms, policies and procedures for implementing and
managing the Child Care and Development Facilities Loan Guaranty Fund
and the Child Care and Development Facilities Direct Loan Fund and
making the loan guarantees and direct loans authorized hereunder
consistent with priorities provided by the State Department of
Education. To the extent feasible, the department shall use
applicant fees and points to cover its administrative costs. The
department may utilize an amount of money from the Child Care and
Development Facilities Loan Guaranty Fund and the Child Care and
Development Facilities Direct Loan Fund, as appropriate, for
reasonable administrative costs in any given fiscal year. Unless an
appropriation for administrative costs is made in the annual Budget
Act that exceeds the following limits, administrative expenditures
shall not exceed 3 percent of the amount appropriated to each fund in
the Budget Act of 1997.
(h) (1) The department shall adopt regulations to efficiently and
effectively implement the microenterprise loan program described in
this subdivision, including, but not limited to, the following:
(A) Making loans available from the Child Care and Development
Facilities Direct Loan Fund to local microenterprise loan funds and
other lenders who may relend the funds in appropriate amounts to
eligible small family day care home providers described in Section
1597.44 of the Health and Safety Code, large family day care home
providers described in Section 1597.465 of the Health and Safety
Code, and licensed child care and development facilities that serve
up to 35 children.
(B) Authorizing a specified amount of guarantees of small loans by
local microenterprise loan funds and other lenders serving eligible
small family day care home providers described in Section 1597.44 of
the Health and Safety Code, large family day care home providers
described in Section 1597.465 of the Health and Safety Code, and
licensed child care and development facilities that serve up to 35
children.
(2) Notwithstanding anything to the contrary in this section or
Section 8277.5, a loan made pursuant to this subdivision shall not be
made for less than five thousand dollars ($5,000) or for more than
fifty thousand dollars ($50,000) and shall not be subject to the
75-percent investment restriction contained in paragraph (2) of
subdivision (e) of Section 8277.5.
(i) The department may adopt regulations for the purposes of this
section as emergency regulations in accordance with Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code. For the purposes of the Administrative
Procedure Act, including Section 11349.6 of the Government Code, the
adoption of the regulations shall be deemed to be an emergency and
necessary for the immediate preservation of the public peace, health
and safety, or general welfare, notwithstanding subdivision (e) of
Section 11346.1 of the Government Code. Notwithstanding subdivision
(e) of Section 11346.1, any regulation adopted pursuant to this
section shall not remain in effect more than 180 days unless the
department complies with all provisions of Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code, as required by subdivision (e) of Section 11346.1 of
the Government Code.
SEC. 56. Section 8278.3 of the Education Code is amended to read:
8278.3. (a) (1) The Child Care Facilities Revolving Fund is
hereby established in the State Treasury to provide funding for the
renovation, repair, or improvement of an existing building to make
the building suitable for licensure for child care and development
services and for the purchase of new relocatable child care
facilities for lease to school districts and contracting agencies
that provide child care and development services, pursuant to this
chapter. The Superintendent of Public Instruction may transfer state
funds appropriated for child care facilities into this fund for
allocation to school districts and contracting agencies, as
specified, for the purchase, transportation, and installation of
facilities for replacement and expansion of capacity. School
districts and contracting agencies using facilities made available by
the use of these funds shall be charged a leasing fee, either at a
fair market value for those facilities or at an amount sufficient to
amortize the cost of purchase and relocation, whichever is lower,
over a 10-year period. Upon full repayment of the purchase and
relocation costs, title shall transfer from the State of California
to the school district or contracting agency. The Superintendent of
Public Instruction shall deposit all revenue derived from the lease
payments into the Child Care Facilities Revolving Fund.
(2) Notwithstanding Section 13340 of the Government Code, all
moneys in the fund, including moneys deposited from lease payments,
shall be continuously appropriated, without regard to fiscal year, to
the Superintendent of Public Instruction for expenditure pursuant to
this article.
(b) On or before August 1, 1998, and on or before August 1 of each
fiscal year thereafter, the Superintendent of Public Instruction
shall submit to the Office of the Secretary for Education, the
Department of Finance, and the Legislative Analyst's Office a report
detailing the number of funding requests received and their purpose,
the types of agencies which received this facilities funding, the
increased capacity that these facilities generated, a description of
how the facilities are being used, and a projection of the lease
payments collected and the funds available for future use.
SEC. 57. Section 17250.30 of the Education Code is amended to
read:
17250.30. (a) Any design-build entity that is selected to design
and build a project pursuant to this chapter shall possess or obtain
sufficient bonding to cover the contract amount for nondesign
services, and errors and omissions insurance coverage sufficient to
cover all design and architectural services provided in the contract.
This chapter does not prohibit a general or engineering contractor
from being designated the lead entity on a design-build entity for
the purposes of purchasing necessary bonding to cover the activities
of the design-build entity.
(b) Any payment or performance bond written for the purposes of
this chapter shall use a bond form developed by the Department of
General Services pursuant to subdivision (i) of Section 14661 of the
Government Code. The purpose of this subdivision is to promote
uniformity of bond forms to be used on school district design-build
projects throughout the state.
(c) (1) All subcontracts that were not listed by the design-build
entity in accordance with Section 17250.25 shall be awarded by the
design-build entity.
(2) The design-build entity shall do all of the following:
(A) Provide public notice of the availability of work to be
subcontracted.
(B) Provide a fixed date and time on which the subcontracted work
will be awarded.
(3) Subcontractors bidding on contracts pursuant to this
subdivision shall be afforded the protections contained in Chapter 4
(commencing with Section 4100) of Part 1 of Division 2 of the Public
Contract Code.
(4) In a contract between the design-build entity and a
subcontractor, and in a contract between a subcontractor and any
subcontractor thereunder, the percentage of the retention proceeds
withheld may not exceed the percentage specified in the contract
between the school district and the design-build entity. If the
design-build entity provides written notice to any subcontractor who
is not a member of the design-build entity, prior to or at the time
the bid is requested, that a bond may be required and the
subcontractor subsequently is unable or refuses to furnish a bond to
the design-build entity, then the design-build entity may withhold
retention proceeds in excess of the percentage specified in the
contract between the school district and the design-build entity from
any payment made by the design-build entity to the subcontractor.
(5) In accordance with the provisions of applicable state law, the
design-build entity may be permitted to substitute securities in
lieu of the withholding from progress payments. Substitutions shall
be made in accordance with Section 22300 of the Public Contract Code.
(d) The school district shall establish and enforce a labor
compliance program containing the requirements outlined in Section
1771.5 of the Labor Code or shall contract with a third party to
operate a labor compliance program containing the requirements
outlined in Section 1771.5 of the Labor Code. This requirement shall
not apply to projects where the school district or the design-build
entity has entered into a collective bargaining agreement that binds
all of the contractors performing work on the project.
SEC. 58. Section 19325.1 of the Education Code is amended to read:
19325.1. (a) The State Librarian may operate a telephonic reading
system, fund the operation of telephonic reading systems operated by
qualifying entities, or both.
(b) As used in this section, the following terms have the
following meanings, unless otherwise indicated:
(1)"Telephonic reading system" means a system operated by the
State Librarian or a qualifying entity, whereby a caller can hear the
reading of material such as newspapers, magazines, newsletters,
broadcast media schedules, transit route and schedule information,
and other reference or time-sensitive materials, as determined by the
operator of the system.
(2) "Qualifying entity" means any agency, instrumentality, or
political subdivision of the state or any nonprofit organization
whose primary mission is to provide services to people who are blind
or visually impaired.
(c) Qualifying entities that were eligible, as of January 1, 2001,
to receive funds from the State Librarian relating to the operation
of a telephonic reading system may continue to receive funding from
the State Librarian.
(d) The State Librarian, in cooperation with qualifying entities,
may expand the type and scope of materials available on telephonic
reading systems in order to meet the local, regional, or foreign
language needs of print-disabled residents of this state. The State
Librarian may also expand the scope of services and availability of
telephonic reading services by current methods and technologies or by
methods and technologies that may be developed. The State Librarian
may inform current and potential patrons of the availability of
telephonic reading service through appropriate means, including, but
not limited to, direct mailings, direct telephonic contact, and
public service announcements.
(e) The State Librarian may enter into contracts or other
agreements that he or she determines to be appropriate to provide
telephonic reading services pursuant to this section.
SEC. 59. Section 24209.3 of the Education Code is amended to read:
24209.3. (a) Notwithstanding subdivision (a) of Section 24209 and
subdivision (d) of Section 24204, and exclusive of any amounts
payable during the prior retirement for service pursuant to Section
22714 or 22715:
(1) A member who retired, other than pursuant to Section 24210,
24211, 24212, or 24213, and who reinstates and performs creditable
service, as defined in Section 22119.5, after the most recent
reinstatement, in an amount equal to two or more years of credited
service, shall, upon retirement for service on or after the effective
date of this section, receive a service retirement allowance equal
to the sum of the following:
(A) An amount calculated pursuant to this chapter based on
credited service performed prior to the most recent reinstatement,
using the member's age at the subsequent service retirement, from
which age shall be deducted the total time during which the member
was retired for service, and final compensation.
(B) An amount calculated pursuant to this chapter based on
credited service performed subsequent to the most recent
reinstatement, using the member's age at the subsequent service
retirement, and final compensation.
(2) A member who retired pursuant to Section 24210 and who
reinstates and performs creditable service, as defined in Section
22119.5, after the most recent reinstatement, in an amount equal to
two or more years of credited service, shall, upon retirement for
service on or after the effective date of this section, receive a
service retirement allowance equal to the sum of the following:
(A) An amount calculated pursuant to this chapter based on service
credit accrued prior to the effective date of the disability
retirement, using the member's age at the subsequent service
retirement, from which age shall be deducted the total time during
which the member was retired for service, and indexed final
compensation to the effective date of the initial service retirement.
(B) An amount calculated pursuant to this chapter based on the
service credit accrued after termination of the disability
retirement, using the member's age at the subsequent service
retirement, from which age shall be deducted the total time during
which the member was retired for service, and final compensation.
(C) An amount calculated pursuant to this chapter based on
credited service performed subsequent to the most recent
reinstatement, using the member's age at the subsequent service
retirement, and final compensation.
(3) A member who retired pursuant to Section 24211 and who
reinstates and performs creditable service, as defined in Section
22119.5, after the most recent reinstatement, in an amount equal to
two or more years of credited service, shall, upon retirement for
service on or after the effective date of this section, receive a
service retirement allowance equal to the sum of the following:
(A) The greater of (i) the disability allowance the member was
receiving immediately prior to termination of that allowance,
excluding the children's portion, or (ii) an amount calculated
pursuant to this chapter based on service credit accrued prior to the
effective date of the disability retirement, using the member's age
at the subsequent service retirement, from which age shall be
deducted the total time during which the member was retired for
service, and final compensation using compensation earnable or
projected final compensation or a combination of both.
(B) An amount equal to either of the following:
(i) For a member who was receiving a benefit pursuant to
subdivision (a) of Section 24211, the member's credited service at
the time of the retirement pursuant to Section 24211, excluding
service credited pursuant to Section 22717 or 22717.5 or Chapter 14
(commencing with Section 22800) or Chapter 14.2 (commencing with
Section 22820).
(ii) For a member who was receiving a benefit pursuant to
subdivision (b) of Section 24211, the member's projected service,
excluding service credited pursuant to Section 22717 or 22717.5 or
Chapter 14 (commencing with Section 22800) or Chapter 14.2
(commencing with Section 22820).
(C) An amount calculated pursuant to this chapter based on
credited service performed subsequent to the most recent
reinstatement, using the member's age at the subsequent service
retirement, and final compensation using compensation earnable or
projected final compensation or a combination of both.
(D) An amount based on any service credited pursuant to Chapter 14
(commencing with Section 22800 or Chapter 14.2 (commencing with
Section 22820) or, for credited service performed during the most
recent reinstatement, Section 22714, 22715, 22717, or 22717.5, using
the member's age at the subsequent service retirement, from which age
shall be deducted the total time during which the member was retired
for service, and final compensation using compensation earnable, or
projected final compensation, or a combination of both.
(4) A member who retired pursuant to Section 24212 or 24213 and
who reinstates and performs creditable service, as defined in Section
22119.5, after the most recent reinstatement, in an amount equal to
two or more years of credited service, shall, upon retirement for
service on or after the effective date of this section, receive a
service retirement allowance equal to the sum of the following:
(A) An amount calculated pursuant to this chapter based on the
member's projected service credit, excluding service credited
pursuant to Section 22717, 22717.5, or Chapter 14 (commencing with
Section 22800) or Chapter 14.2 (commencing with Section 22820), using
the member's age at the subsequent service retirement, from which
age shall be deducted the total time during which the member was
retired for service, and final compensation using compensation
earnable or projected final compensation or a combination of both.
(B) An amount calculated pursuant to this chapter based on
credited service performed subsequent to the most recent
reinstatement, using the member's age at the subsequent service
retirement, and final compensation, using compensation earnable or
projected final compensation or a combination of both.
(C) An amount based on any service credited pursuant to Chapter 14
(commencing with Section 22800) or Chapter 14.2 (commencing with
Section 22820) or, for credited service performed during the most
recent reinstatement, Section 22714, 22715, 22717, or 22717.5, using
the member's age at the subsequent service retirement, from which age
shall be deducted the total time during which the member was retired
for service, and final compensation using compensation earnable, or
projected final compensation, or a combination of both.
(b) If the total amount of credited service, other than that
accrued pursuant to Sections 22714, 22715, 22717, 22717.5, and 22826,
is equal to or greater than the number of years required to be
eligible for an increased allowance pursuant to this chapter or
Section 22134.5, the amounts identified in this section shall be
calculated pursuant to the section authorizing the increased benefit.
(c) For members receiving an allowance pursuant to Section 24410.5
or 24410.6, the amount payable pursuant to this section shall not be
less than the amount payable to the member as of the effective date
of reinstatement.
(d) The amount payable pursuant to this section shall not be less
than the amount that would be payable to the member pursuant to
Section 24209.
(e) For purposes of determining an allowance increase pursuant to
Sections 24415 and 24417, the calendar year of retirement shall be
the year of the subsequent retirement if the final compensation used
to calculate the allowance pursuant to this section is higher than
the final compensation used to calculate the allowance for the prior
retirement.
(f) The allowance paid pursuant to this section to a member
receiving a lump-sum payment pursuant to Section 24237 shall be
actuarially reduced to reflect that lump-sum payment.
SEC. 60. Section 44303 of the Education Code is amended to read:
44303. (a) From funds appropriated for that purpose, the
Commission on Teacher Credentialing shall allocate funds to the Los
Angeles Unified School District for purposes of implementing a pilot
program as set forth in this section.
(b) From funds allocated to it for purposes of this section, the
Los Angeles Unified School District may develop a 30-day training
program for the teachers it hires on an emergency basis who will be
assigned to schools that have 20 percent or more teachers on
emergency permits. The training shall be delivered before a teacher
hired on an emergency basis begins teaching. A teacher participating
in this training shall spend half of the training period observing
experienced fully credentialed teachers in a classroom of the same
grade level as the teacher being trained.
(c) To be eligible to receive funds pursuant to this section, the
Los Angeles Unified School District shall demonstrate to the
satisfaction of the commission that there currently exists a shortage
of fully and appropriately credentialed teachers in the district and
that the program developed by the district will train the teachers
it hires on an emergency basis to become effective classroom
teachers.
(d) For purposes of this section, "experienced fully credentialed
teacher" means a teacher who holds a clear credential for the subject
matter and grade level to which the teacher is assigned and has
three years of teaching experience.
(e) The Commission on Teacher Credentialing shall implement this
section only to the extent that funds are specifically appropriated
for the purposes of this section in the annual Budget Act or any
other measure.
(f) This section shall remain in effect only until January 1, 2007,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2007, deletes or extends that date.
SEC. 61. Section 44468 of the Education Code is amended to read:
44468. (a) An internship program, established pursuant to Article
7.5 (commencing with Section 44325) of Chapter 2 or this article,
that is accredited by the commission shall provide interns who meet
entrance criteria and are accepted to a multiple subject teaching
credential program or a single subject teaching credential program
the opportunity to choose an early program completion option,
culminating in a five-year preliminary teaching credential. The
early completion option shall be made available to interns who meet
the following requirements:
(1) Pass a written assessment that assesses knowledge of teaching
foundations, is adopted for this purpose by the commission, and
includes all of the
following:
(A) Human development as it relates to teaching and learning
aligned with the state content and performance standards for pupils
adopted pursuant to subdivision (a) of Section 60605.
(B) Techniques to address learning differences including working
with pupils with special needs.
(C) Techniques to address working with English learners to provide
access to the curriculum.
(D) Reading instruction as set forth in paragraph (4) of
subdivision (b) of Section 44259.
(E) The assessment of pupil progress based upon the state content
and performance standards for pupils adopted pursuant to subdivision
(a) of Section 60605 and planning intervention based on the
assessment.
(F) Classroom management techniques.
(G) Methods of teaching the subject fields.
(2) Pass the teaching performance assessment as set forth in
Section 44320.2.
(A) An intern participating in the early completion option may
take the teaching performance assessment only one time as part of the
early completion option. An intern who takes the teaching
performance assessment but is not successful may complete his or her
internship program. Scores on this assessment shall be used by the
internship programs in providing the individualized professional
development plan for interns that emphasizes preparation in areas
where additional growth is warranted and waiving preparation in areas
where the candidate has demonstrated competence. The intern must
retake and pass the teaching performance assessment at the end of the
internship in order to be considered for recommendation by the
internship program to the commission.
(B) Pending implementation of the teaching performance assessment,
an internship program shall provide for early recommendation of an
intern for a preliminary multiple subject teaching credential or
single subject teaching credential based upon demonstrated competence
of the field experience component of the internship program.
(3) Pass the reading instruction competence assessment described
in Section 44283, unless the written assessment adopted by the
commission pursuant to paragraph (1) is validated as covering content
equivalent to the reading assessment.
(4) Meet the requirements for teacher fitness as set forth in
Sections 44339, 44340, and 44341.
(b) An intern who chooses the early completion option must first
pass the assessment required pursuant to paragraph (1) of subdivision
(a) in order to qualify to take the teaching performance assessment
required pursuant to paragraph (2) of subdivision (a). Individuals
who have passed the written assessment may receive individualized
support within the cohort group of like individuals in preparations
for the teaching performance assessment.
(c) An intern who challenges the teacher preparation coursework by
taking the assessment described in paragraph (1) of subdivision (a)
but is not successful in passing the assessment may complete his or
her full internship program. Scores on this assessment shall be used
by the internship program in providing the individualized
professional development plan for interns that emphasizes preparation
in areas where additional growth is warranted and waiving
preparation areas where the intern has demonstrated competence.
(d) An intern who passes the assessments described in subdivision
(a) and is recommended by the internship program to the commission is
eligible for a five-year preliminary multiple subject teaching
credential or single subject teaching credential.
(e) The commission shall issue a professional clear multiple or
single subject teaching credential to an applicant whose employing
public school district documents, in a manner prescribed by the
commission, that he or she has fulfilled the following requirements:
(1) Holds a preliminary five-year teaching credential issued by
the commission.
(2) Completes one of the following in accordance with the
determination of the employing public school district based upon the
experience and individual needs of the applicant:
(A) A program of beginning teacher support and assessment
established pursuant to Article 4.5 (commencing with Section 44279.1)
of Chapter 2 of Part 24, including the California formative
assessment and support system for teachers.
(B) An alternative program of beginning teacher induction that the
commission determines, in conjunction with the Superintendent of
Public Instruction, meets state standards for teacher induction and
includes the California formative assessment and support system for
teachers or an alternative assessment deemed to meet the standards.
(3) As an alternative to the requirements in paragraph (2), an
applicant may choose to complete the California formative assessment
and support system for teachers or the equivalent at a faster pace as
determined by the Beginning Teacher Support and Assessment System
program.
SEC. 62. Section 47634.2 of the Education Code is amended to read:
47634.2. (a) (1) Notwithstanding any other provision of law, the
amount of funding to be allocated to a charter school on the basis of
average daily attendance that is generated by pupils engaged in
nonclassroom-based instruction, as defined by paragraph (2) of
subdivision (d) of Section 47612.5, including funding provided on the
basis of average daily attendance pursuant to Sections 47613.1,
47633, 47634, and 47664, shall be adjusted by the State Board of
Education. The State Board of Education shall adopt regulations
setting forth criteria for the determination of funding for
nonclassroom-based instruction, at a minimum the regulation shall
specify that the nonclassroom-based instruction is conducted for the
instructional benefit of the pupil and substantially dedicated to
that function. In developing these criteria and determining the
amount of funding to be allocated to a charter school pursuant to
this section, the State Board of Education shall consider, among
other factors it deems appropriate, the amount of the charter school'
s total budget expended on certificated employee salaries and
benefits and on schoolsites, as defined in paragraph (3) of
subdivision (d) of Section 47612.5, and the teacher-to-pupil ratio in
the school.
(2) For the 2001-02 fiscal year only, the amount of funding
determined by the State Board of Education pursuant to this section
shall not be less than 90 percent of the unadjusted amount to which a
charter school would otherwise be entitled on the basis of average
daily attendance.
(3) For the 2002-03 fiscal year, the amount of funding determined
by the State Board of Education pursuant to this section shall not be
more than 80 percent of the unadjusted amount to which a charter
school would otherwise be entitled, unless the State Board of
Education determines that a greater or lesser amount is appropriate
based on the criteria specified in paragraph (1) of subdivision (a).
(4) For the 2003-04 fiscal year and each fiscal year thereafter,
the amount of funding determined by the State Board of Education
pursuant to this section shall not be more than 70 percent of the
unadjusted amount to which a charter school would otherwise be
entitled, unless the State Board of Education determines that a
greater or lesser amount is appropriate based on the criteria
specified in paragraph (1) of subdivision (a).
(5) This section does not authorize the board to adjust the amount
of funding a charter school receives on the basis of average daily
attendance generated through classroom-based instruction, as defined
for purposes of calculating average daily attendance for
classroom-based instruction apportionments by paragraph (1) of
subdivision (d) of Section 47612.5.
(b) (1) The State Board of Education shall appoint an advisory
committee to recommend criteria to the board in accordance with this
section if it has not done so by the effective date of the act adding
this section. The advisory committee shall include, but is not
limited to, representatives from school district superintendents,
charter schools, teachers, parents, members of the governing boards
of school districts, county superintendents of schools, and the
Superintendent of Public Instruction.
(2) If a charter school submits a substantially complete request
for a determination for funding by February 13, 2002, and the State
Board of Education does not act on that request by March 19, 2002,
full funding is automatically granted for the 2001-02 fiscal year,
but the charter school shall reapply for a determination for funding
for the 2002-03 fiscal year.
(3) The determination for funding shall be on a percentage basis
and the superintendent shall implement the determination for funding
by reducing the charter school's reported average daily attendance by
the determination for funding percentage specified by the State
Board of Education.
(4) If the State Board of Education denies request for a
determination for funding or provides a reduction as authorized by
subdivision (a), the board shall, in writing, give the reasons for
its denial or reduction and, if appropriate, may describe how any
deficiencies or problems may be addressed.
(c) Each charter school offering nonclassroom-based instruction
shall, in each report provided to the Superintendent of Public
Instruction for apportionment purposes, identify the portion of its
average daily attendance that is generated through nonclassroom-based
instruction as defined in paragraph (2) of subdivision (d) of
Section 47612.5.
(d) Notwithstanding any other provision of law, charter schools
shall be subject, with regard to subdivisions (c) and (d) of Section
47612.5 and this section, to audits conducted pursuant to Section
41020.
SEC. 63. Section 48431.6 of the Education Code is amended to read:
48431.6. (a) The governing board of each district maintaining
high schools and accepting funds made available for purposes of this
section shall establish and maintain a program which ensures that
each pupil, upon reaching the age of 16 or prior to the end of the
10th grade, whichever occurs first, has received a systematic review
of his or her academic progress and counseling regarding the
educational options available to the pupil during the final two years
of high school. The program shall be adopted at a public meeting of
the governing board and shall include, but not be limited to, all of
the following:
(1) Provision for individualized review of the pupil's academic
and deportment records.
(2) Provision for a meeting with the pupil and where feasible,
with the pupil's parent or guardian, to explain the pupil's record,
the educational options available to the pupil, the coursework and
academic progress needed for satisfactory completion of high school,
and the effect of that coursework and academic progress upon the
pupil's options for postsecondary education and employment.
Educational options shall include, but not be limited to, regional
occupational centers and programs, continuation schools, academic
programs, and any other alternatives available to pupils of the
district.
(3) Provision for services of teachers, counselors, and others
designated by the governing board to provide the individualized
review and assistance to pupils pursuant to paragraphs (1) and (2).
To the maximum extent feasible, regional occupational center or
program counselors shall actively participate in, and the local
business community shall be involved in, career guidance activities.
(b) The program shall give first priority to identifying pupils
who are not earning credits at a rate which will enable them to
graduate with the rest of their class, and to providing these pupils
with counseling services funded pursuant to Section 48431.7.
SEC. 64. Section 49431 of the Education Code is amended to read:
49431. (a) At elementary and middle schools, and in those schools
participating in the pilot program created pursuant to Section
49433.7, the sale of all foods on school grounds shall be approved
for compliance with the nutrition standards in the section by the
person or persons responsible for implementing these provisions as
designated by the school district.
(b) (1) At elementary schools, the only food that may be sold to
pupils during breakfast and lunch periods is food that is sold as a
full meal. This paragraph does not prohibit the sale of fruit,
nonfried vegetables, legumes, beverages, dairy products, or grain
products, as individual food items if they meet the requirements set
forth in this subdivision.
(2) An individual food item sold to a pupil during morning or
afternoon breaks at elementary schools shall meet all of the
following standards:
(A) Not more than 35 percent of its total calories shall be from
fat. This subparagraph does not apply to the sale of nuts or seeds.
(B) Not more than 10 percent of its total calories shall be from
saturated fat.
(C) Not more than 35 percent of its total weight shall be composed
of sugar. This subparagraph does not apply to the sale of fruits or
vegetables.
(3) Regardless of the time of day, water, milk, 100-percent fruit
juices, or fruit-based drinks that are composed of no less than
50-percent fruit juice and that have no added sweeteners are the only
beverages that may be sold to pupils at an elementary school.
(c) In middle schools, from one-half hour before the start of the
schoolday until after the end of the last lunch period, no carbonated
beverage shall be sold to pupils.
(d) At middle schools, vending machines that contain beverage
items that do not meet the requirements in this section shall remain
locked or be rendered inoperable until after the end of the last
lunch period.
(e) An elementary school may permit the sale of food items that do
not comply with subdivisions (a) to (f), inclusive, of this section
as part of a school fundraising event in any of the following
circumstances:
(1) By pupils of the school if the sale of those items takes place
off of school premises.
(2) By pupils of the school if the sale of those items takes place
at least one-half hour after the end of the schoolday.
(f) Notwithstanding Article 3 (commencing with Section 33050) of
Chapter 1 of Part 20, this section shall not be waived pursuant to
that article.
(g) Although a middle school is required to comply with those
provisions of this section applicable to middle schools, it may, in
addition, elect to apply for participation in the pilot program
pursuant to Section 49433.7.
(h) This section shall become operative on January 1, 2004.
School districts shall be required to comply with this section only
if funds are appropriated in the Budget Act of 2003 for the purposes
of providing support and technical assistance to school districts as
set forth in Section 49433.5, for the purposes of providing grants to
participating school districts as set forth in subdivision (c) of
Section 49433, and for the purposes of increasing meal reimbursements
as set forth in Section 49430.5. The State Department of Education
shall file a written statement with the Secretary of the Senate and
the Chief Clerk of the Assembly within 30 days after enactment of the
Budget Act of 2003 stating whether funds have been appropriated as
set forth in this subdivision and in Section 49430.5.
SEC. 65. Section 49433.9 of the Education Code is amended to read:
49433.9. A school district participating in the pilot program
shall comply with all of the following requirements:
(a) (1) No beverage other than any of the following shall be sold
to pupils from one-half hour before the start of the schoolday until
one-half hour after the end of the schoolday:
(A) Fruit-based drinks that are composed of no less than
50-percent fruit juice and that have no added sweeteners.
(B) Drinking water.
(C) Milk, including, but not limited to, chocolate milk, soy milk,
rice milk, and other similar dairy or nondairy milk.
(D) Electrolyte replacement beverages that do not contain more
than 42 grams of added sweetener per 20 ounce serving.
(2) No carbonated beverage shall be sold to pupils from one-half
hour before the start of the schoolday until one-half hour after the
end of the schoolday.
(3) (A) Except as set forth in subparagraph (B), no beverage that
exceeds 12 ounces per serving shall be sold to pupils from one-half
hour before the start of the schoolday until one-half hour after the
end of the schoolday.
(B) The 12-ounce maximum serving requirement does not apply to any
of the following:
(i) Drinking water.
(ii) Milk, including, but not limited to, chocolate milk, soy
milk, rice milk, and other similar dairy or nondairy milk.
(iii) An electrolyte replacement beverage. An electrolyte
replacement beverage shall not exceed 20 ounces per serving.
(4) For the purposes of this subdivision and paragraph (3) of
subdivision (b) of Section 49431, "added sweetener" means any
additive that enhances the sweetness of the beverage, including, but
not limited to, added sugar, but does not include the natural sugar
or sugars that are contained within the fruit juice which is a
component of the beverage.
(b) No food item shall be sold to pupils from one-half hour before
the start of the schoolday until one-half hour after the end of the
schoolday unless it does not exceed 12 ounces per serving and it
meets all of the standards set forth in subparagraphs (A) to (C) of
paragraph (2) of Section 49431.
(c) Entree items and side dish serving sizes shall be no larger
than the portions of those foods served as part of the federal school
meal program.
(d) Fruit and nonfried vegetables shall be offered for sale at any
location where food is sold.
SEC. 66. Section 51727 of the Education Code is amended to read:
51727. (a) The Superintendent of Public Instruction shall accept
applications and may not award more than five grants. Applications
shall be due February 1, 2002. The Superintendent of Public
Instruction shall complete the review of applications pursuant to
subdivision (c) of Section 51726 and make awards pursuant to
subdivision (d) of Section 51726 no later than March 31, 2002. The
proposed high-tech high school for which a school district or charter
school receives funding shall be operational by September 30, 2002.
If the Superintendent of Public Instruction does not receive five
applications that merit funding pursuant to subdivision (c) of
Section 51726, some or all grants may be delayed until receiving the
approval of the State Board of Education.
(b) The Superintendent of Public Instruction, with the approval of
the State Board of Education, may, upon a showing of good cause and
if necessary, extend any of the following dates:
(1) The deadline for application submission.
(2) The date the grant award is to be made.
(3) The date by which a high-tech high school is to be
operational.
(c) If a grant recipient fails to make the high-tech high school
operational by the specified date, the Superintendent of Public
Instruction, with the approval of the State Board of Education may
rescind the grant award and award the grant funds to another eligible
grant recipient as determined by the Superintendent of Public
Instruction, with the approval of the State Board of Education.
(d) If the grant funds awarded pursuant to this article are not
used towards the establishment and implementation of a new high-tech
high school, the Superintendent of Public Instruction shall withhold
an amount equal to the funds the school district or charter school
received pursuant to this article from the next monthly principal
apportionment payment. The Superintendent of Public Instruction
shall conduct compliance visits as required to ensure that the funds
are used appropriately.
SEC. 67. Section 56404 of the Education Code is amended to read:
56404. To be eligible to receive funding to establish Family
Empowerment Centers on Disability pursuant to this chapter,
applicants shall meet the following organizational requirements:
(a) Be a nonprofit charitable organization organized under the
Internal Revenue Code pursuant to paragraph (3) of subdivision (c) of
Section 501 of Title 26 of the United States Code.
(b) Be staffed primarily by parents, guardians, and family members
of children and young adults with disabilities and by adults with
disabilities.
(c) Have as a majority of board members of each center, parents,
guardians, and family members of children and young adults with
disabilities who have experience with local or regional disability
systems and educational resources. Additional members shall include,
but not be limited to, persons with disabilities and representatives
of community agencies serving adults with disabilities, and other
community agencies.
(d) Demonstrate the capacity to provide services in accordance
with the family support guidelines developed by the Early Start
Family Resource Centers pursuant to Section 95004 of the Government
Code and administered by the State Department of Developmental
Services, and Parent Training Information Centers established
pursuant to Sections 1482 and 1483 of Title 20 of the United States
Code.
SEC. 68. Section 64001 of the Education Code is amended to read:
64001. (a) Notwithstanding any other provision of law, school
districts shall not be required to submit to the State Department of
Education, as part of the consolidated application, school plans for
categorical programs subject to this part. School districts shall
assure, in the consolidated application, that the Single Plan for
Pupil Achievement established pursuant to subdivision (d) has been
prepared in accordance with law, that schoolsite councils have
developed and approved a plan, to be known as the Single Plan for
Pupil Achievement for schools participating in programs funded
through the consolidated application process, and any other school
program they choose to include, and that school plans were developed
with the review, certification, and advice of any applicable school
advisory committees. The Single Plan for Pupil Achievement may also
be referred to as the Single Plan for Student Achievement. The
consolidated application shall also include certifications by
appropriate district advisory committees that the application was
developed with review and advice of those committees.
For any consolidated application that does not include the
necessary certifications or assurances, the State Department of
Education shall initiate an investigation to determine whether the
consolidated application and Single Plan for Pupil Achievement were
developed in accordance with law and with the involvement of
applicable advisory committees and schoolsite councils.
(b) Onsite school and district compliance reviews of categorical
programs shall continue, and school plans shall be required and
reviewed as part of these onsite visits and compliance reviews. The
Superintendent of Public Instruction shall establish the process and
frequency for conducting reviews of district achievement and
compliance with state and federal categorical program requirements.
In addition, the Superintendent of Public Instruction shall establish
the content of these instruments, including any criteria for
differentiating these reviews based on the achievement of pupils, as
demonstrated by the Academic Performance Index developed pursuant to
Section 52052, and evidence of district compliance with state and
federal law. The State Board of Education shall review the content
of these instruments for consistency with State Board of Education
policy.
(c) A school district shall submit school plans whenever the State
Department of Education requires the plans in order to effectively
administer any categorical program subject to this part. The State
Department of Education may require submission of the school plan for
any school that is the specific subject of a complaint involving any
categorical program or service subject to this part.
The State Department of Education may require a school district to
submit other data or information as may be necessary for the
department to effectively administer any categorical program subject
to this part.
(d) Notwithstanding any other provision of law, as a condition of
receiving state funding for a categorical program pursuant to Section
64000, and in lieu of the information submission requirements that
were previously required by this section prior to the amendments that
added this subdivision and subdivisions (e) to (i), inclusive,
school districts shall ensure that each school in a district that
operates any categorical programs subject to this part consolidates
any plans that are required by those programs into a single plan.
Schools may consolidate any plans that are required by federal
programs subject to this part into this plan, unless otherwise
prohibited by federal law. That plan shall be known as the Single
Plan for Pupil Achievement or may be referred to as the Single Plan
for Student Achievement.
(e) Plans developed pursuant to subdivision (d) of Section 52054,
and Section 6314 and following of Title 20 of the United States Code,
shall satisfy this requirement.
(f) Notwithstanding any other provision of law, the content of a
Single Plan for Pupil Achievement shall be aligned with school goals
for improving pupil achievement. School goals shall be based upon an
analysis of verifiable state data, including the Academic
Performance Index developed pursuant to Section 52052 and the English
Language Development test developed pursuant to Section 60810, and
may include any data voluntarily developed by districts to measure
pupil achievement. The Single Plan for Pupil Achievement shall, at a
minimum, address how funds provided to the school through any of the
sources identified in Section 64000 will be used to improve the
academic performance of all pupils to the level of the performance
goals, as established by the Academic Performance Index developed
pursuant to Section 52052. The plan shall also identify the schools'
means of evaluating progress toward accomplishing those goals and
how state and federal law governing these programs will be
implemented.
(g) The plan required by this section shall be reviewed annually
and updated, including proposed expenditure of funds allocated to the
school through the consolidated application, by the schoolsite
council, or, if the school does not have a schoolsite council, by
schoolwide advisory groups or school support groups that conform to
the requirements of Section 52012. The plans shall be reviewed and
approved by the governing board of the
local education agency at a regularly scheduled
meeting whenever there are material changes that affect the academic
programs for students covered by programs identified in Section
64000.
(h) The school plan and subsequent revisions shall be reviewed and
approved by the governing board of the school district. School
district governing boards shall certify that, to the extent allowable
under federal law, plans developed for purposes of this section are
consistent with district local improvement plans that are required as
a condition of receiving federal funding.
(i) Nothing in this act may be construed to prevent a school
district, at its discretion, from conducting an independent review
pursuant to subdivision (c) of Section 64001 as that section read on
January 1, 2001.
SEC. 69. Section 89005.5 of the Education Code is amended to read:
89005.5. (a) (1) All of the following names are the property of
the state:
(A) "California State University."
(B) The names of all educational institutions in the state with
names containing the words "California State University."
(C) All of the following names:
(i) "California Polytechnic State University, San Luis Obispo."
(ii) "California State Polytechnic University, Pomona."
(iii) "California Maritime Academy."
(iv) "Humboldt State University."
(v) "Sonoma State University."
(vi) "San Francisco State University."
(vii) "San Jose State University."
(viii) "San Diego State University."
(D) Abbreviations of names listed in subparagraphs (A), (B), and
(C), including, but not necessarily limited to, all of the following:
(i) "Cal State."
(ii) "Cal Maritime."
(iii) "Humboldt State."
(iv) "Sonoma State."
(v) "San Francisco State."
(vi) "San Jose State."
(vii) "San Diego State."
(viii) "Cal Poly."
(ix) "CSU."
(2) No person shall, without the permission of the Trustees of the
California State University, use this name, or any abbreviation of
it or any name of which these words are a part, in any of the
following ways:
(A) To designate any business, social, political, religious, or
other organization, including, but not limited to, any corporation,
firm, partnership, association, group, activity, or enterprise.
(B) To imply, indicate, or otherwise suggest that any product,
service, or organization is connected or affiliated with, or is
endorsed, favored, or supported by, or is opposed by the Trustees of
the California State University or any educational institution
administered by the trustees. The permission of the trustees is
required before any name listed in this subdivision may be used for
any commercial purpose.
(C) To display, advertise, or announce this name publicly at, or
in connection with, any meeting, assembly, or demonstration, or any
propaganda, advertising, or promotional activity of any kind which
has for its purpose or any part of its purpose the support,
endorsement, advancement, opposition, or defeat of any strike,
lockout, or boycott or of any political, religious, sociological, or
economic movement, activity, or program.
(b) However, nothing in this section shall interfere with any
person who makes, or restrict the right of any person to make, a true
and accurate statement of his or her present or former relationship
or connection with, his or her employment by, or his or her
enrollment in, the California State University in the course of
stating his or her experience or qualifications for any academic,
governmental, business, or professional credit or enrollment, or in
connection with any academic, governmental, professional, or other
employment whatsoever.
(c) Every person violating this section is guilty of a
misdemeanor.
SEC. 70. Section 92665.1 of the Education Code is amended and
renumbered to read:
92655.1. The Legislature requests the Regents of the University
of California, to the extent possible, to use existing resources to
establish dental, medical, and optometric health professions outreach
and exposure programs for elementary, high school, and undergraduate
students, including community college students.
SEC. 71. Section 94945 of the Education Code is amended to read:
94945. (a) The bureau shall assess each institution, except for
an institution that receives all of its students' total charges, as
defined in subdivision (k) of Section 94852, from third-party payers.
A third-party payer, for the purposes of this section, means an
employer, government program, or other payer that pays a student's
total charges directly to the institution when no separate agreement
for the repayment of that payment exists between the third-party
payer and the student. A student who receives third-party payer
benefits for his or her institutional charges is not eligible for
benefits from the Student Tuition Recovery Fund.
(1) The amount assessed each institution shall be calculated only
for those students who are California residents and who are eligible
to be reimbursed from the fund. It shall be based on the actual
amount charged each of these students for total tuition cost,
regardless of the portion that is prepaid. The amount of the
assessment on an institution shall be determined in accordance with
paragraphs (2) and (3). Each institution shall collect the amount
assessed by the bureau in the form of a Student Tuition Recovery Fund
fee from its new students, and remit these fees to the bureau during
the quarter immediately following the quarter in which the fees were
collected from the students. An institution may not charge a fee of
any kind for the collection of the Student Tuition Recovery Fund
fee. An institution may refuse to enroll a student who has not paid,
or made provisions to pay, the appropriate Student Tuition Recovery
Fund fee.
(2) The amount collected from a new student by an institution
shall be calculated on the basis of the course tuition paid over the
current calendar year. For purposes of annualized payment, a new
student enrolled in a course of instruction that is longer than one
calendar year in duration shall pay fees for the Student Tuition
Recovery Fund based on the amount of tuition collected during the
current calendar year.
(3) The assessment made pursuant to this section shall be made in
accordance with both of the following:
(A) Each new student shall pay a Student Tuition Recovery Fund
assessment for the period of January 1, 2002, to December 31, 2002,
inclusive, at the rate of three dollars ($3) per thousand dollars of
tuition paid, rounded to the nearest thousand dollars.
(B) Commencing January 1, 2003, Student Tuition Recovery Fund fees
shall be collected from new students at the rate of two dollars and
fifty cents ($2.50) per thousand dollars of tuition paid, rounded to
the nearest thousand dollars.
(4) The bureau may levy additional reasonable special assessments
on an institution under this section only if these assessments are
required to ensure that sufficient funds are available to satisfy the
anticipated costs of paying student claims pursuant to Section
94944.
(5) (A) The bureau may not levy a special assessment unless the
balance in any account in the Student Tuition Recovery Fund falls
below two hundred fifty thousand dollars ($250,000), as certified by
the Secretary of the State and Consumer Services Agency.
(B) A special assessment is a surcharge, collected by each
institution from newly enrolled students, of up to 100 percent of
that institution's regular assessment for four consecutive quarters.
The affected student shall pay the surcharge simultaneously with his
or her regular quarterly payment to the Student Tuition Recovery
Fund.
(C) The bureau shall provide at least 90 days' notice of an
impending special assessment to each affected institution. This
notice shall also be posted on the bureau's Internet Web site.
(D) The bureau may apply any special assessment payments that it
receives from an institution as a credit toward that institution's
current or future obligations to the Student Tuition Recovery Fund.
(6) The assessments shall be paid into the Student Tuition
Recovery Fund and credited to the appropriate account in the fund,
and the deposits shall be allocated, except as otherwise provided for
in this chapter, solely for the payment of valid claims to students.
Unless additional reasonable assessments are required, no
assessments for the degree-granting postsecondary educational
institution account shall be levied during any fiscal year if, as of
June 30 of the prior fiscal year, the balance in that account of the
fund exceeds one million five hundred thousand dollars ($1,500,000).
Unless additional reasonable assessments are required, no
assessments for the vocational educational institution account shall
be levied during any fiscal year if, as of June 30 of the prior
fiscal year, the balance in that account exceeds four million five
hundred thousand dollars ($4,500,000). However, regardless of the
balance in the fund, assessments shall be made on any newly approved
institution. Notwithstanding Section 13340 of the Government Code,
the moneys so deposited in the fund are continuously appropriated to
the bureau for the purpose of paying claims to students pursuant to
Section 94944.
(b) The bureau may deduct from the fund the reasonable costs of
administration of the tuition recovery program authorized by Section
94944 and this section. The maximum amount of administrative costs
that may be deducted from the fund, in a fiscal year, shall not
exceed one hundred thousand dollars ($100,000) from the
degree-granting postsecondary educational institution account and
three hundred thousand dollars ($300,000) from the vocational
educational institution account, plus the interest earned on money in
the fund that is credited to the fund. Prior to the bureau's
expenditure of any amount in excess of one hundred thousand dollars
($100,000) from the fund for administration of the tuition recovery
program, the bureau shall develop a plan itemizing that expenditure.
The plan shall be subject to the approval of the Department of
Finance. Institutions, except for schools of cosmetology licensed
pursuant to Article 8 (commencing with Section 7362) of Chapter 10 of
Division 3 of the Business and Professions Code and institutions
that offer vocational or job training programs, that meet the student
tuition indemnification requirements of a California state agency,
that secure a policy of surety or insurance from an admitted insurer
protecting their students against loss of paid tuition, or that
demonstrate to the bureau that an acceptable alternative method of
protecting their students against loss of prepaid tuition has been
established, shall be exempted from this section.
(c) Reasonable costs in addition to those permitted under
subdivision (b) may be deducted from the fund for any of the
following purposes:
(1) To make and maintain copies of student records from
institutions that close.
(2) To reimburse the bureau or a third party serving as the
custodian of records.
(d) In the event of a closure by any approved institution under
this chapter, any assessments that have been made against those
institutions, but have not been paid into the fund, shall be
recovered. Any payments from the fund made to students on behalf of
any institution shall be recovered from that institution.
(e) In addition to civil remedies, the bureau may order an
institution to pay previously unpaid assessments or to reimburse the
bureau for any payments made from the fund in connection with the
institution. Before any order is made pursuant to this section, the
bureau shall provide written notice to the institution and notice of
the institution's right to request a hearing within 30 days of the
service of the notice. If a hearing is not requested within 30 days
of the service of the notice, the bureau may order payment. If a
hearing is requested, Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code shall apply,
and the bureau shall have all powers prescribed in that chapter.
Within 30 days after the effective date of the issuance of the order,
the bureau may enforce the order in the same manner as if it were a
money judgment pursuant to Title 9 (commencing with Section 680.010)
of Part 2 of the Code of Civil Procedure.
(f) In addition to any other action that the bureau may take under
this chapter, the bureau may suspend or revoke an institution's
approval to operate because of the institution's failure to pay
assessments when due or failure to pay reimbursement for any payments
made from the fund within 30 days of the bureau's demand for
payment.
(g) The moneys deposited in the fund shall be exempt from
execution and shall not be the subject of litigation or liability on
the part of creditors of those institutions or students.
SEC. 72. Section 99226 of the Education Code is amended to read:
99226. (a) This article shall apply to the University of
California only during periods for which the Legislature has
appropriated funds therefor in the annual Budget Act and the Regents
of the University of California have accepted the funds.
(b) This article shall not apply to the University of California
unless and until the Regents of the University of California act, by
resolution, to make it applicable.
(c) The Regents of the University of California are requested to
jointly develop with the Trustees of California State University and
the independent colleges and universities, the institutes described
in this article, to be administered by the University of California,
in partnership with the California State University and with private,
independent universities in California.
(d) Each participant who satisfactorily completes an institute
authorized by this article shall receive a stipend commensurate with
the duration of the institute, of not less than one thousand dollars
($1,000) nor more than two thousand dollars ($2,000), as determined
by the University of California. However, in making this
determination, the University of California may not exceed the amount
provided in the Budget Act for stipends for each of the institutes
authorized by this article and must serve at each institute the
number of participants specified pursuant to this section.
(e) Commencing July 2001, and each fiscal year thereafter, the
number of participants receiving instruction through each of these
institutes shall be designated in the annual Budget Act.
(f) These institutes shall be developed in accordance with all of
the criteria specified in each section, as described therein.
(g) Notwithstanding any other provision of law, on a case-by-case
basis, and subject to the concurrence of the State Board of Education
that priorities for service to high-need schools are met, the
University of California and the programs authorized pursuant to
Sections 99220 through 99226, inclusive, may serve prekindergarten
teachers, kindergarten teachers, and teachers of grades 1 to 12,
inclusive, in participating school districts with programs in reading
or mathematics when the average of the reading or mathematics
portions of the achievement test authorized pursuant to Section 60640
is at or below the priority level for service in schools otherwise
served by the California Professional Development Institutes.
SEC. 73. Section 1405 of the Elections Code is amended to read:
1405. (a) Except as provided below, the election for a county,
municipal, or district initiative that qualifies pursuant to Section
9116, 9214, or 9310 shall be held not less than 88 nor more than 103
days after the date of the order of election.
(1) When it is legally possible to hold a special election on an
initiative measure that has qualified pursuant to Section 9116, 9214,
or 9310 within 180 days prior to a regular or special election
occurring wholly or partially within the same territory, the election
on the initiative measure may be held on the same date as, and be
consolidated with, that regular or special election.
(2) When it is legally possible to hold a special election on an
initiative measure that has qualified pursuant to Section 9116, 9214,
or 9310 during the period between a regularly scheduled statewide
direct primary election and a regularly scheduled statewide general
election in the same year, the election on the initiative measure may
be held on the same date as, and be consolidated with, the statewide
general election.
(3) To avoid holding more than one special election within any
180-day period, the date for holding the special election on an
initiative measure that has qualified pursuant to Section 9116, 9214,
or 9310, may be fixed later than 103 days but at as early a date as
practicable after the expiration of 180 days from the last special
election.
(4) Not more than one special election for an initiative measure
that qualifies pursuant to Section 9116, 9214, or 9310 may be held by
a jurisdiction during any period of 180 days.
(b) The election for a county initiative that qualifies pursuant
to Section 9118 shall be held at the next statewide election
occurring not less than 88 days after the date of the order of
election. The election for a municipal or district initiative that
qualifies pursuant to Section 9215 or 9311 shall be held at the
jurisdiction's next regular election occurring not less than 88 days
after the date of the order of election.
SEC. 74. Section 2185 of the Elections Code is amended to read:
2185. Upon written demand of the chair or vice chair of a party
state central committee or of the chair of a party county central
committee, the county elections official shall furnish to each
committee, without charge therefor, the index of registration for the
primary and general elections or for any special election at which a
partisan office is to be filled. The index of registration shall be
furnished to the committee demanding the index not less than 25 days
prior to the day of the primary, general, or special election for
which they are provided. Upon written demand, the county elections
official shall also furnish to the committee the index of
registration of voters who registered after the 54th day before the
election, which shall be compiled and prepared by Assembly districts.
The county elections official shall furnish either two printed
copies or, if available, one copy in an electronic form of the
indexes specified in this section.
SEC. 75. Section 3017 of the Elections Code is amended to read:
3017. (a) All absentee ballots cast under this division shall be
voted on or before the day of the election. After marking the
ballot, the absent voter shall either: (1) return the ballot by mail
or in person to the elections official from whom it came or (2)
return the ballot in person to any member of a precinct board at any
polling place within the jurisdiction. However, an absent voter who,
because of illness or other physical disability, is unable to return
the ballot, may designate his or her spouse, child, parent,
grandparent, grandchild, brother, sister, or a person residing in the
same household as the absent voter to return the ballot to the
elections official from whom it came or to the precinct board at any
polling place within the jurisdiction. The ballot must, however, be
received by either the elections official from whom it came or the
precinct board before the close of the polls on election day.
(b) The elections official shall establish procedures to insure
the secrecy of any ballot returned to a precinct polling place.
(c) The provisions of this section are mandatory, not directory,
and no ballot shall be counted if it is not delivered in compliance
with this section.
(d) Notwithstanding subdivision (a), no absent voter's ballot
shall be returned by any paid or volunteer worker of any general
purpose committee, controlled committee, independent expenditure
committee, political party, candidate's campaign committee, or any
other group or organization at whose behest the individual designated
to return the ballot is performing a service. However, this
subdivision shall not apply to a candidate or a candidate's spouse.
SEC. 76. Section 3201 of the Elections Code is amended to read:
3201. Any voter may apply for permanent absent voter status.
Application for permanent absent voter status shall be made in
accordance with Section 3001. The voter shall complete an
application, which shall be available from the county elections
official, and which shall contain all of the following:
(a) The applicant's name at length.
(b) The applicant's residence address.
(c) The address where ballot is to be mailed, if different from
the place of residence.
(d) The signature of the applicant.
SEC. 77. Section 13102 of the Elections Code is amended to read:
13102. (a) All voting shall be by ballot. There shall be
provided, at each polling place, at each election at which public
officers are to be voted for, but one form of ballot for all
candidates for public office, except that, for partisan primary
elections, one form of ballot shall be provided for each qualified
political party as well as one form of nonpartisan ballot, in
accordance with subdivision (b).
(b) At partisan primary elections, each voter not registered as
intending to affiliate with any one of the political parties
participating in the election shall be furnished only a nonpartisan
ballot, unless he or she requests a ballot of a political party and
that political party, by party rule duly noticed to the Secretary of
State, authorizes a person who has declined to state a party
affiliation to vote the ballot of that political party. The
nonpartisan ballot shall contain only the names of all candidates for
nonpartisan offices and measures to be voted for at the primary
election. Each voter registered as intending to affiliate with a
political party participating in the election shall be furnished only
a ballot of the political party with which he or she is registered
and the nonpartisan ballot, both of which shall be printed together
as one ballot in the form prescribed by Section 13207.
(c) A political party may adopt a party rule in accordance with
subdivision (b) that authorizes a person who has declined to state a
party affiliation to vote the ballot of that political party at the
next ensuing partisan primary election. The political party shall
notify the party chair immediately upon adoption of that party rule.
The party chair shall provide written notice of the adoption of that
rule to the Secretary of State not later than the 135th day prior to
the partisan primary election at which the vote is authorized.
SEC. 78. A heading is added to Chapter 2 (commencing with Section
21100) of Division 21 of the Elections Code, to read:
CHAPTER 2. SENATE DISTRICTS
SEC. 79. Section 8814.5 of the Family Code is amended to read:
8814.5. (a) After a consent to the adoption is signed by the
birth parent or parents pursuant to Section 8801.3 or 8814, the birth
parent or parents signing the consent shall have 30 days to take one
of the following actions:
(1) Sign and deliver to the department or delegated county
adoption agency a written statement revoking the consent and
requesting the child to be returned to the birth parent or parents.
After revoking consent, in cases where the birth parent or parents
have not regained custody, or the birth parent or parents have failed
to make efforts to exercise their rights under subdivision (b) of
Section 8815, a written notarized statement reinstating the original
consent may be signed and delivered to the department or delegated
county adoption agency, in which case the revocation of consent shall
be void and a new 30-day period shall commence. After revoking
consent, in cases in which the birth parent or parents have regained
custody, upon the delivery of a written notarized statement
reinstating the original consent to the department or delegated
county adoption agency, the revocation of consent shall be void and a
new 30-day period shall commence. The birth mother shall be
informed of the operational timelines associated with this section at
the time of signing of the statement reinstating the original
consent.
(2) (A) Sign a waiver of the right to revoke consent on a form
prescribed by the department in the presence of a representative of
the department or delegated county adoption agency. If neither a
representative of the department nor a representative of a delegated
county adoption agency is reasonably available, the waiver of the
right to revoke consent may be signed in the presence of a judicial
officer of a court of record if the birth parent is represented by
independent legal counsel. "Reasonably available" means that a
representative from either the department or the delegated county
adoption agency is available to accept the signing of the waiver
within 10 days and is within 100 miles of the location of the birth
mother.
(B) An adoption service provider may assist the birth parent or
parents in any activity where the primary purpose of that activity is
to facilitate the signing of the waiver with the department, a
delegated county agency, or a judicial officer. The adoption service
provider or another person designated by the birth parent or parents
may also be present at any interview conducted pursuant to this
section to provide support to the birth parent or parents.
(C) The waiver of the right to revoke consent may not be signed
until an interview has been completed by the department or delegated
county adoption agency unless the waiver of the right to revoke
consent is signed in the presence of a judicial officer of a court of
record as specified in this section, in which case the interview and
the witnessing of the signing of the waiver shall be conducted by
the judicial officer. Within 10 working days of a request made after
the department, the delegated county adoption agency, or the court
has received a copy of the petition for the adoption and the names
and addresses of the persons to be interviewed, the department, the
delegated county adoption agency, or the court shall interview, at
the department or agency office or the court, any birth parent
requesting to be interviewed. However, the interview, and the
witnessing of the signing of a waiver of the right to revoke consent
of a birth parent residing outside of California or located outside
of California for an extended period of time unrelated to the
adoption may be conducted in the state where the birth
parent is located, by any of the
following:
(i) A representative of a public adoption agency in that state.
(ii) A judicial officer in that state where the birth parent is
represented by independent legal counsel.
(iii) An adoption service provider.
(3) Allow the consent to become a permanent consent on the 31st
day after signing.
(b) The consent may not be revoked after a waiver of the right to
revoke consent has been signed or after 30 days, beginning on the
date the consent was signed or as provided in paragraph (1) of
subdivision (a), whichever occurs first.
SEC. 80. Section 21200.1 of the Financial Code is amended to read:
21200.1. A loan setup fee not to exceed three dollars ($3) may be
charged for each loan up to and including fifty dollars ($50). A
loan setup fee of five dollars ($5) may be charged for loans in
excess of fifty dollars ($50). Loan setup fees are in addition to
any other allowed charges.
SEC. 81. Section 1103 of the Food and Agricultural Code is amended
to read:
1103. For the purposes of this part, the following definitions
apply:
(a) "Agency" means the California Technology, Trade, and Commerce
Agency.
(b) "Air district" means an air pollution control district or an
air quality management district established or continued in existence
pursuant to Part 3 (commencing with Section 40000) of the Health and
Safety Code.
(c) "Facility" means any California site that meets both of the
following criteria:
(1) As of July 1, 2000, converted and continues to convert
qualified agricultural biomass to energy, or that operated prior to
July 1, 2000, converting qualified agricultural biomass to energy,
was closed for a period of time but maintained all applicable air
quality permits during that closure, and is ready to reopen on or
before June 30, 2001, and, in both cases, the conversion results in
lower oxides of nitrogen (NOx) emissions than would otherwise be
produced if burned in the open field during the ozone season, as
determined by the air district in which the site operates.
(2) Does not produce electricity for sale to a public utility
pursuant to a contract with that public utility, or, if the site does
produce electricity for sale to a public utility pursuant to a
contract with that public utility, the site does not qualify for
fixed energy prices established prior to June 30, 2000, under the
terms of that contract at the time the application for the grant is
made.
(d) "Grant" means an award of funds by the agency to an air
district that shall, in turn, grant incentive payments to a facility
after deducting the air district's administrative fee as provided in
Section 1104.
(e) "Incentive payment" means a payment by an air district to
facilities for qualified agricultural biomass to be received and
converted into energy after July 1, 2000. This payment shall be in
the amount of ten dollars ($10) for each ton of qualified
agricultural biomass received for conversion to energy.
(f) "Qualified agricultural biomass" means agricultural residues
that historically have been open-field burned in the jurisdiction of
the air district from which the agricultural residues are derived, as
determined by the air district, excluding urban and forest wood
products, that include either of the following:
(1) Field and seed crop residues, including, but not limited to,
straws from rice and wheat.
(2) Fruit and nut crop residues, including, but not limited to,
orchard and vineyard pruning and removals.
SEC. 82. Section 6047.7 of the Food and Agricultural Code is
amended to read:
6047.7. (a) During the first marketing season, beginning July 1,
2001, and ending June 30, 2002, the annual assessment shall be three
dollars ($3) for each one thousand dollars ($1,000) assessed pursuant
to Section 6047.9 for all grapes subject to assessment under this
article. The department shall notify each processor of the
established assessment as soon as practicable. For each marketing
season thereafter, the following shall apply:
(1) An annual assessment shall be recommended by the board and
submitted to the department for approval in an amount not to exceed
three dollars ($3) for each one thousand dollars ($1,000) assessed
pursuant to Section 6047.9 for all grapes subject to assessment under
this article.
(2) The department shall notify each processor of the established
assessment rate by July 15, or as soon thereafter as possible.
(b) In no event shall there be an assessment on the following:
(1) Material other than grapes, and defects, or other weight
adjustments deducted from the gross weight ticket.
(2) Any raisin-distilling material.
(3) Grapes for which an assessment has been withheld, paid, or is
already owed.
SEC. 83. Section 8769 of the Food and Agricultural Code is amended
to read:
8769. (a) The board, annually after the organization of the
district, shall assess any assessor's parcel of real property with 10
or more olive, stone, or pome fruit trees on it and enter as a
separate item, on an annual assessment roll for each assessor's
parcel of real property included in the district, the number of all
olive, stone, or pome fruit trees that are growing on it.
(b) For the purpose of this part, the board shall assess all
olive, stone, or pome fruit acreage at a uniform value per tree. The
assessment shall be upon a tree basis and the number of trees shall
be determined conclusively by the board counting the trees on each
assessor's parcel. The board, in counting the olive, stone, or pome
fruit trees, shall not, however, count any more than 100 trees on any
one acre of land.
(c) Upon completing the tree count within the district each year,
the board shall separately compute and certify, to the board of
supervisors, the total number of all the olive, stone, or pome fruit
trees in the district on each parcel.
SEC. 84. Section 8770 of the Food and Agricultural Code is amended
to read:
8770. Whenever new acreage within the district is planted with
olive, stone, or pome fruit trees so as to qualify as olive, stone,
or pome fruit acreage, the trees are subject to assessment as
provided in this part.
SEC. 85. Section 20437 of the Food and Agricultural Code is
amended to read:
20437. Any animal, hide, carcass, or portion of a carcass shall
not be held pursuant to Section 20435 for more than 30 consecutive
days, unless the notice of seizure is renewed by the inspector or
peace officer.
SEC. 86. Section 21052 of the Food and Agricultural Code is
amended to read:
21052. It is unlawful for any person who owns or has custody of
cattle to move, slaughter, release, sell, or receive at a registered
feedlot that cattle without the inspection that is required by
Section 21051.
For the purposes of this section, a common carrier which
transports cattle does not have custody of the cattle.
SEC. 87. Section 75090.5 of the Food and Agricultural Code is
amended to read:
75090.5. (a) The commission may petition the secretary to adopt
and administer any activity authorized by the California Marketing
Act of 1937, Chapter 1 (commencing with Section 58601) of Part 2 of
Division 21, relating to the commodity covered by the commission.
Adoption and administration of the activity by the commission shall
be in accordance with the act.
(b) As determined by the secretary, the governing body of the
commission may serve as the advisory board to the secretary with
respect to any activity recommended and approved pursuant to this
section.
SEC. 88. Section 1091.3 of the Government Code is amended to read:
1091.3. Section 1090 shall not apply to any contract or grant
made by a county children and families commission created pursuant to
the California Children and Families Act of 1998 (Division 108
(commencing with Section 130100) of the Health and Safety Code),
except where both of the following conditions are met:
(a) The contract or grant directly relates to services to be
provided by any member of a county children and families commission
or the entity the member represents or financially benefits the
member or the entity he or she represents.
(b) The member fails to recuse himself or herself from making,
participating in making, or in any way attempting to use his or her
official position to influence a decision on the grant or grants.
SEC. 89. Section 9353.5 of the Government Code is amended to read:
9353.5. Each member of this system shall file with the board any
information affecting his or her status as a member as the board may
require.
SEC. 89.1. Section 9353.6 of the Government Code is amended to
read:
9353.6. The Chief Clerk of the Assembly shall give the board
immediate written notice of the change in status of any legislative
statutory officer elected by the Assembly or Member of the Assembly
resulting from induction into office, resignation, expulsion, death,
or any other circumstances terminating his or her office as Member of
the Assembly, or as a legislative statutory officer, and the
Secretary of the Senate shall give the board immediate written notice
of any change in status of any Member of the Senate or legislative
statutory officer elected by the Senate. The Secretary of State
shall give the board immediate written notice of any change in status
of any elective state officer who is eligible to membership in the
system.
SEC. 89.2. Section 9353.7 of the Government Code is amended to
read:
9353.7. If it is impracticable for the board to determine from
the records the length of service, compensation, or age of any member
of this system, or if any member refuses or fails to give the board
a statement of his or her state service, compensation, or age, the
board may estimate the length of service, compensation, or age.
SEC. 89.3. Section 9355 of the Government Code is amended to read:
9355. Any Member of the Senate or Assembly may file with the
board at any time during incumbency in that office, a written
election to become a member of this system. Upon the filing of the
election he or she becomes a member of this system on the first day
of the month following the filing of the election.
SEC. 89.4. Section 9355.1 of the Government Code is amended to
read:
9355.1. A person ceases to be a member of this system:
(a) Upon retirement pursuant to this chapter.
(b) Upon death.
(c) Except as provided in Section 9355.2 or while absent on
military service, on the 31st day after he or she ceases to be a
legislator.
(d) Upon resignation from membership in this system.
SEC. 89.5. Section 9355.16 of the Government Code is amended to
read:
9355.16. Any member of this system who is charged, by indictment,
with the commission of any felony involving the accepting or giving,
or offering to accept or give, any bribe, the embezzlement of public
money, extortion, theft of public funds, perjury, or conspiracy to
commit any of these crimes, arising directly out of his or her
official duties, and who is a fugitive from justice, shall be
suspended from membership in this system while the charge is pending
and until final disposition of the charge. At any time during the
period of suspension of membership, the person so suspended shall be
entitled to withdraw his or her accumulated contributions from the
system, and any withdrawal shall constitute an election to terminate
membership in the system.
This section applies only to persons who are charged with the
commission after the effective date of this section of a felony
described in this section by an indictment filed after the effective
date of this section.
SEC. 89.6. Section 9355.2 of the Government Code is amended to
read:
9355.2. Notwithstanding any other provision of this chapter, if
the service of a member is discontinued by any means other than death
or retirement pursuant to this chapter, he or she shall have the
right to elect not later than 90 days after the date upon which
notice of that right is mailed by this system by registered mail to
the member's latest address on file in the office of this system, and
without right of revocation, whether to allow his or her accumulated
contributions to remain in the fund. Failure to make that election
shall be deemed an irrevocable election to resign from this system
and withdraw his or her accumulated contributions. A member whose
membership continues under this section is subject to the same age
requirements as apply to other members for retirement, and upon
qualification for retirement by age, he or she shall, upon his or her
application therefor to the board, be retired, and receive a
retirement allowance based upon the service with which he or she is
credited, in the same manner as other members of this system.
SEC. 89.7. Section 9355.4 of the Government Code is amended to
read:
9355.4. Every elective officer of the state whose office is
provided for by the California Constitution, except judges, may
become a member of this system. Except for judges, every elective
officer in office at the time this section becomes effective may,
within 90 days after the effective date, file with the board a
written election to become a member of this system. Except for
judges, every elective officer elected after the effective date of
this section may file an election within 90 days after the
commencement of the first term of office for which he or she is
elected. Upon the filing of the election he or she becomes a member
of this system on the first day of the month following the filing of
the election.
SEC. 89.8. Section 9355.45 of the Government Code is amended to
read:
9355.45. Every legislative statutory officer may become a member
of this system. Every such officer in office at the time this
section becomes effective may, within 90 days after the effective
date, file with the board a written election to become a member of
this system. Every such officer, elected after the effective date of
this section, may file an election within 90 days after the
commencement of the first term of office for which he or she is
elected after attaining status as a legislative statutory officer.
Upon the filing of the election he or she becomes a member of this
system on the first day of the month following the filing of the
election.
SEC. 89.9. Section 9355.5 of the Government Code is amended to
read:
9355.5. Membership in this system is exclusive of membership in
any other retirement system for state officers and employees. Upon
becoming a member of this system, a member ceases to be a member of
any other retirement system for state officers and employees of which
he or she has been a member. The member is entitled to credit for
service rendered prior to membership in this system pursuant to
Section 9356.1, but is not entitled to that credit and credit for the
same service in any other system.
SEC. 90. Section 9355.7 of the Government Code is amended to read:
9355.7. Any member who, while serving a term of office as a
Member of the Senate or Assembly, is elected or appointed to another
public office and resigns his or her office as Member of the Senate
or Assembly shall be credited with a period of service equal to the
remainder of his or her term as Member of the Senate or Assembly if
he or she makes contributions therefor to the Legislators' Retirement
Fund. Those contributions shall be in an amount equal to that which
he or she would have made if he or she had served as a Member of the
Senate or Assembly during the remainder of his or her term and had
received the salary that he or she was receiving on the effective
date of such resignation.
SEC. 90.1. Section 9355.8 of the Government Code is amended to
read:
9355.8. For purposes of Section 9355.7, "public office" includes,
but is not limited to, positions within the federal government that
require appointment by the President of the United States or his or
her delegate or a member of the President's Cabinet or his or her
delegate, if the person so appointed is thereafter again elected as a
Member of the Senate or Assembly.
This section shall have retroactive application, as well as
prospective application, but this section shall not deprive a member
of credit for any service credited to him or her on the effective
date of this section.
SEC. 90.2. Section 9356 of the Government Code is amended to read:
9356. Each member of this system shall receive credit for service
for time during which he or she holds office as a legislator after
becoming a member of this system.
A member may also receive credit for time during which he or she
held office as a legislator prior to becoming a member, provided he
or she makes contributions therefor to the Legislators' Retirement
Fund, as provided in Section 9357.2.
SEC. 90.3. Section 9356.1 of the Government Code is amended to
read:
9356.1. Each member who rendered service prior to the date this
chapter becomes operative shall receive credit therefor if he or she
makes contributions therefor to the Legislators' Retirement Fund, as
provided in Section 9357.2. No member shall receive credit for any
service for which he or she has not contributed as required by this
chapter.
SEC. 90.4. Section 9356.15 of the Government Code is amended to
read:
9356.15. Any person who is a member of the system pursuant to
Section 9355.45 may also receive credit for state service prior to
the date he or she became a member, whether that service was rendered
before or after the operative date of this section, provided that he
or she makes the contributions required by Section 9357.2, but at
the rate of 61/2 percent. If he or she elects to make a contribution
with respect to service credited under the Public Employees'
Retirement System, he or she shall receive a refund of his or her
accumulated contributions in that system with respect to all of his
or her state service.
The contribution rate for a person who first commences service in
any of the offices listed in Section 9350.55 or who becomes a member
of this system on or after January 1, 1982, shall be 8 percent.
SEC. 90.5. Section 9356.2 of the Government Code is amended to
read:
9356.2. Each member shall receive credit for service while absent
on military service, provided he or she is a member at the time the
absence commences or, in the case of military service prior to the
effective date of this section, provided he or she was a legislator
at the time the absence commenced. Contributions required for credit
under this section shall be computed only upon compensation paid, if
any, for the period of the absence on military service.
SEC. 90.6. Section 9356.3 of the Government Code is amended to
read:
9356.3. This section applies to any member heretofore or
hereafter elected to fill an unexpired term of office as Member of
the Legislature, and who is a Member of the Legislature on the
effective date of this section as amended at the 1961 General Session
or who becomes a Member of the Legislature after that date.
(a) If the member is elected as a Member of the Legislature at a
special election held prior to June 15 of any calendar year, the
period of service of the member during the remainder of that calendar
year shall constitute one calendar year of service for the purpose
of computing service under this act if he or she makes contributions
therefor to the Legislators' Retirement Fund. Those contributions
shall be in an amount equal to that which he or she would have made
if he or she had served as a legislator during the period of the
calendar year prior to his or her election.
(b) If the time of service of a member elected to fill an
unexpired term of office as Member of the Legislature amounts to more
than one-half of the full term for that office, he or she shall
receive credit for service for the full term of office if he or she
makes contributions therefor to the Legislators' Retirement Fund.
Those contributions shall be in an amount equal to that which he or
she would have made if he or she had served as a legislator during
the remainder of the term.
SEC. 90.7. Section 9356.5 of the Government Code is amended to
read:
9356.5. Any member whose service is discontinued but whose
membership is continued under Section 9355.2 and who becomes a member
of the Judges' Retirement System or is entitled to benefits under
the Judges' Retirement Law, may elect to transfer all or part of the
service for which he or she is credited under this system to the
Judges' Retirement System pursuant to Section 75030.5. The election
may be made at any time prior to retirement by written notice to the
board of administration. The member shall designate in the notice
the dates of the service that he or she elects to transfer. Upon
receipt of the notice by the board of administration, the member's
accumulated contributions on account of the period of service
transferred, and the interest thereon, shall be transferred to the
Judges' Retirement Fund.
If the member elects to transfer all of the service for which he
or she is credited in this system, his or her membership in this
system is terminated. If he or she elects to transfer less than all
of the service for which the member is credited in this system, his
or her membership is continued under Section 9355.2 and the service
with which he or she is credited in this system is reduced by the
amount so transferred.
Any member whose service is discontinued but whose membership is
continued under Section 9355.2 who is entitled to receive credit
under this system by making an election to do so and making a
contribution to this system for the service, but who has not made the
election, may, after becoming a member of the Judges' Retirement
System, elect to receive credit for all or part of that service in
the Judges' Retirement System pursuant to Section 75030.5. Upon
making the election, the member may not thereafter elect to be
credited in this system with the service so transferred.
This section does not apply to any person who, on or after January
1, 1986, first becomes or continues as a legislator, as defined in
Section 9351.3, in a term of office that commences on or after
January 1, 1986.
SEC. 90.8. Section 9357 of the Government Code is amended to read:
9357. For each year of service rendered after the date this
chapter becomes operative, each legislator who is a member of this
system shall contribute 4 percent of his or her compensation as a
legislator unless he or she is subject to other contribution
provisions of this chapter. Those contributions shall be paid as
provided in Section 9357.1.
SEC. 90.9. Section 9357.05 of the Government Code is amended to
read:
9357.05. Each person who is a member of the system pursuant to
Section 9355.45 shall contribute 61/2 percent of his or her
compensation for each year of service rendered as a member of the
system. Those contributions shall be paid as provided in Section
9357.15.
SEC. 91. Section 9357.1 of the Government Code is amended to read:
9357.1. Immediately upon receipt of the written election of a
legislator to become a member of this system, the board of
administration shall certify to the State Controller the name of that
member. The Controller shall deduct from each warrant drawn in
payment of compensation to the member the amount of contribution at
the rate prescribed by the provisions of this chapter with respect to
his or her service as a member of this system, and shall remit that
amount to the board of administration, to be deposited in the
Legislators' Retirement Fund.
SEC. 91.1. Section 9357.2 of the Government Code is amended to
read:
9357.2. Any member who rendered service prior to the date he or
she became a member may elect, at any time prior to retirement, to
contribute to the Legislators' Retirement Fund for each year or
fraction thereof for which he or she desires to receive credit for
service, a percentage of the compensation received by him or her in
respect to that service at the rate prescribed by the provisions of
this chapter with respect to his or her service as a member of this
system.
Those contributions may be paid by lump sum payment or by
installment payments over a period not in excess of the length of
time for which the member has elected to receive credit for the prior
service, at times and in a manner fixed by the board. No member
shall receive credit for any service for which he or she has not
contributed as required by this chapter.
SEC. 91.2. Section 9357.4 of the Government Code is amended to
read:
9357.4. A member may redeposit in the Legislators' Retirement
Fund, in one sum or in not to exceed 12 monthly or 24 semimonthly
payments, an amount equal to any accumulated contributions that have
been repaid to him or her pursuant to Section 9357.3, subject to
minimum payments fixed by the board, and if he or she makes a
redeposit, he or she shall receive credit for all service with which
he or she was credited at the time of the repayment.
SEC. 91.3. Section 9357.45 of the Government Code is amended to
read:
9357.45. Notwithstanding any other provisions of this chapter, a
person who was a member and entitled to be credited with 10 or more
years of service as a Member of the Senate or Assembly and who
withdrew his or her accumulated contributions prior to October 1,
1961, and after discontinuance of service, may, at any time before
December 31, 1965, redeposit in the fund in one sum an amount equal
to the accumulated contributions withdrawn plus the interest that
would have been credited to those accumulated contributions had they
not been withdrawn, using the rate of interest in effect at the time
of redeposit.
Upon the redeposit the person shall become a member with the
rights provided under this chapter to a member who elected under
Section 9355.2 to allow his or her contributions to remain in the
fund.
SEC. 91.4. Section 9357.46 of the Government Code is amended to
read:
9357.46. Any person who was a member and who withdrew his or her
accumulated contributions after discontinuance of service may, at any
time while he or she is in employment in which he or she is a member
of the Public Employees' Retirement System or the State Teachers'
Retirement System, redeposit into the fund in one sum an amount equal
to the accumulated contributions withdrawn plus the interest that
would have been credited to those accumulated contributions had they
not been withdrawn, using the rate of interest in effect at the time
of redeposit.
Upon the redeposit, the person shall become a member with the
rights provided a member who elected under Section 9355.2 to allow
his or her contributions to remain in the fund.
SEC. 91.5. Section 9357.5 of the Government Code is amended to
read:
9357.5. Upon reentering this system after a termination of his or
her membership, if a member does not elect to make, or having so
elected, does not make, a redeposit, he or she reenters as a new
member, without credit for any service.
SEC. 91.6. Section 9359.15 of the Government Code is amended to
read:
9359.15. Notwithstanding any other provision of this chapter, no
retirement allowance or optional settlement in lieu thereof under
this chapter shall be paid to or in respect to any person for time
during which he or she holds office as a legislator. If a retired
legislator reenters this system after his or her retirement, his or
her retirement allowance or optional settlement in lieu thereof shall
be discontinued, and his or her individual account shall be credited
with the amount of his or her accumulated contributions at the time
of his or her retirement, and he or she shall be entitled to receive
credit for service prior to his or her retirement in the same manner
as if he or she had never been retired.
SEC. 91.7. Section 9359.16 of the Government Code is amended to
read:
9359.16. Notwithstanding the provisions of Section 9359, a member
of this system, other than a legislative statutory officer, who is
under age 60 and who is credited with 15 or more, but less than 20
years of service shall be retired upon his or her written application
therefor to the Board of Administration, and thereafter shall
receive for life the retirement allowance provided by this section.
The allowance shall be equal to the retirement allowance that he or
she would receive for that service upon retirement at age 60 reduced
by 2 percent for each year by which the member's age at the time of
retirement is below age 60.
SEC. 91.8. Section 9359.17 of the Government Code is amended to
read:
9359.17. Notwithstanding the provisions of Section 9359, a
legislative statutory officer who has attained the age of 55 shall be
retired upon his or her written application therefor to the Board of
Administration, and shall thereafter receive for life the retirement
allowance provided by Section 9359.10.
SEC. 91.9. Section 9359.4 of the Government Code is amended to
read:
9359.4. A member may at any time designate a beneficiary to
receive those benefits as may be payable to his or her beneficiary or
estate under this chapter, by a writing filed with the board. To be
eligible to be so designated a person shall have an insurable
interest in the life of the member.
SEC. 92. Section 9359.85 of the Government Code is amended to
read:
9359.85. Upon the death of any person, after retirement and while
receiving a retirement allowance from this system, there shall be
paid to his or her estate or to those beneficiaries as he or she
shall nominate the sum of six hundred dollars ($600).
SEC. 92.1. Section 9359.95 of the Government Code is amended to
read:
9359.95. In addition to any other benefits provided for in this
chapter, upon the death, on or after January 1, 1959, and before
retirement, of any member who, at the time of his or her death was a
legislator, there shall be paid to his or her beneficiary, if he or
she has designated one, and if not, to his or her estate, an amount
equal to the annual compensation payable to him or her during the 12
months immediately preceding his or her death.
SEC. 92.2. Section 9360.3 of the Government Code is amended to
read:
9360.3. Application to the board for retirement of a member for
disability may be made by the member or any person in his or her
behalf. Upon receipt of the application and determination of the
board that the applicant is incapacitated for the performance of
duty, the board shall retire the member for disability. The
application shall be made only during one or more of the three
following periods:
(a) While the person is a member of this system.
(b) During any time as he or she has allowed his or her
accumulated contributions to remain in the system pursuant to Section
9355.2.
(c) If the person has not allowed his or her accumulated
contributions to remain in the system pursuant to Section 9355.2 and
if he or she was physically or mentally incapacitated to perform his
or her duties on the date of discontinuance of his or her service as
a legislator and the incapacity continued to the time of application,
while he or she is physically or mentally incapacitated.
SEC. 92.3. Section 9360.4 of the Government Code is amended to
read:
9360.4. The board may require any recipient of a disability
allowance under the minimum age for voluntary retirement to undergo
medical examination. The examination shall be made by a physician or
surgeon, appointed by the board, at the place of residence of the
recipient or other place mutually agreed upon. Upon the basis of the
examination, the board shall determine whether the physical or
mental disability still exists. If the board determines that the
recipient is not so incapacitated, his or her disability allowance
shall be canceled forthwith.
SEC. 92.4. Section 9360.5 of the Government Code is amended to
read:
9360.5. If any recipient of a disability retirement allowance
under the minimum age for voluntary retirement refuses to submit to
medical examination, the retirement allowance shall be discontinued
until he or she agrees to submit to the examination. If the refusal
continues for one year, disability retirement allowance shall be
discontinued.
SEC. 92.5. Section 9360.6 of the Government Code is amended to
read:
9360.6. The disability allowance for other than legislative
statutory officers is the same as the retirement allowance that would
be payable to the member had he or she retired under this chapter
for reasons other than disability, and shall be paid regardless of
the age of the member at the time of his or her retirement for
disability. The disability retirement allowance for legislative
statutory officers is the same as the retirement allowance provided
in Section 9359.10, and shall be paid regardless of the age of the
member at the time of his or her retirement for disability.
SEC. 92.6. Section 9360.7 of the Government Code is amended to
read:
9360.7. (a) Any Member of the Senate or Assembly who, after the
effective date of this section, retires for service or disability
shall receive the retirement allowance provided by this chapter
unmodified by any optional settlement elected pursuant to Article 7
(commencing with Section 9361) of this chapter.
(b) The surviving spouse of a member described in subdivision (a)
who dies after retirement may elect to receive an allowance under
this section. Any surviving spouse making that election shall
receive an allowance equal to one-half of the retirement allowance,
unmodified by any optional settlement that would be payable to the
member were he or she living and retired under this chapter.
(c) The surviving spouse of a member who is a Member of the Senate
or Assembly and who dies before retirement but after becoming
eligible for retirement may elect to receive an allowance under this
section. Any surviving spouse making that election shall receive an
allowance equal to one-half of the amount of the retirement
allowance, unmodified by any optional settlement, that would be
payable to the member were he or she living and retired under this
chapter. If there is no surviving spouse, or if the spouse dies or
remarries, then the allowance payable under this paragraph shall be
payable to the children of the member under the same conditions and
qualifications as provided for the allowances of children under
Article 8 (commencing with Section 9371) of this chapter.
(d) The election provided for in this section shall be made by a
writing filed with the board within 60 days after the death of the
member.
(e) The allowance to a surviving spouse provided by this section
is payable commencing upon the death of the member and continuing
until the death or remarriage of the surviving spouse. If pursuant
to this section, an allowance is paid to a surviving spouse, no
payment shall be made pursuant to Section 9359.8 or pursuant to
Article 7 (commencing with Section 9361) of this chapter.
(f) The provisions of this section apply to the surviving spouse
of any Member of the Senate or Assembly who was credited with 20 or
more years of service at the time of his or her retirement and
regardless of the date of retirement.
SEC. 92.7. Section 9360.11 of the Government Code is amended to
read:
9360.11. Notwithstanding any other provisions of this chapter,
any member who would have been eligible to retire under Section
9359.01 had it not been repealed because he or she did not return to
office or who would have been eligible to retire under that section
had it not been repealed and had he or she chosen not to run or not
been returned to office following the reapportionment of his or her
district is deemed eligible for retirement for purposes of Sections
9360.7 and 9361.1 at any time thereafter.
SEC. 92.8. Section 9361.1 of the Government Code is amended to
read:
9361.1. (a) The election, revocation, or change of election set
forth in Section 9361 may be made at any time before the effective
date of retirement or after the effective date and prior to the
making of the first payment on account of any retirement allowance.
(b) If at any time before the making of the first payment on
account of the member's retirement allowance, his or her spouse dies,
or his or her marriage is terminated by a final judgment of divorce
or annulment, the election of the member is automatically void, and
the member may make a new election.
(c) A member who has elected an optional settlement providing for
the payment of a benefit to his or her spouse may at any time before
the making of the first payment on account of his or her retirement
allowance substitute a different optional settlement.
(d) The election, revocation, or change of election shall be made
by a writing filed with the board.
(e) If a member who is eligible for retirement has elected one of
the optional settlements specified in this article, the surviving
spouse of that member shall receive the same benefits as the
surviving spouse would have received if the date of his or her death
had also been the date of his or her retirement and if retirement had
preceded death. If in that event benefits are paid to a surviving
spouse, no payment shall be made pursuant to Section 9359.8. If a
member dies without having elected an optional settlement and there
is a surviving spouse, he or she shall be deemed for the purposes of
this paragraph to have elected Optional Settlement No. 2. In either
case, the benefits payable to the surviving spouse shall be in the
same amount as if the member had elected to receive credit for
service rendered prior to the date he or she became a member of this
system and had paid the full amount of the contributions in respect
to that service.
(f) Any election filed under this section prior to the effective
date of the amendments to this section enacted by the Legislature at
the 1957 Regular Session shall continue to be effective in accordance
with the terms of this section as it read prior to those amendments
and may thereafter be revoked or changed or become void only in
accordance with this section as it read prior to such amendment.
SEC. 92.9. Section 9361.2 of the Government Code is amended to
read:
9361.2. Optional Settlement 1 consists of the right to have a
retirement allowance paid him or her until his or her death and if he
or she dies before he or she receives the amount of his or her
accumulated contributions at retirement, to have the balance at death
paid to his or her beneficiary or estate.
SEC. 93. Section 9361.3 of the Government Code is amended to read:
9361.3. Optional Settlement 2 consists of the right to have a
retirement allowance paid him or her until his or her death and
thereafter to his or her beneficiary for life.
SEC. 93.1. Section 9361.4 of the Government Code is amended to
read:
9361.4. Optional Settlement 3 consists of the right to have a
retirement allowance paid him or her until his or her death, and
thereafter to have one-half of his or her retirement allowance paid
to his or her beneficiary for life.
SEC. 93.2. Section 9371 of the Government Code is amended to read:
9371. (a) This article applies to members who elect to be subject
to its provisions and does not apply to any member while his or her
services are included in the federal social security system.
(b) An election pursuant to this section shall be in writing and
shall be effective only when received in the office of the board.
The board may, on the request of any member who elects to be subject
to this article, cancel the election if it finds that the election
was made because of the member's mistake or misunderstandings and
that the member has acted diligently in making the request. The
cancellation is effective as of the first day of the month following
the board's action canceling the election.
SEC. 93.3. Section 9374 of the Government Code is amended to read:
9374. Upon the death of a member before retirement (a) the
surviving wife or surviving husband of the member, who has the care
of unmarried children, including stepchildren, of the member who are
under 18 years of age, or are incapacitated because of disability
which began before and has continued without interruption after
attainment of that age, or if there is no such spouse, then (b) the
guardian of surviving unmarried children, including stepchildren, of
the member who are under 18 years of age or so incapacitated, if any,
or (c) the surviving wife or surviving husband of the member, who
does not qualify under (a), if any, or if no such children under (b)
or such spouse under (c), then (d) each surviving parent of the
member, shall be paid the following applicable survivor allowance,
under the conditions stated and from contributions of the state:
(1) A widow or a widower who was married to the member prior to
the occurrence of the injury or onset of the illness that resulted in
death, and has the care of unmarried children, including
stepchildren, of the deceased member under 18 years of age or so
incapacitated, shall be paid three hundred sixty dollars ($360) if
there is one such child, or four hundred thirty dollars ($430) per
month if there are two or more such children. If there also are such
children who are not in the care of the surviving spouse, the
portion of the allowance payable under this paragraph, assuming that
these children were in the care of the surviving spouse, which is in
excess of one hundred eighty dollars ($180) per month, shall be
divided equally among all of those children and payments made to the
spouse and other children, as the case may be.
(2) If there is no such surviving spouse, or if such surviving
spouse dies or remarries, and if there are unmarried children,
including stepchildren, of the deceased member under 18 years of age,
or if there are such children not in the care of such spouse, such
children shall be paid an allowance as follows:
(a) If there is only one such child, such child shall be paid one
hundred eighty dollars ($180) per month;
(b) If there are two such children, such children shall be paid
three hundred sixty dollars ($360) per month divided equally between
them; and
(c) If there are three or more such children, such children shall
be paid four hundred thirty dollars ($430) per month divided equally
among them.
(3) A widow or widower who has attained or attains the age of 62
years, and, with respect to both widow and widower, who was married
to such member prior to the occurrence of the injury or onset of the
illness that resulted in death, and has not remarried subsequent to
the member's death, shall be paid one hundred eighty dollars ($180)
per month. No allowance shall be paid under this subdivision, while
the surviving spouse is receiving an allowance under subdivision (1)
of this section, or while an allowance is being paid under
subdivision (2)(c) of this section. The allowance paid under this
subdivision shall be seventy dollars ($70) per month while an
allowance is being paid under subdivision (2)(b) of this section.
(4) If there is no surviving spouse, or surviving children who
qualify for a survivor allowance, or if such surviving spouse dies or
remarries, or if such children reach age 18 or die or marry prior
thereto, each of the member's dependent mother and father who has
attained or attains the age of 62 years, and who received at least
one-half of his or her support from the member at the time of the
member's death, shall be paid one hundred eighty dollars ($180) per
month.
"Stepchildren," for purposes of this section, shall include only
stepchildren of the member living with him or her in a regular
parent-child relationship at the time of his or her death.
SEC. 93.4. Section 9375 of the Government Code is amended to read:
9375. For the purposes of Section 9374, a person shall be
considered to be under the age of 18 if he or she is under the age of
22 and a full-time student.
SEC. 93.5. Section 9378 of the Government Code is amended to read:
9378. A person who in any month is an eligible survivor of more
than one member, shall receive only one allowance under this article,
which shall be the largest of the monthly allowances to which he or
she would otherwise be entitled.
SEC. 93.6. Section 9509 of the Government Code is amended to read:
9509. As soon as an enrolled bill is delivered to the Governor,
it shall be endorsed as follows: "This bill was received by the
Governor this ____ day of ____, 20__." The endorsement shall be
signed by the private secretary of the Governor or by any other
person designated by the Governor whose designation has been reported
to the Speaker of the Assembly and the President pro Tempore of the
Senate.
SEC. 93.7. Section 11126 of the Government Code is amended to
read:
11126. (a) (1) Nothing in this article shall be construed to
prevent a state body from holding closed sessions during a regular or
special meeting to consider the appointment, employment, evaluation
of performance, or dismissal of a public employee or to hear
complaints or charges brought against that employee by another person
or employee unless the employee requests a public hearing.
(2) As a condition to holding a closed session on the complaints
or charges to consider disciplinary action or to consider dismissal,
the employee shall be given written notice of his or her right to
have a public hearing, rather than a closed session, and that notice
shall be delivered to the employee personally or by mail at least 24
hours before the time for holding a regular or special meeting. If
notice is not given, any disciplinary or other action taken against
any employee at the closed session shall be null and void.
(3) The state body also may exclude from any public or closed
session, during the examination of a witness, any or all other
witnesses in the matter being investigated by the state body.
(4) Following the public hearing or closed session, the body may
deliberate on the decision to be reached in a closed session.
(b) For the purposes of this section, "employee" does not include
any person who is elected to, or appointed to a public office by, any
state body. However, officers of the California State University
who receive compensation for their services, other than per diem and
ordinary and necessary expenses, shall, when engaged in that
capacity, be considered employees. Furthermore, for purposes of this
section, the term employee includes a person exempt from civil
service pursuant to subdivision (e) of Section 4 of Article VII of
the California Constitution.
(c) Nothing in this article shall be construed to do any of the
following:
(1) Prevent state bodies that administer the licensing of persons
engaging in businesses or professions from holding closed sessions to
prepare, approve, grade, or administer examinations.
(2) Prevent an advisory body of a state body that administers the
licensing of persons engaged in businesses or professions from
conducting a closed session to discuss matters that the advisory body
has found would constitute an unwarranted invasion of the privacy of
an individual licensee or applicant if discussed in an open meeting,
provided the advisory body does not include a quorum of the members
of the state body it advises. Those matters may include review of an
applicant's qualifications for licensure and an inquiry specifically
related to the state body's enforcement program concerning an
individual licensee or applicant where the inquiry occurs prior to
the filing of a civil, criminal, or administrative disciplinary
action against the licensee or applicant by the state body.
(3) Prohibit a state body from holding a closed session to
deliberate on a decision to be reached in a proceeding required to be
conducted pursuant to Chapter 5 (commencing with Section 11500) or
similar provisions of law.
(4) Grant a right to enter any correctional institution or the
grounds of a correctional institution where that right is not
otherwise granted by law, nor shall anything in this article be
construed to prevent a state body from holding a closed session when
considering and acting upon the determination of a term, parole, or
release of any individual or other disposition of an individual case,
or if public disclosure of the subjects under discussion or
consideration is expressly prohibited by statute.
(5) Prevent any closed session to consider the conferring of
honorary degrees, or gifts, donations, and bequests that the donor or
proposed donor has requested in writing to be kept confidential.
(6) Prevent the Alcoholic Beverage Control Appeals Board from
holding a closed session for the purpose of holding a deliberative
conference as provided in Section 11125.
(7) (A) Prevent a state body from holding closed sessions with its
negotiator prior to the purchase, sale, exchange, or lease of real
property by or for the state body to give instructions to its
negotiator regarding the price and terms of payment for the purchase,
sale, exchange, or lease.
(B) However, prior to the closed session, the state body shall
hold an open and public session in which it identifies the real
property or real properties that the negotiations may concern and the
person or persons with whom its negotiator may negotiate.
(C) For purposes of this paragraph, the negotiator may be a member
of the state body.
(D) For purposes of this paragraph, "lease" includes renewal or
renegotiation of a lease.
(E) Nothing in this paragraph shall preclude a state body from
holding a closed session for discussions regarding eminent domain
proceedings pursuant to subdivision (e).
(8) Prevent the California Postsecondary Education Commission from
holding closed sessions to consider matters pertaining to the
appointment or termination of the Director of the California
Postsecondary Education Commission.
(9) Prevent the Council for Private Postsecondary and Vocational
Education from holding closed sessions to consider matters pertaining
to the appointment or termination of the Executive Director of the
Council for Private Postsecondary and Vocational Education.
(10) Prevent the Franchise Tax Board from holding closed sessions
for the purpose of discussion of confidential tax returns or
information the public disclosure of which is prohibited by law, or
from considering matters pertaining to the appointment or removal of
the Executive Officer of the Franchise Tax Board.
(11) Require the Franchise Tax Board to notice or disclose any
confidential tax information considered in closed sessions, or
documents executed in connection therewith, the public disclosure of
which is prohibited pursuant to Article 2 (commencing with Section
19542) of Chapter 7 of Part 10.2 of the Revenue and Taxation Code.
(12) Prevent the Board of Corrections from holding closed sessions
when considering reports of crime conditions under Section 6027 of
the Penal Code.
(13) Prevent the State Air Resources Board from holding closed
sessions when considering the proprietary specifications and
performance data of manufacturers.
(14) Prevent the State Board of Education or the Superintendent of
Public Instruction, or any committee advising the board or the
superintendent, from holding closed sessions on those portions of its
review of assessment instruments pursuant to Chapter 5 (commencing
with Section 60600) of, or pursuant to Chapter 8 (commencing with
Section 60850) of, Part 33 of the Education Code during which actual
test content is reviewed and discussed. The purpose of this
provision is to maintain the confidentiality of the assessments under
review.
(15) Prevent the California Integrated Waste Management Board or
its auxiliary committees from holding closed sessions for the purpose
of discussing confidential tax returns, discussing trade secrets or
confidential or proprietary information in its possession, or
discussing other data, the public disclosure of which is prohibited
by law.
(16) Prevent a state body that invests retirement, pension, or
endowment funds from holding closed sessions when considering
investment decisions. For purposes of consideration of shareholder
voting on corporate stocks held by the state body, closed sessions
for the purposes of voting may be held only with respect to election
of corporate directors, election of independent auditors, and other
financial issues that could have a material effect on the net income
of the corporation. For the purpose of real property investment
decisions that may be considered in a closed session pursuant to this
paragraph, a state body shall also be exempt from the provisions of
paragraph (7) relating to the identification of real properties prior
to the closed session.
(17) Prevent a state body, or boards, commissions, administrative
officers, or other representatives that may properly be designated by
law or by a state body, from holding closed sessions with its
representatives in discharging its responsibilities under Chapter 10
(commencing with Section 3500), Chapter 10.3 (commencing with Section
3512), Chapter 10.5
(commencing with Section 3525), or Chapter 10.7 (commencing with
Section 3540) of Division 4 of Title 1 as the sessions relate to
salaries, salary schedules, or compensation paid in the form of
fringe benefits. For the purposes enumerated in the preceding
sentence, a state body may also meet with a state conciliator who has
intervened in the proceedings.
(d) (1) Notwithstanding any other provision of law, any meeting of
the Public Utilities Commission at which the rates of entities under
the commission's jurisdiction are changed shall be open and public.
(2) Nothing in this article shall be construed to prevent the
Public Utilities Commission from holding closed sessions to
deliberate on the institution of proceedings, or disciplinary actions
against any person or entity under the jurisdiction of the
commission.
(e) (1) Nothing in this article shall be construed to prevent a
state body, based on the advice of its legal counsel, from holding a
closed session to confer with, or receive advice from, its legal
counsel regarding pending litigation when discussion in open session
concerning those matters would prejudice the position of the state
body in the litigation.
(2) For purposes of this article, all expressions of the
lawyer-client privilege other than those provided in this subdivision
are hereby abrogated. This subdivision is the exclusive expression
of the lawyer-client privilege for purposes of conducting closed
session meetings pursuant to this article. For purposes of this
subdivision, litigation shall be considered pending when any of the
following circumstances exist:
(A) An adjudicatory proceeding before a court, an administrative
body exercising its adjudicatory authority, a hearing officer, or an
arbitrator, to which the state body is a party, has been initiated
formally.
(B) (i) A point has been reached where, in the opinion of the
state body on the advice of its legal counsel, based on existing
facts and circumstances, there is a significant exposure to
litigation against the state body.
(ii) Based on existing facts and circumstances, the state body is
meeting only to decide whether a closed session is authorized
pursuant to clause (i).
(C) (i) Based on existing facts and circumstances, the state body
has decided to initiate or is deciding whether to initiate
litigation.
(ii) The legal counsel of the state body shall prepare and submit
to it a memorandum stating the specific reasons and legal authority
for the closed session. If the closed session is pursuant to
paragraph (1), the memorandum shall include the title of the
litigation. If the closed session is pursuant to subparagraph (A) or
(B), the memorandum shall include the existing facts and
circumstances on which it is based. The legal counsel shall submit
the memorandum to the state body prior to the closed session, if
feasible, and in any case no later than one week after the closed
session. The memorandum shall be exempt from disclosure pursuant to
Section 6254.25.
(iii) For purposes of this subdivision, "litigation" includes any
adjudicatory proceeding, including eminent domain, before a court,
administrative body exercising its adjudicatory authority, hearing
officer, or arbitrator.
(iv) Disclosure of a memorandum required under this subdivision
shall not be deemed as a waiver of the lawyer-client privilege, as
provided for under Article 3 (commencing with Section 950) of Chapter
4 of Division 8 of the Evidence Code.
(f) In addition to subdivisions (a), (b), and (c), nothing in this
article shall be construed to do any of the following:
(1) Prevent a state body operating under a joint powers agreement
for insurance pooling from holding a closed session to discuss a
claim for the payment of tort liability or public liability losses
incurred by the state body or any member agency under the joint
powers agreement.
(2) Prevent the examining committee established by the State Board
of Forestry and Fire Protection, pursuant to Section 763 of the
Public Resources Code, from conducting a closed session to consider
disciplinary action against an individual professional forester prior
to the filing of an accusation against the forester pursuant to
Section 11503.
(3) Prevent an administrative committee established by the
California Board of Accountancy pursuant to Section 5020 of the
Business and Professions Code from conducting a closed session to
consider disciplinary action against an individual accountant prior
to the filing of an accusation against the accountant pursuant to
Section 11503. Nothing in this article shall be construed to prevent
an examining committee established by the California Board of
Accountancy pursuant to Section 5023 of the Business and Professions
Code from conducting a closed hearing to interview an individual
applicant or accountant regarding the applicant's qualifications.
(4) Prevent a state body, as defined in subdivision (b) of Section
11121, from conducting a closed session to consider any matter that
properly could be considered in closed session by the state body
whose authority it exercises.
(5) Prevent a state body, as defined in subdivision (d) of Section
11121, from conducting a closed session to consider any matter that
properly could be considered in a closed session by the body defined
as a state body pursuant to subdivision (a) or (b) of Section 11121.
(6) Prevent a state body, as defined in subdivision (c) of Section
11121, from conducting a closed session to consider any matter that
properly could be considered in a closed session by the state body it
advises.
(7) Prevent the State Board of Equalization from holding closed
sessions for either of the following:
(A) When considering matters pertaining to the appointment or
removal of the Executive Secretary of the State Board of
Equalization.
(B) For the purpose of hearing confidential taxpayer appeals or
data, the public disclosure of which is prohibited by law.
(8) Require the State Board of Equalization to disclose any action
taken in closed session or documents executed in connection with
that action, the public disclosure of which is prohibited by law
pursuant to Sections 15619 and 15641 of this code and Sections 833,
7056, 8255, 9255, 11655, 30455, 32455, 38705, 38706, 43651, 45982,
46751, 50159, 55381, and 60609 of the Revenue and Taxation Code.
(9) Prevent the California Earthquake Prediction Evaluation
Council, or other body appointed to advise the Director of the Office
of Emergency Services or the Governor concerning matters relating to
volcanic or earthquake predictions, from holding closed sessions
when considering the evaluation of possible predictions.
(g) This article does not prevent either of the following:
(1) The Teachers' Retirement Board or the Board of Administration
of the Public Employees' Retirement System from holding closed
sessions when considering matters pertaining to the recruitment,
appointment, employment, or removal of the chief executive officer or
when considering matters pertaining to the recruitment or removal of
the Chief Investment Officer of the State Teachers' Retirement
System or the Public Employees' Retirement System.
(2) The Commission on Teacher Credentialing from holding closed
sessions when considering matters relating to the recruitment,
appointment, or removal of its executive director.
SEC. 93.8. Section 11550 of the Government Code is amended to
read:
11550. Effective January 1, 1988, an annual salary of ninety-one
thousand fifty-four dollars ($91,054) shall be paid to each of the
following:
(a) Director of Finance.
(b) Secretary of Business, Transportation and Housing Agency.
(c) Secretary of Resources Agency.
(d) Secretary of Health and Welfare Agency.
(e) Secretary of State and Consumer Services Agency.
(f) Director of Industrial Relations.
(g) Commissioner of the California Highway Patrol.
(h) Secretary of Youth and Adult Correctional Agency.
(i) Secretary of Food and Agriculture.
(j) Secretary of Technology, Trade, and Commerce.
(k) Secretary of Veterans Affairs.
The annual compensation provided by this section shall be
increased in any fiscal year in which a general salary increase is
provided for state employees. The amount of the increase provided by
this section shall be comparable to, but shall not exceed, the
percentage of the general salary increases provided for state
employees during that fiscal year.
SEC. 93.9. Section 12800 of the Government Code is amended to
read:
12800. There are in the state government the following agencies:
State and Consumer Services; Business, Transportation and Housing;
California Environmental Protection; California Health and Human
Services; Resources; Technology, Trade, and Commerce; and Youth and
Adult Correctional.
Whenever the term "Agriculture and Services Agency" appears in any
law, it means the "State and Consumer Services Agency," and whenever
the term "Secretary of Agriculture and Services Agency" appears in
any law, it means the "Secretary of State and Consumer Services
Agency."
Whenever the term "Business and Transportation Agency" appears in
any law, it means the "Business, Transportation and Housing Agency,"
and whenever the term "Secretary of the Business and Transportation
Agency" appears in any law, it means the "Secretary of the Business,
Transportation and Housing Agency."
Whenever the term "Health and Welfare Agency" appears in any law,
it means the "California Health and Human Services Agency," and
whenever the term "Secretary of the Health and Welfare Agency"
appears in any law, it means the "Secretary of the California Health
and Human Services Agency."
SEC. 94. Section 12940 of the Government Code is amended to read:
12940. It shall be an unlawful employment practice, unless based
upon a bona fide occupational qualification, or, except where based
upon applicable security regulations established by the United States
or the State of California:
(a) For an employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, or sexual orientation of any
person, to refuse to hire or employ the person or to refuse to select
the person for a training program leading to employment, or to bar
or to discharge the person from employment or from a training program
leading to employment, or to discriminate against the person in
compensation or in terms, conditions, or privileges of employment.
(1) This part does not prohibit an employer from refusing to hire
or discharging an employee with a physical or mental disability, or
subject an employer to any legal liability resulting from the refusal
to employ or the discharge of an employee with a physical or mental
disability, where the employee, because of his or her physical or
mental disability, is unable to perform his or her essential duties
even with reasonable accommodations, or cannot perform those duties
in a manner that would not endanger his or her health or safety or
the health or safety of others even with reasonable accommodations.
(2) This part does not prohibit an employer from refusing to hire
or discharging an employee who, because of the employee's medical
condition, is unable to perform his or her essential duties even with
reasonable accommodations, or cannot perform those duties in a
manner that would not endanger the employee's health or safety or the
health or safety of others even with reasonable accommodations.
Nothing in this part shall subject an employer to any legal liability
resulting from the refusal to employ or the discharge of an employee
who, because of the employee's medical condition, is unable to
perform his or her essential duties, or cannot perform those duties
in a manner that would not endanger the employee's health or safety
or the health or safety of others even with reasonable
accommodations.
(3) Nothing in this part relating to discrimination on account of
marital status shall do either of the following:
(A) Affect the right of an employer to reasonably regulate, for
reasons of supervision, safety, security, or morale, the working of
spouses in the same department, division, or facility, consistent
with the rules and regulations adopted by the commission.
(B) Prohibit bona fide health plans from providing additional or
greater benefits to employees with dependents than to those employees
without or with fewer dependents.
(4) Nothing in this part relating to discrimination on account of
sex shall affect the right of an employer to use veteran status as a
factor in employee selection or to give special consideration to
Vietnam era veterans.
(b) For a labor organization, because of the race, religious
creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, or sexual
orientation of any person, to exclude, expel, or restrict from its
membership the person, or to provide only second-class or segregated
membership or to discriminate against any person because of the race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status,
sex, or sexual orientation of the person in the election of officers
of the labor organization or in the selection of the labor
organization's staff or to discriminate in any way against any of its
members or against any employer or against any person employed by an
employer.
(c) For any person to discriminate against any person in the
selection or training of that person in any apprenticeship training
program or any other training program leading to employment because
of the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital
status, sex, or sexual orientation of the person discriminated
against.
(d) For any employer or employment agency to print or circulate or
cause to be printed or circulated any publication, or to make any
non-job-related inquiry of an employee or applicant, either verbal or
through use of an application form, that expresses, directly or
indirectly, any limitation, specification, or discrimination as to
race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status,
sex, or sexual orientation, or any intent to make any limitation,
specification, or discrimination.
(e) (1) Except as provided in paragraph (2) or (3), for any
employer or employment agency to require any medical or psychological
examination of an applicant, to make any medical or psychological
inquiry of an applicant, to make any inquiry whether an applicant has
a mental disability or physical disability or medical condition, or
to make any inquiry regarding the nature or severity of a physical
disability, mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment
agency may inquire into the ability of an applicant to perform
job-related functions and may respond to an applicant's request for
reasonable accommodation.
(3) Notwithstanding paragraph (1), an employer or employment
agency may require a medical or psychological examination or make a
medical or psychological inquiry of a job applicant after an
employment offer has been made but prior to the commencement of
employment duties, provided that the examination or inquiry is
job-related and consistent with business necessity and that all
entering employees in the same job classification are subject to the
same examination or inquiry.
(f) (1) Except as provided in paragraph (2), for any employer or
employment agency to require any medical or psychological examination
of an employee, to make any medical or psychological inquiry of an
employee, to make any inquiry whether an employee has a mental
disability, physical disability, or medical condition, or to make any
inquiry regarding the nature or severity of a physical disability,
mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment
agency may require any examinations or inquiries that it can show to
be job-related and consistent with business necessity. An employer
or employment agency may conduct voluntary medical examinations,
including voluntary medical histories, which are part of an employee
health program available to employees at that worksite.
(g) For any employer, labor organization, or employment agency to
harass, discharge, expel, or otherwise discriminate against any
person because the person has made a report pursuant to Section
11161.8 of the Penal Code that prohibits retaliation against hospital
employees who report suspected patient abuse by health facilities or
community care facilities.
(h) For any employer, labor organization, employment agency, or
person to discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices forbidden under
this part or because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
(i) For any person to aid, abet, incite, compel, or coerce the
doing of any of the acts forbidden under this part, or to attempt to
do so.
(j) (1) For an employer, labor organization, employment agency,
apprenticeship training program or any training program leading to
employment, or any other person, because of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, or sexual
orientation, to harass an employee, an applicant, or a person
providing services pursuant to a contract. Harassment of an
employee, an applicant, or a person providing services pursuant to a
contract by an employee other than an agent or supervisor shall be
unlawful if the entity, or its agents or supervisors, knows or should
have known of this conduct and fails to take immediate and
appropriate corrective action. An entity shall take all reasonable
steps to prevent harassment from occurring. Loss of tangible job
benefits shall not be necessary in order to establish harassment.
(2) The provisions of this subdivision are declaratory of existing
law, except for the new duties imposed on employers with regard to
harassment.
(3) An employee of an entity subject to this subdivision is
personally liable for any harassment prohibited by this section that
is perpetrated by the employee, regardless of whether the employer or
covered entity knows or should have known of the conduct and fails
to take immediate and appropriate corrective action.
(4) (A) For purposes of this subdivision only, "employer" means
any person regularly employing one or more persons or regularly
receiving the services of one or more persons providing services
pursuant to a contract, or any person acting as an agent of an
employer, directly or indirectly, the state, or any political or
civil subdivision of the state, and cities. The definition of
"employer" in subdivision (d) of Section 12926 applies to all
provisions of this section other than this subdivision.
(B) Notwithstanding subparagraph (A), for purposes of this
subdivision, "employer" does not include a religious association or
corporation not organized for private profit, except as provided in
Section 12926.2.
(C) For purposes of this subdivision, "harassment" because of sex
includes sexual harassment, gender harassment, and harassment based
on pregnancy, childbirth, or related medical conditions.
(5) For purposes of this subdivision, "a person providing services
pursuant to a contract" means a person who meets all of the
following criteria:
(A) The person has the right to control the performance of the
contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently
established business.
(C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work, and
performs work that requires a particular skill not ordinarily used in
the course of the employer's work.
(k) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to
employment, to fail to take all reasonable steps necessary to prevent
discrimination and harassment from occurring.
(l) For an employer or other entity covered by this part to refuse
to hire or employ a person or to refuse to select a person for a
training program leading to employment or to bar or to discharge a
person from employment or from a training program leading to
employment, or to discriminate against a person in compensation or in
terms, conditions, or privileges of employment because of a conflict
between the person's religious belief or observance and any
employment requirement, unless the employer or other entity covered
by this part demonstrates that it has explored any available
reasonable alternative means of accommodating the religious belief or
observance, including the possibilities of excusing the person from
those duties that conflict with his or her religious belief or
observance or permitting those duties to be performed at another time
or by another person, but is unable to reasonably accommodate the
religious belief or observance without undue hardship on the conduct
of the business of the employer or other entity covered by this part.
Religious belief or observance, as used in this section, includes,
but is not limited to, observance of a Sabbath or other religious
holy day or days, and reasonable time necessary for travel prior and
subsequent to a religious observance.
(m) For an employer or other entity covered by this part to fail
to make reasonable accommodation for the known physical or mental
disability of an applicant or employee. Nothing in this subdivision
or in paragraph (1) or (2) of subdivision (a) shall be construed to
require an accommodation that is demonstrated by the employer or
other covered entity to produce undue hardship to its operation.
(n) For an employer or other entity covered by this part to fail
to engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for reasonable
accommodation by an employee or applicant with a known physical or
mental disability or known medical condition.
(o) For an employer or other entity covered by this part, to
subject, directly or indirectly, any employee, applicant, or other
person to a test for the presence of a genetic characteristic.
SEC. 94.5. Section 12965 of the Government Code is amended to
read:
12965. (a) (1) In the case of failure to eliminate an unlawful
practice under this part through conference, conciliation, or
persuasion, or in advance thereof if circumstances warrant, the
director in his or her discretion may cause to be issued in the name
of the department a written accusation. The accusation shall contain
the name of the person, employer, labor organization, or employment
agency accused, which shall be known as the respondent, shall set
forth the nature of the charges, shall be served upon the respondent
together with a copy of the verified complaint, as amended, and shall
require the respondent to answer the charges at a hearing.
(2) For any complaint treated by the director as a group or class
complaint for purposes of investigation, conciliation, and accusation
pursuant to Section 12961, an accusation shall be issued, if at all,
within two years after the filing of the complaint. For any
complaint alleging a violation of Section 51.7 of the Civil Code, an
accusation shall be issued, if at all, within two years after the
filing of the complaint. For all other complaints, an accusation
shall be issued, if at all, within one year after the filing of a
complaint. If the director determines, pursuant to Section 12961,
that a complaint investigated as a group or class complaint under
Section 12961 is to be treated as a group or class complaint for
purposes of conciliation and accusation as well, that determination
shall be made and shall be communicated in writing within one year
after the filing of the complaint to each person, employer, labor
organization, employment agency, or public entity alleged in the
complaint to have committed an unlawful practice.
(b) (1) If an accusation is not issued within 150 days after the
filing of a complaint, or if the department earlier determines that
no accusation will issue, the department shall promptly notify, in
writing, the person claiming to be aggrieved that the department
shall issue, on his or her request, the right-to-sue notice. This
notice shall indicate that the person claiming to be aggrieved may
bring a civil action under this part against the person, employer,
labor organization, or employment agency named in the verified
complaint within one year from the date of that notice. If the
person claiming to be aggrieved does not request a right-to-sue
notice, the department shall issue the notice upon completion of its
investigation, and not later than one year after the filing of the
complaint.
(2) A city, county, or district attorney in a location having an
enforcement unit established on or before March 1, 1991, pursuant to
a local ordinance enacted for the purpose of prosecuting HIV/AIDS
discrimination claims, acting on behalf of any person claiming to be
aggrieved due to HIV/AIDS discrimination, may also bring a civil
action under this part against the person, employer, labor
organization, or employment agency named in the notice. The superior
courts of the State of California shall have jurisdiction of those
actions, and the aggrieved person may file in any of these courts.
Those actions may be brought in any county in the state in which the
unlawful practice is alleged to have been committed, in the county in
which the records relevant to the practice are maintained and
administered, or in the county in which the aggrieved person would
have worked or would have had access to the public accommodation but
for the alleged unlawful practice, but if the defendant is not found
within any of these counties, an action may be brought within the
county of the defendant's residence or principal office.
(3) A copy of any complaint filed pursuant to this part shall be
served on the principal offices of the department and of the
commission. The remedy for failure to send a copy of a complaint is
an order to do so.
(4) Actions may not be filed as class actions
or may not be maintained as class actions by the person or persons
claiming to be aggrieved where those persons have filed a civil class
action in the federal courts alleging a comparable claim of
employment discrimination against the same defendant or defendants.
(5) In actions brought under this section, the court, in its
discretion, may award to the prevailing party reasonable attorney's
fees and costs, including expert witness fees, except where the
action is filed by a public agency or a public official, acting in an
official capacity.
(c) (1) If an accusation includes a prayer either for damages for
emotional injuries as a component of actual damages, or for
administrative fines, or for both, or if an accusation is amended for
the purpose of adding a prayer either for damages for emotional
injuries as a component of actual damages, or for administrative
fines, or both, the respondent may, within 30 days after service of
the accusation or amended accusation, elect to transfer the
proceedings to a court in lieu of a hearing pursuant to subdivision
(a) by serving a written notice to that effect on the department, the
commission, and the person claiming to be aggrieved. The commission
shall prescribe the form and manner of giving written notice.
(2) No later than 30 days after the completion of service of the
notice of election pursuant to paragraph (1), the department shall
dismiss the accusation and shall, either itself or, at its election,
through the Attorney General, file in the appropriate court an action
in its own name on behalf of the person claiming to be aggrieved as
the real party in interest. In this action, the person claiming to
be aggrieved shall be the real party in interest and shall have the
right to participate as a party and be represented by his or her own
counsel. Complaints filed pursuant to this section shall be filed in
the appropriate superior court in any county in which unlawful
practices are alleged to have been committed, in the county in which
records relevant to the alleged unlawful practices are maintained and
administered, or in the county in which the person claiming to be
aggrieved would have worked or would have had access to public
accommodation, but for the alleged unlawful practices. If the
defendant is not found in any of these counties, the action may be
brought within the county of the defendant's residence or principal
office. Those actions shall be assigned to the court's delay
reduction program, or otherwise given priority for disposition by the
court in which the action is filed.
(3) A court may grant as relief in any action filed pursuant to
this subdivision any relief a court is empowered to grant in a civil
action brought pursuant to subdivision (b), in addition to any other
relief that, in the judgment of the court, will effectuate the
purpose of this part. This relief may include a requirement that the
employer conduct training for all employees, supervisors, and
management on the requirements of this part, the rights and remedies
of those who allege a violation of this part, and the employer's
internal grievance procedures.
(4) The department may amend an accusation to pray for either
damages for emotional injury or for administrative fines, or both,
provided that the amendment is made within 30 days of the issuance of
the original accusation.
SEC. 95. Section 13964 of the Government Code, as amended by
Section 7 of Chapter 712 of the Statutes of 2001, is amended to read:
13964. (a) After having heard the evidence relevant to the
application for assistance, the board shall approve the application
if a preponderance of the evidence shows that as a direct result of
the crime the victim or derivative victim incurred an injury that
resulted in a pecuniary loss.
(b) An application for assistance may be denied, in whole or in
part, if the board finds that denial is appropriate because of the
nature of the victim's or other applicant's involvement in the events
leading to the crime or the involvement of the persons whose injury
or death give rise to the application. In the case of a minor, the
board shall consider the minor's age, physical condition, and
psychological state as well as any compelling health and safety
concerns in determining whether the minor's application should be
denied pursuant to this section.
(c) No victim shall be eligible for assistance under this article
under either of the following circumstances:
(1) The board finds that the victim knowingly and willingly
participated in the commission of the crime. This paragraph shall
not apply if the injury occurred as a direct result of a crime
committed in violation of subdivision (d) of Section 261.5 of the
Penal Code.
(2) The board finds that the victim failed to cooperate reasonably
with a law enforcement agency in the apprehension and conviction of
a criminal committing the crime. In the case of a minor, the board
shall consider the minor's age, physical condition, and psychological
state as well as any compelling health and safety concerns in
determining whether the minor is eligible for assistance pursuant to
this section.
(d) No derivative victim shall be eligible for assistance under
this article under either of the following circumstances:
(1) The board finds that the victim or derivative victim knowingly
and willingly participated in the commission of the crime.
(2) The board finds that the victim or derivative victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the crime.
(e) Notwithstanding paragraph (2) of subdivision (c) and paragraph
(2) of subdivision (d), for claims based on domestic violence, the
board shall adopt guidelines that allow the board to consider and
approve applications for assistance based on domestic violence,
taking into account the victim's age, physical condition,
psychological state, and any compelling health or safety reasons,
including, but not limited to, a reasonable fear of retaliation or
harm that would jeopardize the well-being of the victim or the victim'
s family, in evaluating a victim's cooperation with law enforcement,
and giving due consideration to the degree of cooperation of which
the victim is capable in light of the presence of any of these
factors.
For the purposes of this section, the application of a derivative
victim of domestic violence under the age of 18 years shall not be
deemed ineligible on the basis of ineligibility of the victim under
subdivision (b).
(f) No application shall be denied solely because no criminal
complaint has been filed, unless the complaint has not been filed for
one of the reasons stated in subdivision (c) or (d). Moreover, no
application shall be denied because a criminal complaint is filed,
but later dismissed, if the dismissal is not for the reasons stated
in subdivision (c) or (d).
(g) Once an application has been accepted by the board pursuant to
subdivision (b) of Section 13962, as the application pertains to
medical or medical-related expenses, the claim shall continue to be
processed and either awarded or denied pursuant to this article in
the event of the death of the applicant.
(h) If a nonoffending parent in a child sexual abuse case
cooperates with the prosecution or Child Protective Services by
providing assistance to law enforcement in the disposition of the
case, that parent shall not be considered uncooperative within the
meaning of this section and shall be eligible, if otherwise
qualified, for restitution as a derivative victim pursuant to
subparagraph (C) of paragraph (1) of subdivision (a) of Section
13965.
(i) This section shall remain in effect only until January 1,
2004, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2004, deletes or extends
that date.
SEC. 96. Section 13965 of the Government Code, as amended by
Section 10.5 of Chapter 712 of the Statutes of 2001, is amended to
read:
13965. (a) If the application for assistance is approved, the
board shall determine what type of state assistance will best aid the
victim or derivative victim. The board may take any or all of the
following actions:
(1) Reimburse the following persons for the expense of their
outpatient mental health counseling when that mental health
counseling is necessary as a direct result of the crime:
(A) A victim in an amount not to exceed ten thousand dollars
($10,000).
(B) A derivative victim who is the surviving parent, sibling,
child, spouse, or fiance of a victim of a crime which directly
resulted in the death of the victim in an amount not to exceed ten
thousand dollars ($10,000).
(C) A derivative victim, as defined in subparagraph (A), (B), (C),
or (D) of paragraph (2) of subdivision (a) of Section 13960, who is
the primary caretaker of a minor victim of sexual or physical abuse
whose claim is not denied or reduced pursuant to subdivision (b) or
(d) of Section 13964 in a total amount not to exceed ten thousand
dollars ($10,000) for not more than two derivative victims described
in this subparagraph.
(D) A derivative victim not eligible for reimbursement pursuant to
subparagraph (B) or (C) in an amount not to exceed three thousand
dollars ($3,000), provided that mental health counseling of a
derivative victim under subparagraph (E) of paragraph (2) of
subdivision (a) of Section 13960 shall be reimbursed only if that
counseling is necessary for the treatment of the victim.
(E) A victim of a crime committed in violation of subdivision (d)
of Section 261.5 of the Penal Code in an amount not to exceed three
thousand dollars ($3,000) for mental health counseling expenses only.
A derivative victim of a crime committed in violation of
subdivision (d) of Section 261.5 of the Penal Code shall not be
eligible for reimbursement of mental health counseling expenses.
The board may authorize a direct cash payment to a provider of
psychological or psychiatric treatment or mental health counseling
services, including peer counseling services provided by a rape
crisis center as defined by Section 13837 of the Penal Code or to
either the victim or the derivative victim, equal to the pecuniary
loss attributable to medical or medical-related expenses, including
counseling, directly resulting from the injury. Reimbursement on the
initial claim for any psychological, psychiatric, or mental health
counseling services, including peer counseling services provided by a
rape crisis center, shall, if the application has been approved, be
paid by the board within 90 days of the date of receipt of the claim
for payment, with subsequent payments to be made to the provider
within one month of the receipt of a claim for payment. However, the
board may not authorize without good cause a direct cash payment to
a licensed health care provider or rape crisis center over the
objection of the applicant.
When a public agency, including a court or district attorney or a
police, county child protective services, or other state or local
governmental agency, refers a victim of crime to a private nonprofit
agency for treatment for that victim, the private nonprofit agency
shall be reimbursed for those services at the level of the normal and
customary fee charged by the private nonprofit agency to clients
with adequate means of payment for its services, except that this
reimbursement shall not exceed the maximum reimbursement rates set by
the board and may be made only to the extent that the victim
otherwise qualifies for services under the victims of crime program
and that other reimbursement or direct subsidies are not available to
serve the victim.
Payments authorized pursuant to this paragraph for peer counseling
services provided by a rape crisis center shall not exceed fifteen
dollars ($15) for each hour of services provided. Those services
shall be limited to individual, in-person counseling on a
face-to-face basis for a period not to exceed 10 weeks plus one
series of facilitated support group counseling sessions.
(2) Authorize a cash payment to the victim or derivative victim
equal to the pecuniary loss resulting from loss of wages pursuant to
Section 13965.1.
(3) Authorize a cash payment to a derivative victim for loss of
support pursuant to Section 13965.1.
(4) (A) Authorize a cash payment or reimbursement not to exceed
two thousand dollars ($2,000) to a victim of sexual assault or
domestic violence for expenses incurred in relocating, if the
expenses are determined by law enforcement to be necessary for the
personal safety of the victim or by a mental health treatment
provider to be necessary for the emotional well-being of the victim.
These expenses may include, but need not be limited to, all of the
following:
(i) Deposits for utilities and telephone service.
(ii) Deposits for rental housing, not to exceed the first and last
months' rent and a security deposit or two thousand dollars
($2,000), whichever is less.
(iii) Temporary lodging and food expenses, not to exceed one
thousand dollars ($1,000).
(iv) Clothing and other personal items, not to exceed five hundred
dollars ($500).
(B) The board shall develop procedures to ensure that the victim
is using the cash payment only for the purposes of this paragraph.
The procedures may include, but need not be limited to, requiring
copies of receipts, lease agreements, or other documents as
requested, or developing a method for direct payment to the landlord
or vendor.
(C) When a relocation payment or reimbursement is provided to a
victim of sexual assault or domestic violence, the victim shall agree
to not inform the offender, if the identity of the offender is known
to the victim, of the location of the victim's new residence and to
not allow the offender, if the identity of the offender is known to
the victim, on the premises at any time, or shall agree to seek a
restraining order against the offender, if the identity of the
offender is known to the victim.
(D) The board may authorize a cash payment or reimbursement
pursuant to this paragraph to victims of crimes other than domestic
violence if the expenses are determined by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(E) The cash payment or reimbursement made under this paragraph
shall only be awarded once to any victim, except that the board may,
under compelling circumstances, award a second cash payment or
reimbursement to the same victim if both of the following conditions
are met:
(i) The crime or series of crimes occurs more than three years
from the date of the crime giving rise to the initial relocation cash
payment or reimbursement.
(ii) The crime does not involve the same perpetrator.
(5) Authorize cash payments to or on behalf of the victim for job
retraining or similar employment-oriented rehabilitative services.
(6) (A) In the case of a victim of a crime that occurred in the
victim's residence, authorize reimbursement for the expense for
installing or increasing residential security, not to exceed one
thousand dollars ($1,000). Installing or increasing residential
security may include, but need not be limited to, both of the
following:
(i) Home security device or system.
(ii) Replacing or increasing the number of locks.
(B) Reimbursement under this paragraph shall be made upon
verification by law enforcement to be necessary for the personal
safety of the victim or by a mental health treatment provider to be
necessary for the emotional well-being of the victim.
(C) The board shall develop procedures to ensure that the victim
is using the reimbursement only for the purposes of this paragraph.
The procedures may include, but need not be limited to, requiring
copies of receipts, invoices, estimates, or other documents, or
developing a method for direct payment to the vendor.
(7) (A) In the case of a victim who is permanently disabled as a
direct result of the crime, whether the disability is partial or
total, authorize a reimbursement for the expense of renovating or
retrofitting his or her residence or a vehicle, or both, to make the
residence, the vehicle, or both, accessible or the vehicle
operational by the victim. Reimbursement shall be made upon
verification that the expense is medically necessary.
(B) The board shall develop procedures to ensure that
reimbursement is made only for the purposes of this paragraph. The
procedures may include, but need not be limited to, requiring copies
of receipts, invoices, estimates, or other documents, or developing a
method for direct payment to the vendor.
(8) Obtain an independent examination and report from any provider
of psychological or psychiatric treatment or mental health
counseling services, if it believes there is a reasonable basis for
requesting an additional evaluation. In cases where the crime
involves sexual assault, the provider shall have expertise in the
needs of sexual assault victims. In cases where the crime involves
child abuse or molestation, the provider shall have expertise in the
needs of victims of child abuse or molestation, as appropriate. When
a reevaluation is obtained, payments shall not be discontinued prior
to completion of the reevaluation.
(9) When a victim dies as a direct result of a crime, the board
may reimburse any individual who voluntarily, and without
anticipation of personal gain, pays or assumes the obligation to pay,
the medical or burial expenses incurred as a direct result of the
crime for the medical or burial expenses incurred in an amount not to
exceed the rates or limitations established by the board.
(10) The total award to or on behalf of the victim or a derivative
victim shall not exceed thirty-five thousand dollars ($35,000), and
may be increased only in accordance with this section.
(11) If the victim requests that the board give priority to
reimbursement of loss of wages, the board shall not pay medical
expenses or mental health counseling expenses except upon the request
of the victim or after determining that payment of these expenses
will not decrease the funds available to the victim for payment of
loss of wages.
(12) The board may authorize a direct cash payment to a provider
of services that are reimbursable pursuant to this article. However,
the board may not, without good cause, authorize a direct cash
payment to a provider over the objection of the victim or applicant.
(13) When a victim dies as a result of a crime and the crime
occurs in a residence, the board may reimburse any individual who
voluntarily, and without anticipation of personal gain, pays or
assumes the obligation to pay the reasonable costs to clean the scene
of the crime in an amount not to exceed one thousand dollars
($1,000). Services reimbursed pursuant to this subdivision shall be
performed by persons registered with the State Department of Health
Services as trauma scene waste practitioners in accordance with
Chapter 9.5 (commencing with Section 118321) of Part 14 of Division
104 of the Health and Safety Code.
(b) Assistance granted pursuant to this article shall not
disqualify an otherwise eligible victim or derivative victim from
participation in any other public assistance program.
(c) Cash payments made pursuant to this article may be on a
one-time or periodic basis. If periodic, the board may increase,
reduce, or terminate the amount of assistance according to the victim'
s or derivative victim's need, subject to the maximum limits provided
in this section.
(d) The board shall pay attorney's fees representing the
reasonable value of legal services rendered to the applicant, in an
amount equal to 10 percent of the amount of the award, or five
hundred dollars ($500), whichever is less for each victim and each
derivative victim. An attorney receiving fees from another source
may waive the right to receive fees under this section. Payments
under this section shall be in addition to any amount authorized or
ordered under subdivision (d) of Section 13969.1.
(e) No attorney shall charge, demand, receive, or collect any
amount for services rendered in connection with any proceedings under
this article except as awarded under this article.
(f) The maximum cash payments authorized in paragraph (10) of
subdivision (a) shall be increased to seventy thousand dollars
($70,000) if federal funds for those increases are available.
(g) Notwithstanding subdivisions (a) and (f), a victim injured
between January 1, 1985, and December 31, 1985, shall be entitled to
receive a maximum cash payment of forty-six thousand dollars
($46,000) if federal funds for these increases are available, but
only for costs in excess of limitations provided for in subdivision
(a) which are attributable to medical or medical-related expenses,
except for psychological or psychiatric treatment, or mental health
counseling services.
(h) Notwithstanding any conflicting provision of this chapter, the
board may make additional payments for purposes described in
paragraph (1) of subdivision (a) to any victim who filed an
application with the board on or after December 1, 1982, who was a
victim of a crime involving sexual assault, and who is a minor at the
time the additional payments pursuant to this subdivision are made.
The payments authorized by this subdivision shall not exceed the
limits imposed by subdivisions (a) and (j).
(i) Reimbursement for any medical or medical-related services
shall, if the victim's application has been approved, be paid by the
board within an average of 90 days from receipt of the claim for
payment. Payments to a medical or mental health provider under this
subdivision or paragraph (1) of subdivision (a) shall not be
discontinued prior to completion of any reevaluation. Whether or not
a reevaluation is obtained, if the board determines that payments to
a provider shall be discontinued, the board shall notify the
provider of their discontinuance within 30 days of its determination.
(j) (1) The board may establish maximum rates and service
limitations for reimbursement of medical and medical-related
expenses, including counseling expenses, for which restitution is
requested pursuant to this section. For mental health counseling
services, rates shall not exceed the statewide average. The
adoption, amendment, and repeal of these maximum rates shall not be
subject to the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Part 1). An informational copy of the maximum
rates shall be filed with the Secretary of State upon adoption by
the board. A provider who accepts payment from the program for a
service shall accept the program's rates as payment in full and shall
not accept any payment on account of the service from any other
source if the total of payments accepted would exceed the maximum
rate set by the board for that service.
(2) To assure service limitations that are uniform and appropriate
to the levels of treatment required by the victim or derivative
victim, the board may review all claims for these services as
necessary to ensure their medical necessity. The board may further
require additional documentation, information, or medical review of
cases of continuing treatment which are projected to exceed five
thousand dollars ($5,000) to determine the need to continue treatment
in excess of that amount. The board may accept or reject claims for
the amount in excess of five thousand dollars ($5,000) by applying
the same standards applicable to processing the initial claim or may
approve a continuing treatment regimen for a specific interval or
subject to periodic review as appropriate. All information requested
of the treating therapist shall be provided at no cost to the
applicant, the board, or to local victim centers, pursuant to
subdivision (b) of Section 13962. Requests for additional
information shall be made in a timely manner so as not to interfere
with necessary treatment.
(k) The authority provided by this section shall not be construed
to in any way diminish, enhance, or otherwise affect any authority
that the board may have under current law except as explicitly
provided in this section.
(l) The board, in its discretion, may make payments directly to
providers prior to verification.
(m) Notwithstanding paragraph (1) of subdivision (a), the board
may reimburse a victim or derivative victim for mental health
counseling in excess of that authorized by that paragraph if the
claim is based on dire or exceptional circumstances that require more
extensive treatment, as approved by the board.
(n) Notwithstanding paragraph (1) of subdivision (a), if, as of
December 31, 1993, a person has incurred mental health counseling
expenses pursuant to this article in excess of one-half of the amount
specified in that subdivision, the board may award, in addition to
amounts awarded for previously incurred expenses, an amount equal to
not more than one-half of the applicable maximum amount specified in
that paragraph or any additional amounts as the board determines is
necessary.
(o) The total award to or on behalf of a victim of a crime
committed in violation of subdivision (d) of Section 261.5 of the
Penal Code shall not exceed three thousand dollars ($3,000) for
mental health counseling expenses only.
(p) This section shall remain in effect only until January 1,
2004, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2004, deletes or extends
that date.
SEC. 97. Section 13965 of the Government Code, as amended by
Section 11.5 of Chapter 712 of the Statutes of 2001, is amended to
read:
13965. (a) If the application for assistance is approved, the
board shall determine what type of state assistance will best aid the
victim or derivative victim. The board may take any or all of the
following actions:
(1) Reimburse the following persons for the expense of their
outpatient mental health counseling when that mental health
counseling is necessary as a direct result of the crime:
(A) A victim in an amount not to exceed ten thousand dollars
($10,000).
(B) A derivative victim who is the surviving parent, sibling,
child, spouse, or fiance of a victim of a crime which directly
resulted in the death of the victim in an amount not to exceed ten
thousand dollars ($10,000).
(C) A derivative victim who is the primary caretaker of a minor
victim of sexual or physical abuse whose claim is not denied or
reduced pursuant to subdivision (b) or (d)
of Section 13964 in a total amount not to
exceed ten thousand dollars ($10,000) for not more than two
derivative victims described in this subparagraph.
(D) A derivative victim not eligible for reimbursement pursuant to
subparagraph (B) or (C) in an amount not to exceed three thousand
dollars ($3,000).
The board may authorize a direct cash payment to a provider of
psychological or psychiatric treatment or mental health counseling
services, including peer counseling services provided by a rape
crisis center as defined by Section 13837 of the Penal Code or to
either the victim or the derivative victim, equal to the pecuniary
loss attributable to medical or medical-related expenses, including
counseling, directly resulting from the injury. Reimbursement on the
initial claim for any psychological, psychiatric, or mental health
counseling services, including peer counseling services provided by a
rape crisis center, shall, if the application has been approved, be
paid by the board within 90 days of the date of receipt of the claim
for payment, with subsequent payments to be made to the provider
within one month of the receipt of a claim for payment. However, the
board may not authorize without good cause a direct cash payment to
a licensed health care provider or rape crisis center over the
objection of the applicant.
When a public agency, including a court or district attorney or a
police, county child protective services, or other state or local
governmental agency, refers a victim of crime to a private nonprofit
agency for treatment for that victim, the private nonprofit agency
shall be reimbursed for those services at the level of the normal and
customary fee charged by the private nonprofit agency to clients
with adequate means of payment for its services, except that this
reimbursement shall not exceed the maximum reimbursement rates set by
the board and may be made only to the extent that the victim
otherwise qualifies for services under the victims of crime program
and that other reimbursement or direct subsidies are not available to
serve the victim.
Payments authorized pursuant to this paragraph for peer counseling
services provided by a rape counseling center shall not exceed
fifteen dollars ($15) for each hour of services provided. Those
services shall be limited to individual, in-person counseling on a
face-to-face basis for a period not to exceed 10 weeks plus one
series of facilitated support group counseling sessions.
(2) Authorize a cash payment to the victim or derivative victim
equal to the pecuniary loss resulting from loss of wages pursuant to
Section 13965.1.
(3) Authorize a cash payment to a derivative victim for loss of
support pursuant to Section 13965.1.
(4) (A) Authorize a cash payment or reimbursement not to exceed
two thousand dollars ($2,000) to a victim of sexual assault or
domestic violence for expenses incurred in relocating, if the
expenses are determined by law enforcement to be necessary for the
personal safety of the victim or by a mental health treatment
provider to be necessary for the emotional well-being of the victim.
These expenses may include, but need not be limited to, all of the
following:
(i) Deposits for utilities and telephone service.
(ii) Deposits for rental housing, not to exceed the first and last
months' rent and a security deposit or two thousand dollars
($2,000), whichever is less.
(iii) Temporary lodging and food expenses, not to exceed one
thousand dollars ($1,000).
(iv) Clothing and other personal items, not to exceed five hundred
dollars ($500).
(B) The board shall develop procedures to ensure that the victim
is using the cash payment only for the purposes of this paragraph.
The procedures may include, but need not be limited to, requiring
copies of receipts, lease agreements, or other documents as
requested, or developing a method of direct payment to the landlord
or vendor.
(C) When a relocation payment or reimbursement is provided to a
victim of sexual assault or domestic violence, the victim shall agree
to not inform the offender, if the identity of the offender is known
to the victim, of the location of the victim's new residence and to
not allow the offender, if the identity of the offender is known to
the victim, on the premises at any time, or shall agree to seek a
restraining order against the offender, if the identity of the
offender is known to the victim.
(D) The board may authorize a cash payment or reimbursement
pursuant to this paragraph to victims of crimes other than domestic
violence if the expenses are determined by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(E) The cash payment or reimbursement made under this paragraph
shall only be awarded once to any victim, except that the board may,
under compelling circumstances, award a second cash payment or
reimbursement to the same victim if both of the following conditions
are met:
(i) The crime or series of crimes occurs more than three years
from the date of the crime giving rise to the initial relocation cash
payment or reimbursement.
(ii) The crime does not involve the same perpetrator.
(5) Authorize cash payments to or on behalf of the victim for job
retraining or similar employment-oriented rehabilitative services.
(6) (A) In the case of a victim of a crime that occurred in the
victim's residence, authorize reimbursement for the expense for
installing or increasing residential security, not to exceed one
thousand dollars ($1,000). Installing or increasing residential
security may include, but need not be limited to, both of the
following:
(i) Home security device or system.
(ii) Replacing or increasing the number of locks.
(B) Reimbursement under this paragraph shall be made upon
verification by law enforcement to be necessary for the personal
safety of the victim or by a mental health treatment provider to be
necessary for the emotional well-being of the victim.
(C) The board shall develop procedures to ensure that the victim
is using the reimbursement only for the purposes of this paragraph.
The procedures may include, but need not be limited to, requiring
copies of receipts, invoices, estimates, or other documents, or
developing a method for direct payment to the vendor.
(7) (A) In the case of a victim who is permanently disabled as a
direct result of the crime, whether the disability is partial or
total, authorize reimbursement for the expense of renovating or
retrofitting his or her residence or a vehicle, or both, to make the
residence, the vehicle, or both, accessible or the vehicle
operational by the victim. Reimbursement shall be made upon
verification that the expense is medically necessary.
(B) The board shall develop procedures to ensure that
reimbursement is made only for the purposes of this paragraph. The
procedures may include, but need not be limited to, requiring copies
of receipts, invoices, estimates, or other documents, or developing a
method for direct payment to the vendor.
(8) Obtain an independent examination and report from any provider
of psychological or psychiatric treatment or mental health
counseling services, if it believes there is a reasonable basis for
requesting an additional evaluation. In cases where the crime
involves sexual assault, the provider shall have expertise in the
needs of sexual assault victims. In cases where the crime involves
child abuse or molestation, the provider shall have expertise in the
needs of victims of child abuse or molestation, as appropriate. When
a reevaluation is obtained, payments shall not be discontinued prior
to completion of the reevaluation.
(9) When a victim dies as a direct result of a crime, the board
may reimburse any individual who voluntarily, and without
anticipation of personal gain, pays or assumes the obligation to pay,
the medical or burial expenses incurred as a direct result of the
crime for the medical or burial expenses incurred in an amount not to
exceed the rates or limitations established by the board.
(10) The total award to or on behalf of the victim or a derivative
victim shall not exceed thirty-five thousand dollars ($35,000), and
may be increased only in accordance with this section.
(11) If the victim requests that the board give priority to
reimbursement of loss of wages, the board shall not pay medical
expenses or mental health counseling expenses except upon the request
of the victim or after determining that payment of these expenses
will not decrease the funds available to the victim for payment of
loss of wages.
(12) The board may authorize a direct cash payment to a provider
of services that are reimbursable pursuant to this article. However,
the board may not, without good cause, authorize a direct cash
payment to a provider over the objection of the victim or applicant.
(13) When a victim dies as a result of a crime and the crime
occurs in a residence, the board may reimburse any individual who
voluntarily, and without anticipation of personal gain, pays or
assumes the obligation to pay the reasonable costs to clean the scene
of the crime in an amount not to exceed one thousand dollars
($1,000). Services reimbursed pursuant to this subdivision shall be
performed by persons registered with the State Department of Health
Services as trauma scene waste practitioners in accordance with
Chapter 9.5 (commencing with Section 118321) of Part 14 of Division
104 of the Health and Safety Code.
(b) Assistance granted pursuant to this article shall not
disqualify an otherwise eligible victim or derivative victim from
participation in any other public assistance program.
(c) Cash payments made pursuant to this article may be on a
one-time or periodic basis. If periodic, the board may increase,
reduce, or terminate the amount of assistance according to the victim'
s or derivative victim's need, subject to the maximum limits provided
in this section.
(d) The board shall pay attorney's fees representing the
reasonable value of legal services rendered to the applicant, in an
amount equal to 10 percent of the amount of the award, or five
hundred dollars ($500), whichever is less for each victim and each
derivative victim. An attorney receiving fees from another source
may waive the right to receive fees under this section. Payments
under this section shall be in addition to any amount authorized or
ordered under subdivision (d) of Section 13969.1.
(e) No attorney shall charge, demand, receive, or collect any
amount for services rendered in connection with any proceedings under
this article except as awarded under this article.
(f) The maximum cash payments authorized in paragraph (10) of
subdivision (a) shall be increased to seventy thousand dollars
($70,000) if federal funds for those increases are available.
(g) Notwithstanding subdivisions (a) and (f), a victim injured
between January 1, 1985, and December 31, 1985, shall be entitled to
receive a maximum cash payment of forty-six thousand dollars
($46,000) if federal funds for these increases are available, but
only for costs in excess of limitations provided for in subdivision
(a) which are attributable to medical or medical-related expenses,
except for psychological or psychiatric treatment, or mental health
counseling services.
(h) Notwithstanding any conflicting provision of this chapter, the
board may make additional payments for purposes described in
paragraph (1) of subdivision (a) to any victim who filed an
application with the board on or after December 1, 1982, who was a
victim of a crime involving sexual assault, and who is a minor at the
time the additional payments pursuant to this subdivision are made.
The payments authorized by this subdivision shall not exceed the
limits imposed by subdivisions (a) and (j).
(i) Reimbursement for any medical or medical-related services
shall, if the victim's application has been approved, be paid by the
board within an average of 90 days from receipt of the claim for
payment. Payments to a medical or mental health provider under this
subdivision or paragraph (1) of subdivision (a) shall not be
discontinued prior to completion of any reevaluation. Whether or not
a reevaluation is obtained, if the board determines that payments to
a provider shall be discontinued, the board shall notify the
provider of their discontinuance within 30 days of its determination.
(j) (1) The board may establish maximum rates and service
limitations for reimbursement of medical and medical-related
expenses, including counseling expenses, for which restitution is
requested pursuant to this section. For mental health counseling
services, rates shall not exceed the statewide average. The
adoption, amendment, and repeal of these maximum rates shall not be
subject to the Administrative Procedure Act (Chapter 3.5 (commencing
with Section 11340) of Part 1). An informational copy of the maximum
rates shall be filed with the Secretary of State upon adoption by
the board. A provider who accepts payment from the program for a
service shall accept the program's rates as payment in full and shall
not accept any payment on account of the service from any other
source if the total of payments accepted would exceed the maximum
rate set by the board for that service.
(2) To assure service limitations that are uniform and appropriate
to the levels of treatment required by the victim or derivative
victim, the board may review all claims for these services as
necessary to ensure their medical necessity. The board may further
require additional documentation, information, or medical review of
cases of continuing treatment which are projected to exceed five
thousand dollars ($5,000) to determine the need to continue treatment
in excess of that amount. The board may accept or reject claims for
the amount in excess of five thousand dollars ($5,000) by applying
the same standards applicable to processing the initial claim or may
approve a continuing treatment regimen for a specific interval or
subject to periodic review as appropriate. All information requested
of the treating therapist shall be provided at no cost to the
applicant, the board, or to local victim centers, pursuant to
subdivision (b) of Section 13962. Requests for additional
information shall be made in a timely manner so as not to interfere
with necessary treatment.
(k) The authority provided by this section shall not be construed
to in any way diminish, enhance, or otherwise affect any authority
that the board may have under current law except as explicitly
provided in this section.
(l) The board, in its discretion, may make payments directly to
providers prior to verification.
(m) Notwithstanding paragraph (1) of subdivision (a), the board
may reimburse a victim or derivative victim for mental health
counseling in excess of that authorized by that paragraph if the
claim is based on dire or exceptional circumstances that require more
extensive treatment, as approved by the board.
(n) Notwithstanding paragraph (1) of subdivision (a), if, as of
December 31, 1993, a person has incurred mental health counseling
expenses pursuant to this article in excess of one-half of the amount
specified in that subdivision, the board may award, in addition to
amounts awarded for previously incurred expenses, an amount equal to
not more than one-half of the applicable maximum amount specified in
that paragraph or any additional amounts as the board determines is
necessary.
(o) This section shall become operative on January 1, 2004.
SEC. 98. Section 14672.99 of the Government Code is amended to
read:
14672.99. (a) Notwithstanding Section 14670, the Director of
General Services, with the consent of the Department of the Youth
Authority, shall lease a five-acre portion of the Ione Youth Facility
as designated by the Department of the Youth Authority, for a term
not to exceed 30 years and at the rate of one dollar ($1) per year,
to the County of Amador on behalf of the Mother Lode Juvenile
Facility Authority for use as a regional juvenile detention facility.
(b) The lease shall provide that the property shall be leased "as
is" and that the state shall have no liability for repairs,
rehabilitation, or other improvements. It shall provide that the
lessee county or the authority shall complete the detention facility
not later than three years after the effective date of the lease, and
that the facility shall be operated by the authority pursuant to the
terms of the lease.
(c) The lease described in this section shall be exempt from the
requirements of Division 13 (commencing with Section 21000) of the
Public Resources Code.
(d) The Department of General Services shall be reimbursed for its
costs related to the lease, including, but not limited to, any
survey costs, title transfer fees, and department staff time.
(e) For purposes of this section, "Mother Lode Juvenile Facility
Authority" means the joint powers authority comprising the Counties
of Amador, Calaveras, and Tuolumne.
(f) The Legislature finds and declares that the lease of a portion
of the Ione Youth Facility to the County of Amador on behalf of the
Mother Lode Juvenile Facility Authority for use as a juvenile
detention facility pursuant to this section is for a statewide public
purpose.
SEC. 99. Section 14684 of the Government Code is amended to read:
14684. (a) The department, in consultation with the State Energy
Resources Conservation and Development Commission, shall ensure that
solar energy equipment is installed, no later than January 1, 2007,
on all state buildings and state parking facilities, where feasible.
The department shall establish a schedule designating when solar
energy equipment will be installed on each building and facility,
with priority given to buildings and facilities where installation is
most feasible, both for state building and facility use and
consumption and local publicly owned electric utility use, where
feasible.
(b) Solar energy equipment shall be installed where feasible as
part of the construction of all state buildings and state parking
facilities that commences after December 31, 2002.
(c) For purposes of this section, it is feasible to install solar
energy equipment if adequate space on a building is available, and if
the solar energy equipment is cost-effective.
(d) No part of this section shall be construed to exempt the state
from any applicable fee or requirement imposed by the Public
Utilities Commission.
(e) The department may adopt regulations for the purposes of this
section as emergency regulations in accordance with Chapter 3.5
(commencing with Section 11340) of Part 1. For purposes of Chapter
3.5 (commencing with Section 11340) of Part 1, including, but not
limited to, Section 11349.6, the adoption of the regulations shall be
considered by the Office of Administrative Law to be necessary for
the immediate preservation of the public peace, health, safety, and
general welfare. Notwithstanding the 120-day limit specified in
subdivision (e) of Section 11346.1, the regulations shall be repealed
180 days after their effective date, unless the department complies
with Chapter 3.5 (commencing with Section 11340) of Part 1 as
provided in subdivision (e) of Section 11346.1.
(f) For purposes of this section, the following terms have the
following meanings:
(1) "Cost-effective" means that the present value of the savings
generated over the life of the solar energy system, including
consideration of the value of the energy produced during peak and
off-peak demand periods and the value of a reliable energy supply not
subject to price volatility, shall exceed the present value cost of
the solar energy equipment by not less than 10 percent. The present
value cost of the solar energy equipment does not include the cost of
unrelated building components. The department, in making the
present value assessment, shall obtain interest rates, discount
rates, and consumer price index figures from the Treasurer, and shall
take into consideration air emission reduction benefits.
(2) "Local publicly owned electric utility" means a local publicly
owned electric utility as defined in Section 9604 of the Public
Utilities Code.
(3) "Solar energy equipment" means equipment whose primary purpose
is to provide for the collection, conversion, storage, or control of
solar energy for electricity generation.
SEC. 100. Section 19574 of the Government Code is amended to read:
19574. (a) The appointing power, or its authorized
representative, may take adverse action against an employee for one
or more of the causes for discipline specified in this article.
Adverse action is valid only if a written notice is served on the
employee prior to the effective date of the action, as defined by
board rule. The notice shall be served upon the employee either
personally or by mail and shall include: (1) a statement of the
nature of the adverse action; (2) the effective date of the action;
(3) a statement of the reasons therefor in ordinary language; (4) a
statement advising the employee of the right to answer the notice
orally or in writing; and (5) a statement advising the employee of
the time within which an appeal must be filed. The notice shall be
filed with the board not later than 15 calendar days after the
effective date of the adverse action.
(b) Effective January 1, 1996, this subdivision shall apply only
to state employees in State Bargaining Unit 5. This section shall
not apply to discipline as defined by Section 19576.1.
(c) This subdivision shall apply only to state employees in State
Bargaining Unit 8. This section shall not apply to minor discipline,
as defined by Section 19576.5 or a memorandum of understanding.
(d) This subdivision shall apply only to state employees in State
Bargaining Units 8, 12, and 13. If the provisions of this section
are in conflict with the provisions of a memorandum of understanding
reached pursuant to Section 3517.5, the memorandum of understanding
shall be controlling without further legislative action, except that
if the provisions of the memorandum of understanding require the
expenditure of funds, the provisions may not become effective unless
approved by the Legislature in the annual Budget Act.
SEC. 101. Section 20423.5 of the Government Code is amended to
read:
20423.5. "Local safety member" also includes any park ranger
employed by a contracting agency who is a peace officer as defined in
subdivision (b) of Section 830.31 of the Penal Code and whose
primary responsibility is maintaining the peace and whose duties
include law enforcement, emergency medical care first response, or
fire suppression and prevention.
This section shall not apply to any contracting agency nor to the
employees of a contracting agency until the agency elects to be
subject to this section by amendment to its contract with the board
pursuant to Section 20474, or by express provision within its
contract with the board.
SEC. 102. Section 20429 of the Government Code is amended to read:
20429. "Local police officer" also includes any officer or
employee of a contracting agency other than a city or a county who is
a peace officer as defined in the Penal Code and whose principal
duties consist of active law enforcement but excluding clerical
personnel or those whose principal duties are that of communication
officer, identification officer, machinist, mechanic, security
officer or are otherwise not clearly within the scope of active law
enforcement, even though the person is subject to occasional call, or
is occasionally called upon to perform duties within the scope of
active law enforcement.
The provisions of this section shall apply to any contracting
agency that is not a city or county with respect to any of its
employees who were local police officers within the meaning of
Section 20425 prior to its amendment by Chapter 625 of the Statutes
of 1975 and in employment on January 1, 1976.
The provisions of this section shall not otherwise apply to the
employees of any contracting agency nor to any contracting agency
until the contracting agency elects to be subject to the provisions
of this section by amendment to its contract with the board made as
provided in Section 20474 or by express provision in its contract
with the board.
SEC. 103. Section 20683.2 of the Government Code is amended to
read:
20683.2. (a) Notwithstanding any provisions of Section 20683 to
the contrary, the normal rate of contribution for state safety
members subject to Section 21369.1 in State Bargaining Units 7 and 8
shall be the rate specified in this section.
(b) (1) Subject to the provisions of subdivision (e), from August
31, 2001, to June 30, 2002, inclusive, the normal rate of
contribution shall be 3.5 percent of the compensation in excess of
three hundred seventeen dollars ($317) per month paid that member for
service rendered.
(2) Subject to the provisions of subdivision (e), from July 1,
2002, to June 30, 2003, inclusive, the normal rate of contribution
shall be 1 percent of the compensation in excess of three hundred
seventeen dollars ($317) per month paid that member for service
rendered.
(c) This section does not apply to members employed by the
California State University or the University of California.
(d) If the membership of State Bargaining Unit 7 or 8 does not
ratify its respective memorandum of understanding on or before
December 15, 2001, the normal contribution rate for the members of
that specific state bargaining unit shall be restored to the level in
effect on August 30, 2001, as set forth in Section 20683, beginning
with the December 2001 pay period for the compensation paid that
member for service.
(e) This subdivision shall apply to state employees in State
Bargaining Units 7 and 8. If the provisions of this section are in
conflict with the provisions of a memorandum of understanding reached
pursuant to Section 3517.5, the memorandum of understanding shall be
controlling without further legislative action, except that if the
provisions of a memorandum of understanding require the expenditure
of funds, the provisions may not become effective unless approved by
the Legislature in the annual Budget Act.
(f) This section shall become inoperative on July 1, 2003, and, as
of January 1, 2004, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2004, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 104. Section 20816 of the Government Code is amended
to read:
20816. (a) Notwithstanding any other provision of this part, all
assets of an employer shall be used in the determination of the
employer contribution rate for the membership comprising the basis of
the computation. Assets held shall be recognized over the same
funding period used to amortize unfunded accrued actuarial
obligations whether in excess of the accrued actuarial obligation or
not, using the entry age normal funding method.
(b) On and after January 1, 1999, contracting agencies for which
the actuarial value of assets exceeds the present value of benefits
as of the most recently completed valuation, as determined by the
chief actuary, may request that the board transfer employer assets to
member-accumulated contribution accounts to satisfy all member
contributions required by this part. That transfer shall be over a
12-month period provided the actuarial value of assets exceeds the
present value of benefits. In determining the present value of
benefits and the actuarial value of assets for purposes of this part,
liabilities and assets attributed to the 1959 survivor allowance
shall not be included.
(c) On and after January 1, 2002, any contracting agency for which
the actuarial value of assets exceeds the present value of benefits
as of the most recently completed valuation, as determined by the
chief actuary, may request that the board transfer from the
contracting agency's employer account excess assets, as determined by
the board subject to the requirements and limitations of Section 420
of the Internal Revenue Code (26 U.S.C. Sec. 420), to a retiree
health account established by the board, in its discretion, in the
contracting agency's employer account pursuant to Section 401(h) of
the Internal Revenue Code (26 U.S.C. Sec. 401(h)) for the purpose of
providing health benefits to the contracting agency's retirees and
their covered dependents. The board may, in its discretion, transfer
excess assets from the contracting agency's employer account to that
contracting agency's retiree health account within that agency's
employer account, provided the transfer meets the conditions of a
qualified transfer pursuant to Section 420 of the Internal Revenue
Code (26 U.S.C. Sec. 420). The transferred assets shall be used
solely for the payment of current retiree health liabilities. A
qualified transfer may be made only once each year. The board may
adopt regulations necessary to implement this subdivision.
Notwithstanding any other provision of law, the regulations may
provide for the nonforfeiture of accrued pension benefits of
participants and beneficiaries of a plan from which excess assets are
transferred to the extent necessary for the transfer to meet the
conditions of a qualified transfer pursuant to Section 420 of the
Internal Revenue Code (26 U.S.C. Sec. 420), and may include any other
provision necessary under Section 420 of the Internal Revenue Code
(26 U.S.C. Sec. 420) or Section 401(h) of the Internal Revenue Code
(26 U.S.C. Sec. 401(h)) to accomplish the purposes of this
subdivision.
(d) For the purpose of this section, "employer" means any
contracting agency, the state, or a school employer.
(e) The actuarial report in the annual financial report shall also
express the effect upon employer contribution rates of this section
and of the recognition of net unrealized gains and losses.
SEC. 105. Section 21327 of the Government Code is amended to read:
21327. In addition to the increase in allowance authorized and
granted pursuant to provisions of Section 21313, and notwithstanding
the limitation on those increases imposed by this article, effective
January 1, 1980, or the date this section becomes applicable to the
contracting agency, the monthly allowance paid with respect to a
state or local member, other than a school member, who retired or
died prior to January 1, 1975, shall be increased by the percentage
set forth opposite the year of retirement or death in the following
schedule:
Period during which retirement
or death occurred Percentage
12 months ending December 31, 1967 ....... 1.51
12 months ending December 31, 1968 ....... 1.26
12 months ending December 31, 1969 ....... 1.86
12 months ending December 31, 1970 ....... 2.55
6 months ending June 30, 1971 ........... 1.91
6 months ending December 31, 1971 ....... 7.05
12 months ending December 31, 1972 ....... 6.76
12 months ending December 31, 1973 ....... 4.45
6 months ending June 30, 1974 ........... 0.47
6 months ending December 31, 1974 ....... 1.31
The percentage shall be applied to the allowance payable on
January 1, 1980, or the date this section becomes applicable to the
contracting agency, and the allowance as so increased shall be paid
for time on and after the date and until the first day of April
immediately following the date of application. The base allowance
shall be the allowance as increased under this section. The base
year for annual adjustments of allowances increased by this section
shall be the calendar year preceding the year of increase if the
increase date is after April 1st of any calendar year, and the second
calendar year preceding the year of increase if the increase date is
on or before April 1st of any calendar year.
This section shall not apply to any contracting agency unless the
agency elected to be subject to the provisions of this section in its
contract with the board on or before December 31, 2001.
SEC. 106. Section 21354.3 of the Government Code is amended to
read:
21354.3. (a) The combined current and prior service pensions for
a local miscellaneous member is a pension derived from the
contributions of the employer sufficient, when added to the service
retirement annuity that is derived from the accumulated normal
contributions of the member at the date of retirement, to equal the
fraction of one-fiftieth of the member's final compensation set forth
opposite the member's age at retirement, taken to the preceding
completed quarter year, in the following table, multiplied by the
number of years of current and prior service except service in a
category of membership other than that of local miscellaneous member
with which the member is entitled to be credited at retirement:
Age at Fraction
Retirement
50 ......................... 1.0000
50 1/4 ........................ 1.0125
50 1/2 ........................ 1.0250
50 3/4 ........................ 1.0375
51 ......................... 1.0500
51 1/4 ........................ 1.0625
51 1/2 ........................ 1.0750
51 3/4 ........................ 1.0875
52 ......................... 1.1000
52 1/4 ........................ 1.1125
52 1/2 ........................ 1.1250
52 3/4 ........................ 1.1375
53 ......................... 1.1500
53 1/4 ........................ 1.1625
53 1/2 ........................ 1.1750
53 3/4 ........................ 1.1875
54 ......................... 1.2000
54 1/4 ........................ 1.2125
54 1/2 ........................ 1.2250
54 3/4 ........................ 1.2375
55 ......................... 1.2500
55 1/4 ........................ 1.2625
55 1/2 ........................ 1.2750
55 3/4 ........................ 1.2875
56 ......................... 1.3000
56 1/4 ........................ 1.3125
56 1/2 ........................ 1.3250
56 3/4 ........................ 1.3375
57 ......................... 1.3500
57 1/4 ........................ 1.3625
57 1/2 ........................ 1.3750
57 3/4 ........................ 1.3875
58 ......................... 1.4000
58 1/4 ........................ 1.4125
58 1/2 ........................ 1.4250
58 3/4 ........................ 1.4375
59 ......................... 1.4500
59 1/4 ........................ 1.4625
59 1/2 ........................ 1.4750
59 3/4 ........................ 1.4875
60 and over ................... 1.5000
(b) The fraction specified in the above table shall be reduced by
one-third as applied to that part of final compensation that does not
exceed four hundred dollars ($400) per month for all services of a
member any of whose service has been included in the federal system.
This reduction shall not apply to a member employed by a contracting
agency that enters into a contract after July 1, 1971, and who
elects not to be subject to this subdivision or with respect to
service rendered after the termination of coverage under the federal
system with respect to the coverage group to which the member
belongs.
(c) This section shall supersede Sections 21353 and 21354 with
respect to any local miscellaneous member who is employed by a
contracting agency on or after the date this section becomes
applicable to the contracting agency.
(d) This section shall not apply to a contracting agency nor its
employees until the contracting agency elects to make all local
miscellaneous members subject to it by amendment to its contract made
in the manner prescribed for approval of contracts or in the case of
a new contract, by express provision of the contract. The operative
date of this section with respect to a local miscellaneous member
shall be the effective date of the amendment to his or her employer's
contract electing to be subject to this section.
SEC. 107. Section 21354.4 of the Government Code is amended to
read:
21354.4. (a) The combined current and prior service pensions for
a local miscellaneous member is a pension derived from the
contributions of the employer sufficient, when added to the service
retirement annuity that is derived from the accumulated normal
contributions of the member at the date of retirement, to equal the
fraction of one-fiftieth of the member's final compensation set forth
opposite the member's age at retirement, taken to the preceding
completed quarter year, in the following table, multiplied by the
number of years of current and prior service except service in a
category of membership other than that of local miscellaneous member
with which the member is entitled to be credited at retirement:
Age at
Retirement Fraction
50 ................................ 1.0000
50 1/4 ............................... 1.0125
50 1/2 ............................... 1.0250
50 3/4 ............................... 1.0375
51 ............................... 1.0500
51 1/4 ............................... 1.0625
51 1/2 ............................... 1.0750
51 3/4 ............................... 1.0875
52 ................................ 1.1000
52 1/4 ............................... 1.1125
52 1/2 ............................... 1.1250
52 3/4 ............................... 1.1375
53 ................................ 1.1500
53 1/4 ............................... 1.1625
53 1/2 ............................... 1.1750
53 3/4 ............................... 1.1875
54 ................................ 1.2000
54 1/4 ............................... 1.2125
54 1/2 ............................... 1.2250
54 3/4 ............................... 1.2375
55 and over .......................... 1.2500
(b) The fraction specified in the above table shall be reduced by
one-third as applied to that part of final compensation that does not
exceed four hundred dollars ($400) per month for all service of a
member any of whose service has been included in the federal system.
This reduction shall not apply to a member employed by a contracting
agency that enters into a contract after July 1, 1971, and who
elects not to be subject to this subdivision or with respect to
service rendered after the termination of coverage under the federal
system with respect to the coverage group to which the member
belongs.
(c) This section shall supersede Sections 21353 and 21354 with
respect to any local miscellaneous member who is employed by a
contracting agency on or after the date this section becomes
applicable to the contracting agency.
(d) This section shall not apply to a contracting agency nor its
employees until the contracting agency elects to make all local
miscellaneous members subject to it by amendment to its contract made
in the manner prescribed for approval of contracts or in the case of
a new contract, by express provision of the contract. The operative
date of this section with respect to a local miscellaneous member
shall be the effective date of the amendment to his or her employer's
contract electing to be subject to this section.
SEC. 108. Section 21354.5 of the Government Code is amended to
read:
21354.5. (a) The combined current and prior service pensions for
a local miscellaneous member is a pension derived from the
contributions of the employer sufficient, when added to the service
retirement annuity that is derived from the accumulated normal
contributions of the member at the date of retirement, to equal the
fraction of one-fiftieth of the member's final compensation set forth
opposite the member's age at retirement, taken to the preceding
completed quarter year, in the following table, multiplied by the
number of years of current and prior service, except service in a
category of membership other than that of a local miscellaneous
member, with which the member is entitled to be credited at
retirement:
Age at
Retirement Fraction
50 .......................................... 1.0000
50 1/4 ......................................... 1.0175
50 1/2 ......................................... 1.0350
50 3/4 ......................................... 1.0525
51 .......................................... 1.0700
51 1/4 ......................................... 1.0875
51 1/2 ......................................... 1.1050
51 3/4 ......................................... 1.1225
52 .......................................... 1.1400
52 1/4 ......................................... 1.1575
52 1/2 ......................................... 1.1750
52 3/4 ......................................... 1.1925
53 .......................................... 1.2100
53 1/4 ......................................... 1.2275
53 1/2 ......................................... 1.2450
53 3/4 ......................................... 1.2625
54 .......................................... 1.2800
54 1/4 ......................................... 1.2975
54 1/2 ......................................... 1.3150
54 3/4 ......................................... 1.3325
55 and over .................................... 1.3500
(b) The fractions specified in the above table shall be reduced by
one-third as applied to that part of final compensation that does
not exceed four hundred dollars ($400) per month for all service of a
member any of whose service has been included in the federal system.
This reduction shall not apply to a member employed by a
contracting agency that enters into a contract after July 1, 1971,
and elects not to be subject to this subdivision or with respect to
service rendered after the termination of coverage under the federal
system with respect to the coverage group to which the member
belongs.
(c) This section shall supersede Sections 21353 and 21354 with
respect to any miscellaneous member who is employed by a contracting
agency on or after the date this section becomes applicable to the
contracting agency.
(d) This section shall not apply to a contracting agency nor its
employees until the contracting agency elects to make all local
miscellaneous members subject to it by amendment to its contract made
in the manner prescribed for approval of contracts or in the case of
a new contract, by express provision of the contract. The operative
date of this section with respect to a local miscellaneous member
shall be the effective date of the amendment to his or her employer's
contract electing to be subject to this section.
SEC. 109. Section 21363 of the Government Code is amended to read:
21363. (a) The combined current and prior service pensions for
state peace officer/firefighter members subject to this section with
respect to state peace officer/firefighter service and the combined
current and prior service pensions for local safety members with
respect to local safety service rendered to a contracting agency that
is subject to this section is a pension derived from the
contributions of the employer sufficient when added to the service
retirement annuity that is derived from the accumulated normal
contributions of the state peace officer/firefighter or local safety
member at the date of his or her retirement to equal the fraction of
one-fiftieth of his or her final compensation set forth opposite his
or her age at retirement taken to the preceding completed quarter
year, in the following table, multiplied by the number of years of
state peace officer/firefighter service or local safety service
subject to this section with which he or she is credited at
retirement:
Age at
Retirement Fraction
50 ................................ 1.0000
50 1/4 ............................... 1.0125
50 1/2 ............................... 1.0250
50 3/4 ............................... 1.0375
51 ................................ 1.0500
51 1/4 ............................... 1.0625
51 1/2 ............................... 1.0750
51 3/4 ............................... 1.0875
52 ................................ 1.1000
52 1/4 ............................... 1.1125
52 1/2 ............................... 1.1250
52 3/4 ............................... 1.1375
53 ................................ 1.1500
53 1/4 ............................... 1.1625
53 1/2 ............................... 1.1750
53 3/4 ............................... 1.1875
54 ................................ 1.2000
54 1/4 ............................... 1.2125
54 1/2 ............................... 1.2250
54 3/4 ............................... 1.2375
55 and over .......................... 1.2500
(b) (1) In no event shall the current service pension and the
combined current and prior service pensions under this section for
all service to all employers exceed an amount that, when added to the
service retirement annuity related to that service, equals 75
percent of final compensation.
(2) For state members, with respect to service for all state
employers under this section, the benefit shall not exceed:
(A) Eighty percent of final compensation for state members who
retire on or after January 1, 1995.
(B) Eighty-five percent of final compensation for state peace
officer/firefighter members in State Bargaining Units 6 and 8 who
retire on or after January 1, 1999, and prior to January 1, 2000.
(C) Ninety percent of final compensation for state peace
officer/firefighter members who retire on or after January 1, 2000.
(3) For local safety members who retire on or after January 1,
2000, the benefit shall not exceed 85 percent of final compensation.
If the pension relates to service to more than one employer, or this
section and Section 21369, and would otherwise exceed that maximum,
the pension payable with respect to each section or employer shall be
reduced in the same proportion as the allowance bears to the total
allowance computed as though there were no limit, so that the total
of the pensions shall equal the maximum. Where a state or local
member retiring on or after January 1, 1995, has service under this
section with both state and local agency employers, the higher
maximum shall apply and the additional benefit, if any, shall be
funded by increasing the member's pension payable with respect to the
employer for whom the member performed the service subject to the
higher maximum.
(c) The Legislature reserves, with respect to any member subject
to this section, the right to provide for the adjustment of
industrial disability retirement allowances because of earnings of a
retired person and modification of the conditions and qualifications
required for retirement for disability as it may find appropriate
because of the earlier age of service retirement made possible by the
benefits under this section.
(d) This section may be applied to related supervisory classes or
confidential positions for the respective bargaining units specified
in this section.
(e) (1) This section shall be operative with respect to state
peace officer/firefighter members in Corrections Bargaining Unit No.
6, Protective Services and Public Safety Bargaining Unit No. 7, or
Firefighters Bargaining Unit No. 8, in accordance with a memorandum
of understanding reached between the state and the exclusive
bargaining agent in the respective unit pursuant to Chapter 10.3
(commencing with Section 3512) of Division 4 of Title 1.
(2) This section also shall be operative with respect to the state
peace officer/firefighter members employed by a California State
University police department who are in Public Safety Unit No. 8 in
accordance with a memorandum of understanding reached between the
Trustees of the California State University and the recognized
employee organization pursuant to Chapter 12 (commencing with Section
3560) of Division 4 of Title 1.
(3) This section shall also be operative with respect to a "state
peace officer/firefighter member" defined in subdivision (a) of
Section 20396 if authorized by, and in accordance with, a memorandum
of understanding reached between the Trustees of the California State
University and the recognized employee organization pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1.
(4) Nothing in this section or in any other provision of law
affected by Chapter 1320 of the Statutes of 1984 or Chapter 234 of
the Statutes of 1986 shall be construed as authorizing any future
negotiation with respect to whether or not any bargaining unit
specified in this section whose memorandum of understanding was
previously approved by the Legislature pursuant to law and this
section, shall continue to remain within the state peace
officer/firefighter membership category.
(5) The operative date of this section with respect to members in
each of the bargaining units specified in this section shall be as
provided for in the memorandum of understanding.
(6) With the exception of state peace officer/firefighter members
for service rendered for the California State University or the
legislative or judicial branch of government, this section shall
apply to state peace officer/firefighter members who are not employed
by the state on or after January 1, 2000.
(f) This section shall be known as, and may be cited as, the State
Peace Officers' and Fire Fighters' Retirement Act.
(g) The Legislature reserves the right to subsequently modify or
amend this part in order to completely effectuate the intent and
purposes of this section and the right to not provide any new
comparable advantages if disadvantages to employees result from any
modification or amendment.
(h) This section shall not apply to a contracting agency nor its
employees until, first, it is agreed to in a written memorandum of
understanding entered into by an employer and representatives of
employees and, second, the contracting agency elects to be subject to
it by amendment to its contract made in the manner prescribed for
approval of contracts or in the case of a new contract, by express
provision of the contract. The operative date of this section with
respect to a local safety member shall be the effective date of the
amendment to his or her employer's contract electing to be subject to
this section. However, this section shall not apply to any local
safety member in the employ of an employer not subject to this
section on January 1, 2000.
SEC. 110. Section 21423 of the Government Code is amended to read:
21423. The disability retirement pension, other than an
industrial disability retirement pension, for a member, other than a
member who is subject to Section 21424 or 21427, shall be such an
amount as with that portion of his or her annuity provided by his or
her accumulated normal contributions, shall make his or her
disability retirement allowance equal to one of the following:
(a) Ninety percent of one-fiftieth of his or her final
compensation multiplied by the number of years of service credited to
him or her.
(b) If the disability retirement allowance computed under
subdivision (a) does not exceed one-third of his or her final
compensation, 90 percent of one-fiftieth of his or her final
compensation multiplied by the number of years of service that would
be creditable to him or her if his or her service were to continue
until attainment by him or her of the age of 60 years, but in that
case the retirement allowance shall not exceed one-third of final
compensation.
This subdivision is not applicable to members who are not
entitled, at the time of retirement, to be credited with at least 10
years of state service.
(c) If qualified for service retirement, the member shall receive
his or her service retirement allowance if that allowance is greater
than the disability retirement allowance provided by this section.
SEC. 111. Section 21661 of the Government Code is amended to read:
21661. (a) The board shall contract with carriers offering
long-term care insurance plans and enter into health care service
plan contracts covering long-term care.
The long-term care insurance plans and health care service plan
contracts covering long-term care shall be made available
periodically during open enrollment periods determined by the board.
(b) The board shall
award contracts to carriers who are qualified to provide long-term
care benefits, and may develop and administer self-funded long-term
care insurance plans. The board may offer one or more long-term care
insurance plans or health care service plan contracts covering
long-term care and may offer service or indemnity-type plans.
(c) The long-term care insurance plans and health care service
plan contracts covering long-term care shall include home, community,
and institutional care and shall, to the extent determined by the
board, provide substantially equivalent coverage to that required
under Chapter 2.6 (commencing with Section 10230) of Part 2 of
Division 2 of the Insurance Code, if the carrier has been approved by
the Department of Managed Health Care pursuant to Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code.
(d) The classes of persons who shall be eligible to enroll are:
(1) Active and retired members and annuitants of the Public
Employees' Retirement System, and their spouses, their parents, their
siblings, and their spouses' parents.
(2) Active and retired members and annuitants of any county or
district subject to the County Employees' Retirement Law of 1937, and
their spouses, their parents, their siblings, and their spouses'
parents.
(3) Active and retired members and annuitants of the State
Teachers' Retirement System, and their spouses, their parents, their
siblings, and their spouses' parents.
(4) Active employees and retirees and annuitants of any public
agency that is a contracting agency under this part or Part 5
(commencing with Section 22751), and their spouses, their parents,
their siblings, and their spouses' parents.
(5) Active and retired members and annuitants of the Judges'
Retirement System, and their spouses, their parents, their siblings,
and their spouses' parents.
(6) Active and retired members and annuitants of the Judges'
Retirement System II, and their spouses, their parents, their
siblings, and their spouses' parents.
(7) Active and retired members and annuitants of the Legislators'
Retirement System, and their spouses, their parents, their siblings,
and their spouses' parents.
(8) Members of the California Assembly and Senate and their
spouses, their parents, their siblings, and their spouses' parents.
(9) Active and retired members and annuitants, and other classes
of employees of other public employee retirement systems or public
employers as the board determines may be eligible under the standards
the board may prescribe, and their spouses, their parents, their
siblings, and their spouses' parents.
(10) Active employees and retirees and annuitants of any agency
specified in paragraphs (1) through (9) who reside in the United
States, its territories and possessions, or in a country in which a
provider network can be established comparable in quality and
effectiveness to those established in the United States.
(e) Any California public agency or retirement system may contract
with the board to extend the provisions of this article to its
active and retired employees and annuitants.
(f) Irrespective of paragraphs (1) through (10), inclusive, of
subdivision (d), no person shall be enrolled unless he or she meets
the eligibility and underwriting criteria established by the board.
(g) Irrespective of paragraphs (1) through (10), inclusive, of
subdivision (d), enrollment of active employees of the State of
California shall be subject to Section 19867.
(h) The board shall establish eligibility criteria for enrollment,
establish appropriate underwriting criteria for potential enrollees,
define the scope of covered benefits, define the criteria to receive
benefits, and set any other standards as needed. As used in this
section, "sibling" shall mean a sibling who is at least 18 years of
age.
(i) The full cost of enrollment in a long-term care insurance plan
or in health care service plan contracts covering long-term care
shall be paid by the enrollees.
(j) The long-term care insurance plans and health care service
plan contracts covering long-term care shall not become part of, or
subject to, the retirement or health benefits programs administered
by the system.
(k) For any self-funded long-term care plan developed by the
board, the premiums shall be deposited in the Public Employees'
Long-Term Care Fund.
SEC. 112. Section 30071 of the Government Code is amended to read:
30071. If any funds made available pursuant to Section 30061 or
30070, or pursuant to Item 8100-102-0001, 9210-106-0001, or
9210-108-0001 of Section 2.00 of the Budget Act of 2001 (Chapter 106
of the Statutes of 2001), or an appropriation for the same purpose in
a subsequent Budget Act, are used to fund the surveillance or
monitoring of persons, the use of those funds shall comply with both
of the following requirements:
(a) The funds may only be used by law enforcement personnel or
employees of governmental agencies or other entities, either public
or private, for video surveillance or monitoring when there is an
articulable suspicion that the persons who are the target of the
surveillance or monitoring are engaging or have engaged in illegal
conduct.
(b) The funds may not be used for any video surveillance or
monitoring of the general population.
SEC. 113. Section 31461.45 of the Government Code is amended to
read:
31461.45. (a) This section applies only to a county of the first
class, as defined by Section 28020.
(b) "Compensation earnable" in a county of the first class shall
include only those items of remuneration specifically included as a
result of the court-approved settlement in (1) the consolidated cases
of Los Angeles County Professional Peace Officers' Association, et
al. v. Board of Retirement, Los Angeles County Employees' Retirement
Association (Los Angeles County Superior Court, Case No. BS 051355)
and Milton Cohen v. Board of Retirement, Los Angeles County Employees'
Retirement Association (Los Angeles County Superior Court, Case No.
BS 051774), (2) the case of Los Angeles County Fire Department
Association of Chiefs, et al. v. Board of Retirement, Los Angeles
County Employees' Retirement Association, County of Los Angeles (Los
Angeles County Superior Court, Case No. BS 057432), and (3) the case
of Cecil Bugh v. Board of Retirement, Los Angeles County Employees'
Retirement System (Los Angeles County Superior Court, Case No. BS
055611), all of which were included in Coordination Proceeding
Special Title (Rule 1550(b)), Retirement Cases, Judicial Council
Coordination Proceeding No. 4049, even if a final judicial
determination in that coordinated case, or any subsequent case,
should conclude that any additional item of remuneration must be
included in that definition with respect to any other county. Those
items of remuneration in addition to base salary and the pensionable
portion, if any, of cafeteria plan contributions, are set forth in
Resolution No. 01-001, adopted by the board of retirement on or
before the effective date of this section and shall include only the
following:
Earnings
Code No. Title
099 Patrol Station Retention Bonus
358 Temporary Promotion Bonus
359 Lifeguard Paramedic, Catalina
503 Uniform Allowance
504 Night Shift Differential
505 Coroner's Inquest Reporter
507 CoGeneration or HydroElectric Ops and Mtce
508 Henninger Flats Watchman
509 Freezer Work
510 Department Head Merit
511 Board of Supervisors Performance Lump Sum
512 Fire Suppression Transportation Truck Driver
514 Backhoe Operator
516 Explosives Work
517 Evening Shift Differential
518 Power Equipment Repair, Snow Conditions
519 Engineering Employees, Hazard Pay
520 Home Care Compensation
522 Custodian Acting as Watchman
523 DPD Deputy Director Recruitment Incentive
525 Contracting and Productivity Improvement Incentive for
Managers
528 WEBCOM Press Operator
529 Power Equipment Operator, Fire Suppression
530 RN Extra Weekends Worked
531 Standby
532 Additional Responsibilities or Exceptional Performance
533 Power Sweeper Operator in Emergency Conditions
534 Power Plant Relief Engineer
535 Clinic Physician, First Hour and One-Half
536 Consulting Specialist, MD, & Mental Health Consultant,
MD, First and Fifth Hours
538 RN Assigned as Acting or Relief Charge Nurse
539 RN Weekend Differential
540 Relief Nurse Holiday Differential (Hourly Item)
541 Relief Nurse Weekend Differential (Hourly Item)
544 Appraisers Laundry and Dry Cleaning Allowance
545 Heavy Duty Tow Truck Driver
546 Slurry Seal Truck Driver
547 Lifeguard Paramedic-Shift
548 Lifeguard Paramedic-Hourly
550 Incentive Awards for Medi-Cal Reimbursements, Health
Services
551 Group Incentive Award, Treasurer Tax Collector
553 Pioneer Excavation, Tunnel Operations, Fire Suppression
and Snow Removal-Construction Inspection and
Surveying Groups
554 Pioneer Excavation, Tunnel Operations, Fire Suppression
and Snow Removal
555 Scaffold or Swing Stage, 30 Feet Above Grade
556 High Scale and Rigging Operations, General
557 Evening Shift, Med Tech
558 Night Shift, Med Tech
565 Paramedic Recertification Bonus
567 Deputy Sheriff Reserve Annual Compensation
570 Home Care Program Standby
571 CSW Licensure Supervision
572 MOU Lump Sum Bonus
601 Lifeguard Paramedic, Relief
602 Supervising Transportation Deputy Performing Dispatcher
Duties
603 Automotive Service Excellence Certificates
604 RN Mobile Intensive Care Certification
605 Custodian Floor Waxing Bonus
606 Fire Equipment Mechanic Assigned Field Repair Duties
607 SDPO Assigned Acting Director In A Camp
608 Bilingual Bonus
609 RN Assigned to Emergency Room
610 Antelope Valley Firefighting Crew
611 Tree Trimmer Supervisor, Power Operations
612 Shooting Bonus, Expert
613 Shooting Bonus, Distinguished Expert
614 Shooting Bonus, Marksman
615 Shooting Bonus, Sharpshooter
616 Antelope Valley Quarters, On Fire Call
617 Clinic Nurse Assigned to Probation Camp
618 Transportation Bus Driver, Sheriff
619 Lifeguard Paramedic
620 San Gabriel Dam Operator
621 Nurse Retention Incentive
622 Advanced Appraiser Certification
623 Probation Transcriber Typist Production Incentive
624 Bilingual Additional Bonus Children's Social Workers
625 Agriculture Inspectors Assigned to Standardization
626 Firefighter Paramedic not Assigned to a Paramedic Post
628 Bilingual Bonus for Other Than Monthly Employees
629 Mortuary Attendant at LAC/USC MC
630 Safety Police Educational/Longevity Incentive
632 Mental Health Workers Assigned to Sheriff's Detention
Facilities
634 Supervising Detention Services Officer of the Day
635 Transportation Deputy Bus Driver, Probation
636 Sheriff's Station Commander Expenses
637 Professional Development Expenses
638 Probation Telecom Equipment Bonus
639 Intern Housing Allowance LAC/USC Med. Center
640 Children's Services ERCP Retention
641 Shooting Bonus, Expert-Reserve
642 Shooting Bonus, Distinguished Expert-Reserve
643 Shooting Bonus, Marksman-Reserve
644 Shooting Bonus, Sharpshooter-Reserve
645 Welder Certification Bonus
782 FLSA Premium Pay for Regularly Scheduled Work
Assignment
903 Non-Elective Leave Buyback
910 Sick Buyback
911 Vacation Buyback
912 Holiday Buyback
913 Sick Pre-71 Buyback
914 Sick Buyback-Probation 56 Hour
915 Vacation Buyback-56 Hour
930 Special Paid Leave Buyback
931 Appraisers Leave Buyback
932 Intern/Resident Leave Buyback
None Emp Suggest
None Park, Nontaxable
None Park, Taxable
None Prior Salary
None Transportation Allowance
None Traffic Mitigation
Any additional item of remuneration may subsequently be included
in "compensation earnable" pursuant to a memorandum of understanding
between a county of the first class and any of its recognized
employee organizations or a resolution adopted by its board of
supervisors.
(c) No item of remuneration included in "compensation earnable" as
a result of the court-approved settlement and as set forth in the
resolution described above in subdivision (b) may be removed
therefrom as a result of any subsequent judicial determination,
except that a county of the first class and a recognized employee
organization may agree only through a memorandum of understanding to
exclude the item of remuneration from "compensation earnable" or the
board of supervisors may adopt a resolution excluding the item of
remuneration from "compensation earnable" with respect to
nonrepresented employees.
(d) This section shall not be operative in the county until the
board of supervisors, by resolution adopted by a majority vote, makes
the provisions of this section applicable in the county.
SEC. 114. Section 31491.1 of the Government Code is amended to
read:
31491.1. (a) Notwithstanding Section 31491, any retired member
receiving a retirement pension may present evidence in the form
required by the board of the retired member's actual primary
insurance amount. For the purposes of this section, the actual
primary insurance amount shall be the amount being paid under the
federal system. Following receipt of that evidence, the board shall
adjust the retired member's pension to equal the amount of the
pension to which he or she would have been entitled on that date had
the estimated primary insurance amount equaled the actual insurance
amount.
(b) The adjustment calculated in subdivision (a) shall be applied
to the retired member's pension beginning in the month upon which the
retired member presents evidence required by the board.
(c) This section shall not be operative in any county until the
board of supervisors, by resolution adopted by majority vote, makes
this section applicable.
SEC. 115. Section 31491.2 of the Government Code is amended to
read:
31491.2. (a) Notwithstanding Section 31491, any retired member
receiving a retirement pension may present evidence in the form
required by the board of the retired member's federal estimated
primary insurance amount provided that the retired member is not
receiving a federal primary insurance amount. For the purposes of
this section, the federal estimated primary insurance amount shall be
the amount payable under the federal system as of the retired member'
s normal federal retirement age. Should the federal estimated
primary insurance amount equal zero, the retired member shall not
have his or her pension benefit reduced for an estimated primary
insurance amount as required in subdivision (e) of Section 31491.
(b) Following receipt of that evidence, the board shall adjust the
retired member's pension to equal the amount of the pension to which
he or she would have been entitled on that date had the estimated
primary insurance amount calculated in Section 31491 equaled zero.
(c) The adjustment calculated in subdivision (a) shall be applied
to the retired member's pension beginning in the month upon which the
retired member presents evidence required by the board.
(d) Notwithstanding subdivision (a), upon attaining federal
retirement age, the retired member shall submit any evidence as may
be required by the board of the retired members' federal estimated or
actual primary insurance amount. Following receipt of that
evidence, the board shall adjust the retired member's pension in
accordance with subdivision (j) of Section 31491.
(e) This section shall not be operative in any county until the
board of supervisors, by resolution adopted by majority vote, makes
this section applicable.
SEC. 116. Section 31676.17 of the Government Code is amended to
read:
31676.17. This section may be made applicable in any county on
the first day of the month after the board of supervisors of the
county adopts, by majority vote, a resolution providing that this
section shall become applicable in the county. Notwithstanding any
other provisions of this chapter, the current service pension or the
current service pension combined with the prior service pension is an
additional pension for members purchased by the contributions of the
county or district sufficient, when added to the service retirement
annuity, to equal the fraction of one-fiftieth of the member's final
compensation set forth opposite the member's age at retirement, taken
to the preceding completed quarter year, in the following table
multiplied by the number of years of current service or years of
current and prior service with which the member is entitled to be
credited at retirement, but in no event shall the total retirement
allowance exceed the member's final compensation:
Age at Fraction
Retirement
50 .......................... 1.0000
50 1/4 ........................ 1.0125
50 1/2 ........................ 1.0250
50 3/4 ........................ 1.0375
51 .......................... 1.0500
51 1/4 ........................ 1.0625
51 1/2 ........................ 1.0750
51 3/4 ........................ 1.0875
52 .......................... 1.1000
52 1/4 ........................ 1.1125
52 1/2 ........................ 1.1250
52 3/4 ........................ 1.1375
53 .......................... 1.1500
53 1/4 ........................ 1.1625
53 1/2 ........................ 1.1750
53 3/4 ........................ 1.1875
54 .......................... 1.2000
54 1/4 ........................ 1.2125
54 1/2 ........................ 1.2250
54 3/4 ........................ 1.2375
55 .......................... 1.2500
55 1/4 ........................ 1.2625
55 1/2 ........................ 1.2750
55 3/4 ........................ 1.2875
56 .......................... 1.3000
56 1/4 ........................ 1.3125
56 1/2 ........................ 1.3250
56 3/4 ........................ 1.3375
57 .......................... 1.3500
57 1/4 ........................ 1.3625
57 1/2 ........................ 1.3750
57 3/4 ........................ 1.3875
58 .......................... 1.4000
58 1/4 ........................ 1.4125
58 1/2 ........................ 1.4250
58 3/4 ........................ 1.4375
59 .......................... 1.4500
59 1/4 ........................ 1.4625
59 1/2 ........................ 1.4750
59 3/4 ........................ 1.4875
60 and over ................... 1.5000
In any county operating under this section, any limitations in any
provisions of this chapter upon the amount of compensation used for
computing rates of contributions shall be disregarded.
Wherever in this chapter reference is made to survivorship
benefits and rights under Section 31676.1, the same shall apply to
this section.
This section shall apply to members employed by the county on or
after the date this section becomes operative in the county.
SEC. 117. Section 31676.19 of the Government Code is amended to
read:
31676.19. This section may be made applicable in any county on
the first day of the month after the board of supervisors of the
county adopts, by majority vote, a resolution providing that this
section shall become applicable in the county. Notwithstanding any
other provisions of this chapter, the current service pension or the
current service pension combined with the prior service pension is an
additional pension for members purchased by the contributions of the
county or district sufficient, when added to the service retirement
annuity, to equal the fraction of one-fiftieth of the member's final
compensation set forth opposite the member's age at retirement, taken
to the preceding completed quarter year, in the following table
multiplied by the number of years of current service or years of
current and prior service with which the member is entitled to be
credited at retirement, but in no event shall the total retirement
allowance exceed the member's final compensation:
Age at
Retirement Fraction
50 ........................................... 1.0000
50 1/4 ......................................... 1.0175
50 1/2 ......................................... 1.0350
50 3/4 ......................................... 1.0525
51 ........................................... 1.0700
51 1/4 ......................................... 1.0875
51 1/2 ......................................... 1.1050
51 3/4 ......................................... 1.1225
52 ........................................... 1.1400
52 1/4 ......................................... 1.1575
52 1/2 ......................................... 1.1750
52 3/4 ......................................... 1.1925
53 ........................................... 1.2100
53 1/4 ......................................... 1.2275
53 1/2 ......................................... 1.2450
53 3/4 ......................................... 1.2625
54 ........................................... 1.2800
54 1/4 ......................................... 1.2975
54 1/2 ......................................... 1.3150
54 3/4 ......................................... 1.3325
55 and over .................................... 1.3500
In any county operating under this section, any limitations in any
provisions of this chapter upon the amount of compensation used for
computing rates of contributions shall be disregarded.
Wherever in this chapter reference is made to survivorship
benefits and rights under Section 31676.1, the same shall apply to
this section.
This section shall apply to members employed by the county on or
after the date this section becomes operative in the county.
SEC. 118. Section 31966 of the Government Code is amended to read:
31966. The board shall invest and reinvest the funds of the
system, and may from time to time sell any securities held by it and
invest and reinvest the proceeds therefrom and all unappropriated
income of the funds. All funds received by it not required for
current disbursements shall be invested only in:
(a) Securities that are legal for savings bank investments or any
bonds which, pursuant to the statutes or laws providing for the
issuance of those bonds are entitled to the same force or value or
use as bonds issued by any municipality, or any bonds issued pursuant
to those acts, statutes or laws of this state wherein the law
specifically states by reference or otherwise that the bonds shall be
legal investments for either savings banks, insurance companies, all
trust funds, state school funds and any funds that may be invested
in bonds of cities, counties, cities and counties, school districts,
or municipalities in the state, or any bonds that have been
investigated and approved by a commission or board now or hereafter
authorized by law to conduct that investigation and give that
approval and by authority of which those bonds are declared to be
legal investments for insurers.
(b) Obligations issued pursuant to Title IV of the National
Housing Act, approved June 27, 1934.
(c) Shares, share accounts, or investment certificates of any
savings and loan association that has the protection provided by
Title IV of the National Housing Act, approved June 27, 1934, to the
extent of that insurance protection.
(d) Deposits at interest in any state or national bank doing
business with the county pursuant to the law authorizing and
controlling the deposit of public funds in banks.
(e) Shares, share accounts, or certificates of funds of a credit
union that has the protection provided by the National Credit Union
Share Insurance Fund or other private insurance or guaranty of share
accounts that is acceptable to the Commissioner of Financial
Institutions.
SEC. 119. Section 32271 of the Government Code is amended to read:
32271. The board shall invest and reinvest the funds of the
system, and may from time to time sell and invest and reinvest the
proceeds of any securities held by it and invest and reinvest all
unappropriated income of the funds. All funds received by it not
required for current disbursements shall be invested only in:
(a) Securities that are legal for savings bank investments or any
bonds which, pursuant to the statutes or laws providing for the
issuance of those bonds are entitled to the same force or value or
use as bonds issued by any municipality, or any bonds issued pursuant
to those acts, statutes or laws of this state wherein that law
specifically states by reference or otherwise that the bonds shall be
legal investments for either savings banks, insurance companies, all
trust funds, state school funds and any funds that may be invested
in bonds of cities, counties, cities and counties, school districts,
or municipalities in the state, or any bonds that have been
investigated and approved by a commission or board now or hereafter
authorized by law to conduct that investigation and give that
approval and by authority of which those bonds are declared to be
legal investments for insurers.
(b) Deposits at interest in any state or national bank doing
business with the county pursuant to law authorizing and controlling
the deposit of public funds in banks.
(c) Shares, share
accounts, or certificates of funds of a credit union that has the
protection provided by the National Credit Union Share Insurance Fund
or other private insurance or guaranty of share accounts that is
acceptable to the Commissioner of Financial Institutions.
SEC. 120. Section 53601 of the Government Code is amended to read:
53601. This section shall apply to a local agency that is a city,
a district, or other local agency that does not pool money in
deposits or investments with other local agencies, other than local
agencies that have the same governing body. However, Section 53635
shall apply to all local agencies that pool money in deposits or
investments with other local agencies that have separate governing
bodies. The legislative body of a local agency having money in a
sinking fund or money in its treasury not required for the immediate
needs of the local agency may invest any portion of the money that it
deems wise or expedient in those investments set forth below. A
local agency purchasing or obtaining any securities prescribed in
this section, in a negotiable, bearer, registered, or nonregistered
format, shall require delivery of the securities to the local agency,
including those purchased for the agency by financial advisers,
consultants, or managers using the agency's funds, by book entry,
physical delivery, or by third-party custodial agreement. The
transfer of securities to the counterparty bank's customer book entry
account may be used for book entry delivery.
For purposes of this section, "counterparty" means the other party
to the transaction. A counterparty bank's trust department or
separate safekeeping department may be used for the physical delivery
of the security if the security is held in the name of the local
agency. Where this section specifies a percentage limitation for a
particular category of investment, that percentage is applicable only
at the date of purchase. Where this section does not specify a
limitation on the term or remaining maturity at the time of the
investment, no investment shall be made in any security, other than a
security underlying a repurchase or reverse repurchase agreement or
securities lending agreement authorized by this section, that at the
time of the investment has a term remaining to maturity in excess of
five years, unless the legislative body has granted express authority
to make that investment either specifically or as a part of an
investment program approved by the legislative body no less than
three months prior to the investment:
(a) Bonds issued by the local agency, including bonds payable
solely out of the revenues from a revenue-producing property owned,
controlled, or operated by the local agency or by a department,
board, agency, or authority of the local agency.
(b) United States Treasury notes, bonds, bills, or certificates of
indebtedness, or those for which the faith and credit of the United
States are pledged for the payment of principal and interest.
(c) Registered state warrants or treasury notes or bonds of this
state, including bonds payable solely out of the revenues from a
revenue-producing property owned, controlled, or operated by the
state or by a department, board, agency, or authority of the state.
(d) Bonds, notes, warrants, or other evidences of indebtedness of
any local agency within this state, including bonds payable solely
out of the revenues from a revenue-producing property owned,
controlled, or operated by the local agency, or by a department,
board, agency, or authority of the local agency.
(e) Federal agency or United States government-sponsored
enterprise obligations, participations, or other instruments,
including those issued by or fully guaranteed as to principal and
interest by federal agencies or United States government-sponsored
enterprises.
(f) Bankers acceptances otherwise known as bills of exchange or
time drafts that are drawn on and accepted by a commercial bank.
Purchases of bankers acceptances may not exceed 180 days maturity or
40 percent of the agency's money that may be invested pursuant to
this section. However, no more than 30 percent of the agency's money
may be invested in the bankers acceptances of any one commercial
bank pursuant to this section.
This subdivision does not preclude a municipal utility district
from investing any money in its treasury in any manner authorized by
the Municipal Utility District Act (Division 6 (commencing with
Section 11501) of the Public Utilities Code).
(g) Commercial paper of "prime" quality of the highest ranking or
of the highest letter and number rating as provided for by Moody's
Investors Service, Inc. (Moody's), Standard and Poor's (S&P), or
Fitch Financial Services, Inc. (Fitch). The corporation that issues
the commercial paper shall be organized and operating within the
United States, shall have total assets in excess of five hundred
million dollars ($500,000,000), and shall issue debt, other than
commercial paper, if any, that is rated "A" or higher by Moody's,
S&P, or Fitch. Eligible commercial paper shall have a maximum
maturity of 270 days or less. Local agencies, other than counties or
a city and county, may invest no more than 25 percent of their money
in eligible commercial paper. Local agencies, other than counties
or a city and county, may purchase no more than 10 percent of the
outstanding commercial paper of any single corporate issue. Counties
or a city and county may invest in commercial paper pursuant to the
concentration limits in subdivision (a) of Section 53635.
(h) Negotiable certificates of deposit issued by a nationally or
state-chartered bank, a savings association or a federal association
(as defined by Section 5102 of the Financial Code), a state or
federal credit union, or by a state-licensed branch of a foreign
bank. Purchases of negotiable certificates of deposit may not exceed
30 percent of the agency's money which may be invested pursuant to
this section. For purposes of this section, negotiable certificates
of deposit do not come within Article 2 (commencing with Section
53630), except that the amount so invested shall be subject to the
limitations of Section 53638. The legislative body of a local agency
and the treasurer or other official of the local agency having legal
custody of the money are prohibited from investing local agency
funds, or funds in the custody of the local agency, in negotiable
certificates of deposit issued by a state or federal credit union if
a member of the legislative body of the local agency, or any person
with investment decision making authority in the administrative
office manager's office, budget office, auditor-controller's office,
or treasurer's office of the local agency also serves on the board of
directors, or any committee appointed by the board of directors, or
the credit committee or the supervisory committee of the state or
federal credit union issuing the negotiable certificates of deposit.
(i) (1) Investments in repurchase agreements or reverse repurchase
agreements or securities lending agreements of any securities
authorized by this section, as long as the agreements are subject to
this subdivision, including the delivery requirements specified in
this section.
(2) Investments in repurchase agreements may be made, on any
investment authorized in this section, when the term of the agreement
does not exceed one year. The market value of securities that
underlay a repurchase agreement shall be valued at 102 percent or
greater of the funds borrowed against those securities and the value
shall be adjusted no less than quarterly. Since the market value of
the underlying securities is subject to daily market fluctuations,
the investments in repurchase agreements shall be in compliance if
the value of the underlying securities is brought back up to 102
percent no later than the next business day.
(3) Reverse repurchase agreements or securities lending agreements
may be utilized only when all of the following conditions are met:
(A) The security to be sold on reverse repurchase agreement or
securities lending agreement has been owned and fully paid for by the
local agency for a minimum of 30 days prior to sale.
(B) The total of all reverse repurchase agreements and securities
lending agreements on investments owned by the local agency does not
exceed 20 percent of the base value of the portfolio.
(C) The agreement does not exceed a term of 92 days, unless the
agreement includes a written codicil guaranteeing a minimum earning
or spread for the entire period between the sale of a security using
a reverse repurchase agreement or securities lending agreement and
the final maturity date of the same security.
(D) Funds obtained or funds within the pool of an equivalent
amount to that obtained from selling a security to a counterparty by
way of a reverse repurchase agreement or securities lending
agreement, shall not be used to purchase another security with a
maturity longer than 92 days from the initial settlement date of the
reverse repurchase agreement or securities lending agreement, unless
the reverse repurchase agreement or securities lending agreement
includes a written codicil guaranteeing a minimum earning or spread
for the entire period between the sale of a security using a reverse
repurchase agreement or securities lending agreement and the final
maturity date of the same security.
(4) (A) Investments in reverse repurchase agreements, securities
lending agreements, or similar investments in which the local agency
sells securities prior to purchase with a simultaneous agreement to
repurchase the security, may only be made upon prior approval of the
governing body of the local agency and shall only be made with
primary dealers of the Federal Reserve Bank of New York or with a
nationally or state-chartered bank that has or has had a significant
banking relationship with a local agency.
(B) For purposes of this chapter, "significant banking
relationship" means any of the following activities of a bank:
(i) Involvement in the creation, sale, purchase, or retirement of
a local agency's bonds, warrants, notes, or other evidence of
indebtedness.
(ii) Financing of a local agency's activities.
(iii) Acceptance of a local agency's securities or funds as
deposits.
(5) (A) "Repurchase agreement" means a purchase of securities by
the local agency pursuant to an agreement by which the counterparty
seller will repurchase the securities on or before a specified date
and for a specified amount and the counterparty will deliver the
underlying securities to the local agency by book entry, physical
delivery, or by third-party custodial agreement. The transfer of
underlying securities to the counterparty bank's customer book-entry
account may be used for book-entry delivery.
(B) "Securities," for purpose of repurchase under this
subdivision, means securities of the same issuer, description, issue
date, and maturity.
(C) "Reverse repurchase agreement" means a sale of securities by
the local agency pursuant to an agreement by which the local agency
will repurchase the securities on or before a specified date and
includes other comparable agreements.
(D) "Securities lending agreement" means an agreement under which
a local agency agrees to transfer securities to a borrower who, in
turn, agrees to provide collateral to the local agency. During the
term of the agreement, both the securities and the collateral are
held by a third party. At the conclusion of the agreement, the
securities are transferred back to the local agency in return for the
collateral.
(E) For purposes of this section, the base value of the local
agency's pool portfolio shall be that dollar amount obtained by
totaling all cash balances placed in the pool by all pool
participants, excluding any amounts obtained through selling
securities by way of reverse repurchase agreements, securities
lending agreements, or other similar borrowing methods.
(F) For purposes of this section, the spread is the difference
between the cost of funds obtained using the reverse repurchase
agreement and the earnings obtained on the reinvestment of the funds.
(j) Medium-term notes, defined as all corporate and depository
institution debt securities with a maximum remaining maturity of five
years or less, issued by corporations organized and operating within
the United States or by depository institutions licensed by the
United States or any state and operating within the United States.
Notes eligible for investment under this subdivision shall be rated
"A" or better by a nationally recognized rating service. Purchases
of medium-term notes shall not include other instruments authorized
by this section and may not exceed 30 percent of the agency's surplus
money which may be invested pursuant to this section.
(k) (1) Shares of beneficial interest issued by diversified
management companies that invest in the securities and obligations as
authorized by subdivisions (a) to (j), inclusive, or subdivision (m)
or (n) and that comply with the investment restrictions of this
article and Article 2 (commencing with Section 53630). However,
notwithstanding these restrictions, a counterparty to a reverse
repurchase agreement or securities lending agreement is not required
to be a primary dealer of the Federal Reserve Bank of New York if the
company's board of directors finds that the counterparty presents a
minimal risk of default, and the value of the securities underlying a
repurchase agreement or securities lending agreement may be 100
percent of the sales price if the securities are marked to market
daily.
(2) Shares of beneficial interest issued by diversified management
companies that are money market funds registered with the Securities
and Exchange Commission under the Investment Company Act of 1940 (15
U.S.C. Sec. 80a-1 et seq.).
(3) If investment is in shares issued pursuant to paragraph (1),
the company shall have met either of the following criteria:
(A) Attained the highest ranking or the highest letter and
numerical rating provided by not less than two nationally recognized
statistical rating organizations.
(B) Retained an investment adviser registered or exempt from
registration with the Securities and Exchange Commission with not
less than five years' experience investing in the securities and
obligations authorized by subdivisions (a) to (j), inclusive, or
subdivision (m) or (n) and with assets under management in excess of
five hundred million dollars ($500,000,000).
(4) If investment is in shares issued pursuant to paragraph (2),
the company shall have met either of the following criteria:
(A) Attained the highest ranking or the highest letter and
numerical rating provided by not less than two nationally recognized
statistical rating organizations.
(B) Retained an investment adviser registered or exempt from
registration with the Securities and Exchange Commission with not
less than five years' experience managing money market mutual funds
with assets under management in excess of five hundred million
dollars ($500,000,000).
(5) The purchase price of shares of beneficial interest purchased
pursuant to this subdivision shall not include any commission that
the companies may charge and shall not exceed 20 percent of the
agency's surplus money that may be invested pursuant to this section.
However, no more than 10 percent of the agency's surplus funds may
be invested in shares of beneficial interest of any one mutual fund
pursuant to paragraph (1).
(l) Moneys held by a trustee or fiscal agent and pledged to the
payment or security of bonds or other indebtedness, or obligations
under a lease, installment sale, or other agreement of a local
agency, or certificates of participation in those bonds,
indebtedness, or lease installment sale, or other agreements, may be
invested in accordance with the statutory provisions governing the
issuance of those bonds, indebtedness, or lease installment sale, or
other agreement, or to the extent not inconsistent therewith or if
there are no specific statutory provisions, in accordance with the
ordinance, resolution, indenture, or agreement of the local agency
providing for the issuance.
(m) Notes, bonds, or other obligations that are at all times
secured by a valid first priority security interest in securities of
the types listed by Section 53651 as eligible securities for the
purpose of securing local agency deposits having a market value at
least equal to that required by Section 53652 for the purpose of
securing local agency deposits. The securities serving as collateral
shall be placed by delivery or book entry into the custody of a
trust company or the trust department of a bank which is not
affiliated with the issuer of the secured obligation, and the
security interest shall be perfected in accordance with the
requirements of the Uniform Commercial Code or federal regulations
applicable to the types of securities in which the security interest
is granted.
(n) Any mortgage passthrough security, collateralized mortgage
obligation, mortgage-backed or other pay-through bond, equipment
lease-backed certificate, consumer receivable passthrough
certificate, or consumer receivable-backed bond of a maximum of five
years maturity. Securities eligible for investment under this
subdivision shall be issued by an issuer having an "A" or higher
rating for the issuer's debt as provided by a nationally recognized
rating service and rated in a rating category of "AA" or its
equivalent or better by a nationally recognized rating service.
Purchase of securities authorized by this subdivision may not exceed
20 percent of the agency's surplus money that may be invested
pursuant to this section.
SEC. 121. Section 56334 of the Government Code is amended to read:
56334. The term of office of each member shall be four years and
until the appointment and qualification of his or her successor.
Upon enlargement of the commission by two members, as provided in
Section 56332, the new members first appointed to represent
independent special districts shall classify themselves by lot so
that the expiration date of the term of office of one new member
coincides with the existing member who holds the office represented
by the original two-year term on the commission and the term of
office of the other new member coincides with the existing member who
holds the office represented by the original four-year term on the
commission. The body which originally appointed a member whose term
has expired shall appoint his or her successor for a full term of
four years. Any member may be removed at any time and without cause
by the body appointing that member. The expiration date of the term
of office of each member shall be the first Monday in May in the year
in which the term of the member expires, unless procedures adopted
by the commission specify an alternate date to apply uniformly to all
members. However, the length of a term of office shall not be
extended more than once. Any vacancy in the membership of the
commission shall be filled for the unexpired term by appointment by
the body which originally appointed the member whose office has
become vacant.
The chairperson of the commission shall be selected by the members
of the commission.
Commission members and alternates shall be reimbursed for the
actual amount of their reasonable and necessary expenses incurred in
attending meetings and in performing the duties of their office. The
commission may authorize payment of a per diem to commission members
and alternates for each day while they are in attendance at meetings
of the commission.
SEC. 122. A heading is added as Article 2.11 (commencing with
Section 65892.13) of Chapter 4 of Division 1 of Title 7 of the
Government Code, to read:
Article 2.11. Wind Energy
SEC. 123. Section 65892.13 of the Government Code is amended to
read:
65892.13. (a) The Legislature finds and declares all of the
following:
(1) California has a shortage of reliable electricity supply,
which has led the Governor to proclaim a state of emergency and to
issue numerous executive orders to lessen, and mitigate the effects
of, the shortage. The executive orders, among other things, expedite
and shorten the processing of applications for existing and new
powerplants, establish an emergency siting process for peaking and
renewable powerplants, and relax existing air pollutant emission
requirements in order to allow power generation facilities to
continue generating much needed electricity.
(2) Wind energy is an abundant, renewable, and nonpolluting energy
resource. When converted to electricity, it reduces our dependence
on nonrenewable energy resources and reduces air and water pollution
that result from conventional sources. Distributed small wind energy
systems also enhance the reliability and power quality of the power
grid, reduce peak power demands, increase in-state electricity
generation, diversify the state's energy supply portfolio, and make
the electricity supply market more competitive by promoting consumer
choice.
(3) In 2000, the Legislature and Governor recognized the need to
promote all feasible adoption of clean, renewable, and distributed
energy sources by enacting the Reliable Electric Service Investments
Act (Article 15 (commencing with Section 399) of Chapter 2.3 of Part
1 of Division 1 of the Public Utilities Code). As set forth in
Section 399.6 of the Public Utilities Code, the stated objectives of
the act include to "increase, in the near term, the quantity of
California's electricity generated by in-state renewable energy
resources, while protecting system reliability, fostering resource
diversity, and obtaining the greatest environmental benefits for
California residents."
(4) Small wind energy systems, designed for onsite home, farm, and
small commercial use, are recognized by the Legislature and the
State Energy Resources Conservation and Development Commission as an
excellent technology to help achieve the goals of increased in-state
electricity generation, reduced demand on the state electric grid,
increased consumer energy independence, and nonpolluting electricity
generation. In June 2001, the commission adopted a Renewable
Investment Plan that includes one hundred one million two hundred
fifty thousand dollars ($101,250,000) over the next five years, in
the form of a 50 percent buydown incentive for the purchasers of
"emerging renewable technologies," including small wind energy
systems.
(5) In light of the state's electricity supply shortage and its
existing program to encourage the adoption of small wind energy
systems, it is the intent of the Legislature that any ordinances
regulating small wind energy systems adopted by local agencies have
the effect of providing for the installation and use of small wind
energy systems and that provisions in these ordinances relating to
matters including, but not limited to, parcel size, tower height,
noise, notice, and setback requirements do not unreasonably restrict
the ability of homeowners, farms, and small businesses to install
small wind energy systems in zones in which they are authorized by
local ordinance. It is the policy of the state to promote and
encourage the use of small wind energy systems and to limit obstacles
to their use.
(b) The implementation of consistent statewide standards to
achieve the timely and cost-effective installation of small wind
energy systems is not a municipal affair, as that term is used in
Section 5 of Article XI of the California Constitution, but is
instead a matter of statewide concern. It is the intent of the
Legislature that this section apply to all local agencies, including,
but not limited to, charter cities, charter counties, and charter
cities and counties.
(c) The following definitions govern this section:
(1) "Small wind energy system" means a wind energy conversion
system consisting of a wind turbine, a tower, and associated control
or conversion electronics, which has a rated capacity that does not
exceed the allowable rated capacity under the Emerging Renewables
Fund of the Renewables Investment Plan administered by the California
Energy Commission and which will be used primarily to reduce onsite
consumption of utility power.
(2) "Tower height" means the height above grade of the fixed
portion of the tower, excluding the wind turbine.
(d) Any local agency may, by ordinance, provide for the
installation of small wind energy systems in the jurisdiction outside
an "urbanized area," as defined in paragraph (2) of subdivision (b)
of Section 21080.7 of the Public Resources Code pursuant to this
section. The local agency may establish a process for the issuance
of a conditional use permit for small wind energy systems.
(1) The ordinance may impose conditions on the installation of
small wind energy systems that include, but are not limited to,
notice, tower height, setback, view protection, aesthetics, aviation,
and design safety requirements. However, the ordinance shall not
require conditions on notice, tower height, setbacks, noise level,
turbine approval, tower drawings, and engineering analysis, or line
drawings that are more restrictive than the following:
(A) Notice of an application for installation of a small wind
energy system shall be provided to property owners within 300 feet of
the property on which the system is to be located.
(B) Tower heights of not more than 65 feet shall be allowed on
parcels between one and five acres and tower heights of not more than
80 feet shall be allowed on parcels of five acres or more, provided
that the application includes evidence that the proposed height does
not exceed the height recommended by the manufacturer or distributor
of the system.
(C) Setbacks for the system tower shall be no farther from the
property line than the height of the system, provided that it also
complies with any applicable fire setback requirements pursuant to
Section 4290 of the Public Resources Code.
(D) Decibel levels for the system shall not exceed the lesser of
60 decibels (dBA), or any existing maximum noise levels applied
pursuant to the noise element of a general plan for the applicable
zoning classification in a jurisdiction, as measured at the closest
neighboring inhabited dwelling, except during short-term events such
as utility outages and severe wind storms.
(E) The system's turbine must have been approved by the California
Energy Commission as qualifying under the Emerging Renewables Fund
of the commission's Renewables Investment Plan or certified by a
national program recognized and approved
by the Energy Commission.
(F) The application shall include standard drawings and an
engineering analysis of the system's tower, showing compliance with
the Uniform Building Code or the California Building Standards Code
and certification by a professional mechanical, structural, or civil
engineer licensed by this state. However, a wet stamp shall not be
required, provided that the application demonstrates that the system
is designed to meet the most stringent wind requirements (Uniform
Building Code wind exposure D), the requirements for the worst
seismic class (Seismic 4), and the weakest soil class, with a soil
strength of not more than 1,000 pounds per square foot, or other
relevant conditions normally required by a local agency.
(G) The system shall comply with all applicable Federal Aviation
Administration requirements, including Subpart B (commencing with
Section 77.11) of Part 77 of Title 14 of the Code of Federal
Regulations regarding installations close to airports, and the State
Aeronautics Act (Part 1 (commencing with Section 21001) of Division 9
of the Public Utilities Code).
(H) The application shall include a line drawing of the electrical
components of the system in sufficient detail to allow for a
determination that the manner of installation conforms to the
National Electric Code.
(2) The ordinance may require the applicant to provide information
demonstrating that the system will be used primarily to reduce
onsite consumption of electricity. The ordinance may also require
the application to include evidence, unless the applicant does not
plan to connect the system to the electricity grid, that the electric
utility service provider that serves the proposed site has been
informed of the applicant's intent to install an interconnected
customer-owned electricity generator.
(3) A small wind energy system shall not be allowed where
otherwise prohibited by any of the following:
(A) A local coastal program and any implementing regulations
adopted pursuant to the California Coastal Act (Division 20
(commencing with Section 30000) of the Public Resources Code).
(B) The California Coastal Commission, pursuant to the California
Coastal Act (Division 20 (commencing with Section 30000) of the
Public Resources Code).
(C) The regional plan and any implementing regulations adopted by
the Tahoe Regional Planning Agency pursuant to the Tahoe Regional
Planning Compact (Title 7.4 (commencing with Section 66800) of the
Government Code).
(D) The San Francisco Bay Plan and any implementing regulations
adopted by the San Francisco Bay Conservation and Development
Commission pursuant to the McAteer-Petris Act (Title 7.2 (commencing
with Section 66600) of the Government Code).
(E) A comprehensive land use plan and any implementing regulations
adopted by an airport land use commission pursuant to Article 3.5
(commencing with Section 21670) of Chapter 4 of Division 9 of Part 1
of the Public Utilities Code.
(F) The Alquist-Priolo Earthquake Fault Zoning Act (Chapter 7.5
(commencing with Section 2621) of Division 2 of the Public Resources
Code).
(G) A local agency to protect the scenic appearance of the scenic
highway corridor designated pursuant to Article 2.5 (commencing with
Section 260) of Chapter 2 of Division 1 of the Streets and Highways
Code.
(H) The terms of a conservation easement entered into pursuant to
Chapter 4 (commencing with Section 815) of Division 2 of Part 2 of
the Civil Code.
(I) The terms of an open-space easement entered into pursuant to
the Open-space Easement Act of 1974 (Chapter 6.6 (commencing with
Section 51070) of Division 1 of Title 5 of the Government Code).
(J) The terms of an agricultural conservation easement entered
into pursuant to the California Farmland Conservancy Program Act
(Division 10.2 (commencing with Section 10200) of the Public
Resources Code).
(K) The terms of a contract entered into pursuant to the
Williamson Act (Chapter 7 (commencing with Section 51200) of Division
1 of Title 5 of the Government Code).
(L) The listing of the proposed site in the National Register of
Historic Places or the California Register of Historical Resources
pursuant to Section 5024.1 of the Public Resources Code.
(4) In the event a small wind energy system is proposed to be
sited in an agricultural area that may have aircraft operating at low
altitudes, the local agency shall take reasonable steps, concurrent
with other notices issued pursuant to this subdivision, to notify
pest control aircraft pilots registered to operate in the county
pursuant to Section 11921 of the Food and Agricultural Code.
(5) Notwithstanding the requirements of paragraph (1), a local
agency may, if it deems it necessary due to circumstances specific to
the proposed installation, provide notice by placing a display
advertisement of at least one-eighth page in at least one newspaper
of general circulation within the local agency in which the
installation is proposed.
(6) Nothing in this section shall be construed to alter or affect
existing law regarding the authority of local agencies to review an
application.
(e) Notwithstanding subdivision (f), any local agency that has not
adopted an ordinance in accordance with subdivision (d) by July 1,
2002, may adopt the ordinance at a later date, but any applications
that are submitted between July 1, 2002, and the adopted date of the
ordinance must be approved pursuant to subdivision (f).
(f) Any local agency which has not adopted an ordinance pursuant
to subdivision (d) on or before July 1, 2002, shall approve
applications for small wind energy systems by right if all of the
following conditions are met:
(1) The size of the parcel where the system is located is at least
one acre and is outside an "urbanized area," as defined in paragraph
(2) of subdivision (b) of Section 21080.7 of the Public Resources
Code.
(2) The tower height on parcels that are less than five acres does
not exceed 80 feet.
(3) No part of the system, including guy wire anchors, extends
closer than 30 feet to the property boundary, provided that it also
complies with any applicable fire setback requirements pursuant to
Section 4290 of the Public Resources Code.
(4) The system does not exceed 60 decibels (dBA), as measured at
the closest neighboring inhabited dwelling, except during short-term
events such as utility outages and severe windstorms.
(5) The system's turbine has been approved by the State Energy
Resources Conservation and Development Commission as qualifying under
the Emerging Renewables Fund of the commission's Renewables
Investment Plan or certified by a national program recognized and
approved by the Energy Commission.
(6) The application includes standard drawings and an engineering
analysis of the tower, showing compliance with the Uniform Building
Code or the California Building Standards Code and certification by a
licensed professional engineer. A wet stamp is not required if the
application demonstrates that the system is designed to meet the most
stringent wind requirements (Uniform Building Code wind exposure D),
the requirements for the worst seismic class (Seismic 4), and the
weakest soil class, with a soil strength of not more than 1,000
pounds per square foot, or other relevant conditions normally
required by a local agency.
(7) The system complies with all applicable Federal Aviation
Administration requirements, including any necessary approvals for
installations close to airports, and the requirements of the State
Aeronautics Act (Part 1 (commencing with Section 21001) of Division 9
of the Public Utilities Code).
(8) The application includes a line drawing of the electrical
components of the system in sufficient detail to allow for a
determination that the manner of installation conforms to the
National Electric Code.
(9) Unless the applicant does not plan to connect the system to
the electricity grid, the application includes evidence, that the
electric utility service provider that serves the proposed site has
been informed of the applicant's intent to install an interconnected
customer-owned electricity generator.
(10) A small wind energy system shall not be allowed where
otherwise prohibited by any of the following:
(A) A local coastal program and any implementing regulations
adopted pursuant to the California Coastal Act (Division 20
(commencing with Section 30000) of the Public Resources Code).
(B) The California Coastal Commission, pursuant to the California
Coastal Act (Division 20 (commencing with Section 30000) of the
Public Resources Code).
(C) The regional plan and any implementing regulations adopted by
the Tahoe Regional Planning Agency pursuant to the Tahoe Regional
Planning Compact (Title 7.4 (commencing with Section 66800) of the
Government Code).
(D) The San Francisco Bay Plan and any implementing regulations
adopted by the San Francisco Bay Conservation and Development
Commission pursuant to the McAteer-Petris Act (Title 7.2 (commencing
with Section 66600) of the Government Code).
(E) A comprehensive land use plan and any implementing regulations
adopted by an airport land use commission pursuant to Article 3.5
(commencing with Section 21670) of Chapter 4 of Division 9 of Part 1
of the Public Utilities Code.
(F) The Alquist-Priolo Earthquake Fault Zoning Act (Chapter 7.5
(commencing with Section 2621) of Division 2 of the Public Resources
Code).
(G) A local agency to protect the scenic appearance of the scenic
highway corridor designated pursuant to Article 2.5 (commencing with
Section 260) of Chapter 2 of Division 1 of the Streets and Highways
Code.
(H) The terms of a conservation easement entered into pursuant to
Chapter 4 (commencing with Section 815) of Division 2 of Part 2 of
the Civil Code.
(I) The terms of an open-space easement entered into pursuant to
the Open-space Easement Act of 1974 (Chapter 6.6 (commencing with
Section 51070) of Division 1 of Title 5 of the Government Code).
(J) The terms of an agricultural conservation easement entered
into pursuant to the California Farmland Conservancy Program Act
(Division 10.2 (commencing with Section 10200) of the Public
Resources Code).
(K) The terms of a contract entered into pursuant to the
Williamson Act (Chapter 7 (commencing with Section 51200) of Division
1 of Title 5 of the Government Code).
(L) On a site listed in the National Register of Historic Places
or the California Register of Historical Resources pursuant to
Section 5024.1 of the Public Resources Code.
(11) In the event that a proposed site for a small wind energy
system is in an agricultural area that may have aircraft operating at
low altitudes, the local agency shall take reasonable steps,
concurrent with other notices issued pursuant to this subdivision, to
notify pest control aircraft pilots registered to operate in the
county pursuant to Section 11921 of the Food and Agricultural Code.
(12) No other local ordinance, policy, or regulation shall be the
basis for a local agency to deny the siting and operation of a small
wind energy system under this subdivision.
(13) No changes in the general plan shall be required to implement
this subdivision. Any local agency, when amending its zoning
ordinance or general plan to incorporate the policies, procedures, or
other provisions applicable to the approval of small wind energy
systems, must do so in a manner consistent with the requirements of
this subdivision and the Permit Streamlining Act (Chapter 4.5
(commencing with Section 65920)).
(g) This section does not limit the authority of local agencies to
adopt less restrictive requirements for the siting and operation of
small wind energy systems.
(h) A local agency shall review an application for a small wind
energy system as expeditiously as possible pursuant to the timelines
established in the Permit Streamlining Act (Chapter 4.5 (commencing
with Section 65920)).
(i) Fees charged by a local agency to review an application for a
small wind energy system shall be determined in accordance with
Chapter 5 (commencing with Section 66000).
(j) Any requirement of notice to property owners imposed pursuant
to subdivision (d) shall ensure that responses to the notice are
filed in a timely manner.
(k) This section shall become inoperative on July 1, 2005, and as
of January 1, 2006, is repealed, unless a later enacted statute, that
becomes effective on or before January 1, 2006, deletes or extends
that date.
SEC. 124. Section 67940 of the Government Code is amended to read:
67940. (a) The Santa Cruz County Regional Transportation
Commission is hereby created, as a local area transportation planning
agency, and not as part of the executive branch of state government,
to provide regional transportation planning and development for the
area of Santa Cruz County. The commission may be known by any other
name it chooses and is the legal successor to the Santa Cruz County
Regional Transportation Commission, established pursuant to Section
29535, for all purposes, including those set forth in Section 67941.
(b) The governing body shall be composed of all five members of
the Santa Cruz County Board of Supervisors, one member for each of
the cities in the county, appointed by each city, and three members
appointed by the Santa Cruz Metropolitan Transit District.
(c) The appointing authority, for each regular member it appoints,
and the board of supervisors for each of its members, may appoint an
alternate member to serve in the place of the regular member when
the regular member is absent or disqualified from participating in a
meeting of the governing body.
SEC. 125. Section 68110 of the Government Code is amended to read:
68110. Every judge of a court of this state shall, in open court
during the presentation of causes before him or her, wear a judicial
robe, which the judge shall furnish at his or her own expense. The
Judicial Council shall, by rule, prescribe the style of such robes.
SEC. 126. Section 71639.1 of the Government Code is amended to
read:
71639.1. (a) Each trial court shall adopt a procedure to be used
as a preliminary step before petitioning the superior court for
relief pursuant to subdivision (c) or (d). The procedure may be
mediation, arbitration, or a procedure before an administrative
tribunal, such as the procedure established pursuant to Sections
71653 and 71654 for review of the decision of the hearing officer in
evidentiary due process hearings. The establishment of the procedure
shall be subject to the obligation to meet and confer in good faith.
However, nothing in this section shall prohibit a party from
seeking provisional relief, such as a stay, in any case in which
provisional relief would otherwise be appropriate.
(b) In a trial court with 10 or more judges, if the trial court
and a recognized employee organization reach an impasse regarding
development of a procedure required pursuant to subdivision (a), the
trial court shall adopt either nonbinding arbitration or a proceeding
before the administrative tribunal, such as the procedure
established pursuant to Sections 71653 and 71654, for review of the
decision of the hearing officer in evidentiary due process hearings.
(c) Notwithstanding Sections 1085 and 1103 of the Code of Civil
Procedure requiring the issuance of a writ to an inferior tribunal,
and except as required pursuant to Section 5 of Article VI of the
California Constitution, any agreements reached pursuant to
negotiations held pursuant to this article are binding on the parties
and may be enforced by petitioning the superior court for relief
pursuant to Section 1085 or 1103 of the Code of Civil Procedure.
(d) Notwithstanding Sections 1085 and 1103 of the Code of Civil
Procedure requiring the issuance of a writ to an inferior tribunal,
if a trial court, a trial court employee, or an employee organization
believes there has been a violation of this article, that party may
petition the superior court for relief.
(e) The Judicial Council shall adopt rules of court to implement
this hearing and appeal process. The rules of court shall provide a
mechanism for the establishment of a panel of court of appeal
justices who shall be qualified to hear these matters, as specified
in the rules of court, from which a single justice shall be assigned
to hear the matter in the superior court. The rules of court shall
provide that these matters shall be heard in the superior court and
the court of appeal on an expedited basis, and to the extent
permitted by law or rule of court, shall provide that any justice
assigned to hear the matter in the superior court shall not be from
the court of appeal district in which the action is filed, and shall
provide that appeals in these matters shall be heard in the court of
appeal district where the matter was filed.
(f) A complete alternative to the procedure outlined in
subdivisions (c), (d), and (e) may be provided for by mutual
agreement between a trial court and representatives of recognized
employee organizations.
(g) A court decision interpreting or applying this article shall
not be binding in cases or proceedings arising under Chapter 10
(commencing with Section 3500) of Division 4 of Title 1.
SEC. 127. Section 75028.5 of the Government Code is amended to
read:
75028.5. After a judge has withdrawn his or her accumulated
contributions upon discontinuance of his or her service, that service
shall not count in the event he or she later becomes a judge again,
until he or she pays into the Judges' Retirement Fund the amount of
accumulated contributions withdrawn by him or her, plus interest
thereon at the rate of interest then being required to be paid by
members of the Public Employees' Retirement System under Section
20654 from the date of withdrawal to the date of his or her payment.
SEC. 127.1. Section 75029 of the Government Code is amended to
read:
75029. For any judge who, prior to becoming a judge, served as a
"judge of an excluded court" as defined below, there shall be
included in the computation of the number of years of service as a
judge the number of years he or she served as a "judge of an excluded
court" if prior to the effective date of his or her retirement he or
she has paid into the Judges' Retirement Fund a sum equal to the
amount that would have been deducted from his or her salary and paid
into that fund had he or she been a judge, during the time he or she
was a "judge of an excluded court," computed by applying to the rate
of salary that he or she actually received during his or her first
year of service as a judge the rate of deduction applicable to judges'
salaries during that year.
As used in this section "judge of an excluded court" means a judge
of a justice court or a judge, justice of the peace, or recorder of
a court provided for by law prior to January 1, 1952.
A judge shall not, under this section, receive credit for that
portion, if any, of his or her service as a judge of an excluded
court, if other provisions of this chapter provide for the inclusion
of that service in the computation of his or her years of service as
a judge.
SEC. 127.2. Section 75030.9 of the Government Code, as amended by
Chapter 115 of the Statutes of 1986, is amended to read:
75030.9. A Member of the Senate or Assembly whose contributions
as a judge remain on deposit in the fund under Section 75033, shall,
during the term of office for which he or she was elected:
(a) Have a right under Section 75030.5 to elect by written
election filed with the Judges' Retirement System at any time prior
to his or her retirement, to make contributions pursuant to Section
75030.5 and to receive credit in this system as service rendered for
all or any part of his or her service as an elected state
constitutional officer, or as a public legal officer, as defined in
Section 75030.5, either before or after his or her service as a
judge, excluding any period of time for which he or she is receiving
or is entitled to receive a retirement allowance from any other
public retirement system. This subdivision does not apply to any
person who, on or after January 1, 1986, first becomes or continues
as an elected state constitutional officer, as defined by Section
75030.5, in a term which commences on or after January 1, 1986.
(b) Be retired as a judge under Section 75025 upon attaining, as
provided in this section, the age and service requirements specified
in that section.
For the purposes of this section, "service as an elected state
constitutional officer" includes all or any portion of the term of
office for which he or she was duly elected as an elected state
constitutional officer as specified by law at the time of his or her
election.
SEC. 127.3. Section 75031 of the Government Code is amended to
read:
75031. In computing the number of years a person has been a judge
for the purposes of retirement under Sections 75025 or 75060, there
shall be included any time as he or she was absent from his or her
position as judge by reason of service with the armed forces of the
United States during a war involving the United States as a
belligerent or in any other national emergency, and for six months
thereafter.
This section shall be retroactively applied to extend its benefits
to all judges who served in the military service in time of war,
including the period September 16, 1940, to December 7, 1941, and who
return or have returned to their positions upon the termination of
their military service or within six months thereafter. The
provisions of this section apply to any person who resigned judicial
office to enter military service in time of national emergency
declared by the President prior to the authorization by law of
military leave, if he or she returned to judicial office within 90
days after his or her separation from military service.
SEC. 127.4. Section 75033 of the Government Code is amended to
read:
75033. Notwithstanding any other provision of this chapter, if
the service of a judge, who has been elected or appointed as such, is
discontinued by any means other than death, resignation, recall,
impeachment, or retirement pursuant to this chapter, he or she shall
have the right to elect in writing filed with the Judges' Retirement
System within 90 days thereafter, and without right of revocation,
whether to allow his or her accumulated contributions to remain in
the fund. A judge who after the effective date of the 1972
amendments to this section leaves his or her office to accept any
lucrative office under the United States within the purview of
Section 7 of Article VII of the California Constitution shall not be
eligible for deferred retirement under this section. Failure to make
the election shall be deemed an irrevocable election to withdraw his
or her accumulated contributions. A judge who so elects to allow
his or her accumulated contributions to remain in the fund shall,
upon his or her application therefor to the Judges' Retirement System
be retired, and after attaining age 65 receive a retirement
allowance based upon the judicial service with which he or she is
credited, in the same manner as other judges, except that his or her
retirement allowance is an annual amount equal to 5 percent of the
compensation payable, at the time payments of the allowance fall due,
to the judge holding the office that the retired judge last held
prior to the discontinuance of his or her service as judge,
multiplied by the number of years and fractions of years of service
with which the retired judge is entitled to be credited at the time
of such discontinuance of his or her service, not to exceed eight
years.
This section does not apply to any person who becomes a judge
after January 1, 1974.
The amendments to this section during 1977 are also applicable to
persons who elected to allow their accumulated contributions to
remain in the fund prior to January 1, 1978.
SEC. 127.5. Section 75060.1 of the Government Code is amended to
read:
75060.1. Notwithstanding any provision of law to the contrary,
every judge retired for disability before or after the effective date
of this section shall receive a retirement allowance in an amount
that he or she would have received had he or she retired after the
effective date of this section. This section does not give any
retired judge a claim against the state for any increase in
retirement allowance or other benefit for time prior to the effective
date of this section.
SEC. 127.6. Section 75077 of the Government Code is amended to
read:
75077. The surviving spouse of a judge who qualifies, as
prescribed in Section 75075, to receive the benefits accorded by this
article and who dies during retirement shall receive, until death or
remarriage, an allowance equal to one-half of the retirement
allowance that would be payable to the judge were he or she living
and receiving the benefits accorded by this article.
SEC. 127.7. Section 75083 of the Government Code is amended to
read:
75083. Any judge retired pursuant to this chapter who is
appointed by the Supreme Court or any court of appeal, or division
thereof, to act as a master or referee in any proceeding pending
before those courts or before the Commission on Judicial Performance,
shall be paid while so acting, in addition to his or her retirement
allowance (taken without reduction on account of any election
pursuant to Article 3.5 (commencing with Section 75070)) the
difference, if any, between the retirement allowance and the
compensation of a judge of the court from which he or she retired.
When appointed to act as referee in a county other than that in
which he or she resides, he or she shall also be allowed his or her
necessary expenses for travel, board, and lodging incurred in the
discharge of that appointment.
The extra compensation and expenses, if any, shall be chargeable
to the state.
SEC. 127.8. Section 75095.5 of the Government Code is amended to
read:
75095.5. (a) Any election of any judge who became a municipal
court judge on May 23, 1980, and died on September 18, 1983, to come
within the provisions of this article, which was filed with the
Secretary of State on September 22, 1983, shall become effective on
the date filed.
(b) The surviving spouse of the person so electing who was
previously eligible to come within this article and did not do so,
shall pay all of the contributions he or she would have made pursuant
to Section 75097 had he or she been covered by this article as soon
as eligible therefor.
SEC. 127.9. Section 75104 of the Government Code
is amended to read:
75104. (a) Except as otherwise provided in subdivisions (b) and
(c), should any judge die, resign, or cease to be a judge prior to
his or her retirement, or die after electing to allow his or her
accumulated contributions to remain in the fund pursuant to Section
75033 but prior to attaining age 65, the amount of his or her
accumulated contribution shall be paid to his or her beneficiary
nominated by written designation duly filed with the Judges'
Retirement System, or to him or her, as the case may be. If an
allowance is paid to a surviving spouse pursuant to this chapter, no
payment shall be made pursuant to this section.
(b) A judge who has filed a declaration of candidacy for election
or reelection to any judicial office may not withdraw his or her
contributions until after the election. If a judge is elected or
reelected to a judicial office, he or she may not withdraw his or her
contributions until he or she has declined to accept the office or
has ceased to hold the office to which he or she has been elected.
(c) A judge who has been appointed, commissioned, or nominated to
any judicial office of this state may not withdraw his or her
contributions until he or she has declined to serve or terminated his
or her service in the latter office.
SEC. 128. Section 75104.4 of the Government Code is amended to
read:
75104.4. (a) The surviving spouse of any judge who dies on or
after January 1, 1954, but before retirement and after becoming
eligible for retirement pursuant to Section 75025 or 75033 or who
dies on or after January 1, 1954, while serving as judge and has
served as a judge for 30 years, shall receive an allowance equal to
one-half of the amount of the unmodified retirement allowance that
would be payable to the judge were he or she living and retired under
this chapter. The allowance is payable commencing upon the day
following the date of the death of the judge and continuing until the
death or remarriage of the surviving spouse. If, pursuant to this
section, an allowance is paid to the surviving spouse of a judge, no
payment shall be made pursuant to Section 75104 or 75104.5.
(b) The Legislature hereby finds and declares that the payment of
allowances to the surviving spouse of a judge pursuant to this
section, as amended at the 1959 Regular Session of the Legislature,
serves a public purpose in that it promotes the public welfare by
encouraging experienced jurists to continue their service in the
expectation that the Legislature will fairly provide for their
surviving spouses under changing circumstances, as the Legislature is
now doing for spouses of judges who have heretofore died. Continued
service by, and increased efficiency of, judges secure in this
knowledge will more than compensate the state for any increased
expense for allowances to surviving spouses provided by the amendment
enacted at the 1959 session of the Legislature.
SEC. 128.1. Section 75104.5 of the Government Code is amended to
read:
75104.5. Upon the death of a judge before retirement there shall
be paid to his or her beneficiary, if he or she has designated one,
and if not, to his or her estate, in addition to any other benefits
provided by this chapter or by Division 4 of the Labor Code, an
amount equal to one-twelfth of the annual compensation of that judge
during the 12 months immediately preceding his or her death,
multiplied by the completed number of years of service as a judge,
but not to exceed one-half of the judge's annual compensation. The
benefit accorded by this section is not payable if the deceased judge'
s spouse survives him or her and is entitled to receive an allowance
for life pursuant to the provisions of this chapter.
SEC. 128.2. Section 75106 of the Government Code is amended to
read:
75106. The State Treasurer is the custodian of the Judges'
Retirement Fund. At the end of each month the Judges' Retirement
System shall ascertain the written notices of voluntary retirement
and the written certificates of involuntary retirement that have been
filed with the Judges' Retirement System and cause warrants to be
drawn upon the State Treasury in favor of each retired judge for the
amount of the retirement allowance to which he or she is entitled.
SEC. 128.3. Section 71.7 of the Harbors and Navigation Code, as
added by Section 2 of Chapter 1231 of the Statutes of 1994, is
repealed.
SEC. 128.5. Section 1276.65 of the Health and Safety Code is
amended to read:
1276.65. (a) For purposes of this section, the following
definitions shall apply:
(1) "Direct caregiver" means a registered nurse, as referred to in
Section 2732 of the Business and Professions Code, a licensed
vocational nurse, as referred to in Section 2864 of the Business and
Professions Code, a psychiatric technician, as referred to in Section
4516 of the Business and Professions Code, and a certified nurse
assistant, as defined in Section 1337.
(2) "Skilled nursing facility" means a skilled nursing facility as
defined in subdivision (c) of Section 1250.
(b) A person employed to provide services such as food
preparation, housekeeping, laundry, or maintenance services shall not
provide nursing care to residents and shall not be counted in
determining ratios under this section.
(c) (1) Notwithstanding any other provision of law, the State
Department of Health Services shall develop regulations that become
effective August 1, 2003, that establish staff-to-patient ratios for
direct caregivers working in a skilled nursing facility. These
ratios shall include separate licensed nurse staff-to-patient ratios
in addition to the ratios established for other direct caregivers.
(2) The department, in developing staff-to-patient ratios for
direct caregivers and licensed nurses required by this section, shall
convert the existing requirement under Section 1276.5 of this code
and Section 14110.7 of the Welfare and Institutions Code for 3.2
nursing hours per patient day of care and shall ensure that no less
care is given than is required pursuant to Section 1276.5 of this
code and Section 14110.7 of the Welfare and Institutions Code.
Further, the department shall develop the ratios in a manner that
minimizes additional state costs, maximizes resident access to care,
and takes into account the length of the shift worked. In developing
the regulations, the department shall develop a procedure for
facilities to apply for a waiver that addresses individual patient
needs except that in no instance shall the minimum staff-to-patient
ratios be less than the 3.2 nursing hours per patient day required
under Section 1276.5 of this code and Section 14110.7 of the Welfare
and Institutions Code.
(d) The staffing ratios to be developed pursuant to this section
shall be minimum standards only. Skilled nursing facilities shall
employ and schedule additional staff as needed to ensure quality
resident care based on the needs of individual residents and to
ensure compliance with all relevant state and federal staffing
requirements.
(e) No later than January 1, 2006, and every five years
thereafter, the department shall consult with consumers, consumer
advocates, recognized collective bargaining agents, and providers to
determine the sufficiency of the staffing standards provided in this
section and may adopt regulations to increase the minimum staffing
ratios to adequate levels.
(f) In a manner pursuant to federal requirements, effective
January 1, 2003, every skilled nursing facility shall post
information about staffing levels that includes the current number of
licensed and unlicensed nursing staff directly responsible for
resident care in the facility. This posting shall include staffing
requirements developed pursuant to this section.
(g) (1) Notwithstanding any other provision of law, the department
shall inspect for compliance with this section during state and
federal periodic inspections, including, but not limited to, those
inspections required under Section 1422. This inspection requirement
shall not limit the department's authority in other circumstances to
cite for violations of this section or to inspect for compliance
with this section.
(2) A violation of the regulations developed pursuant to this
section may constitute a class "B," "A," or "AA" violation pursuant
to the standards set forth in Section 1424.
(h) The requirements of this section are in addition to any
requirement set forth in Section 1276.5 of this code and Section
14110.7 of the Welfare and Institutions Code.
(i) Initial implementation of the staffing ratio developed
pursuant to requirements set forth in this section shall be
contingent on an appropriation in the annual Budget Act or another
statute.
(j) In implementing this section, the department may contract as
necessary, on a bid or nonbid basis, for professional consulting
services from nationally recognized higher education and research
institutions, or other qualified individuals and entities not
associated with a skilled nursing facility, with demonstrated
expertise in long-term care. This subdivision establishes an
accelerated process for issuing contracts pursuant to this section
and contracts entered into pursuant to this section shall be exempt
from the requirements of Chapter 1 (commencing with Section 10100)
and Chapter 2 (commencing with Section 10290) of Part 2 of Division 2
of the Public Contract Code.
(k) This section shall not apply to facilities defined in Section
1276.9.
SEC. 129. The heading of Chapter 2.5 (commencing with Section
1399.900) of Division 2 of the Health and Safety Code is amended and
renumbered to read:
CHAPTER 2.25. DISEASE MANAGEMENT
SEC. 130. Section 11054 of the Health and Safety Code is amended
to read:
11054. (a) The controlled substances listed in this section are
included in Schedule I.
(b) Opiates. Unless specifically excepted or unless listed in
another schedule, any of the following opiates, including their
isomers, esters, ethers, salts, and salts of isomers, esters, and
ethers whenever the existence of those isomers, esters, ethers, and
salts is possible within the specific chemical designation:
(1) Acetylmethadol.
(2) Allylprodine.
(3) Alphacetylmethadol (except levoalphacetylmethadol, also known
as levo-alpha- acetylmethadol, levomethadyl acetate, or LAAM).
(4) Alphameprodine.
(5) Alphamethadol.
(6) Benzethidine.
(7) Betacetylmethadol.
(8) Betameprodine.
(9) Betamethadol.
(10) Betaprodine.
(11) Clonitazene.
(12) Dextromoramide.
(13) Diampromide.
(14) Diethylthiambutene.
(15) Difenoxin.
(16) Dimenoxadol.
(17) Dimepheptanol.
(18) Dimethylthiambutene.
(19) Dioxaphetyl butyrate.
(20) Dipipanone.
(21) Ethylmethylthiambutene.
(22) Etonitazene.
(23) Etoxeridine.
(24) Furethidine.
(25) Hydroxypethidine.
(26) Ketobemidone.
(27) Levomoramide.
(28) Levophenacylmorphan.
(29) Morpheridine.
(30) Noracymethadol.
(31) Norlevorphanol.
(32) Normethadone.
(33) Norpipanone.
(34) Phenadoxone.
(35) Phenampromide.
(36) Phenomorphan.
(37) Phenoperidine.
(38) Piritramide.
(39) Proheptazine.
(40) Properidine.
(41) Propiram.
(42) Racemoramide.
(43) Tilidine.
(44) Trimeperidine.
(45) Any substance which contains any quantity of acetylfentanyl
(N-(1-phenethyl-4-piperidinyl) acetanilide) or a derivative thereof.
(46) Any substance which contains any quantity of the thiophene
analog of acetylfentanyl (N-(1-(2-(2-thienyl)ethyl)-4-piperidinyl)
acetanilide) or a derivative thereof.
(47) 1-Methyl-4-Phenyl-4-Propionoxypiperidine (MPPP).
(48) 1-(2-Phenethyl)-4-Phenyl-4-Acetyloxypiperidine (PEPAP).
(c) Opium derivatives. Unless specifically excepted or unless
listed in another schedule, any of the following opium derivatives,
its salts, isomers, and salts of isomers whenever the existence of
those salts, isomers, and salts of isomers is possible within the
specific chemical designation:
(1) Acetorphine.
(2) Acetyldihydrocodeine.
(3) Benzylmorphine.
(4) Codeine methylbromide.
(5) Codeine-N-Oxide.
(6) Cyprenorphine.
(7) Desomorphine.
(8) Dihydromorphine.
(9) Drotebanol.
(10) Etorphine (except hydrochloride salt).
(11) Heroin.
(12) Hydromorphinol.
(13) Methyldesorphine.
(14) Methyldihydromorphine.
(15) Morphine methylbromide.
(16) Morphine methylsulfonate.
(17) Morphine-N-Oxide.
(18) Myrophine.
(19) Nicocodeine.
(20) Nicomorphine.
(21) Normorphine.
(22) Pholcodine.
(23) Thebacon.
(d) Hallucinogenic substances. Unless specifically excepted or
unless listed in another schedule, any material, compound, mixture,
or preparation, which contains any quantity of the following
hallucinogenic substances, or which contains any of its salts,
isomers, and salts of isomers whenever the existence of those salts,
isomers, and salts of isomers is possible within the specific
chemical designation (for purposes of this subdivision only, the term
"isomer" includes the optical, position, and geometric isomers):
(1) 4-bromo-2,5-dimethoxy-amphetamine--Some trade or other names:
4-bromo-2,5-dimethoxy-alpha-methylphenethylamine; 4-bromo-2,5-DMA.
(2) 2,5-dimethoxyamphetamine--Some trade or other names:
2,5-dimethoxy-alpha-methylphenethylamine; 2,5-DMA.
(3) 4-methoxyamphetamine--Some trade or other names:
4-methoxy-alpha-methylphenethylamine, paramethoxyamphetamine, PMA.
(4) 5-methoxy-3,4-methylenedioxy-amphetamine.
(5) 4-methyl-2,5-dimethoxy-amphetamine--Some trade or other names:
4-methyl-2,5-dimethoxy-alpha-methylphenethylamine; "DOM"; and "STP."
(6) 3,4-methylenedioxy amphetamine.
(7) 3,4,5-trimethoxy amphetamine.
(8) Bufotenine--Some trade or other names: 3-
(beta-dimethylaminoethyl)-5-hydroxyindole; 3-(2-dimethylaminoethyl)-5
indolol; N,N-dimethylserolonin, 5-hydroxy-N,N-dimethyltryptamine;
mappine.
(9) Diethyltryptamine--Some trade or other names:
N,N-Diethyltryptamine; DET.
(10) Dimethyltryptamine--Some trade or other names: DMT.
(11) Ibogaine--Some trade or other names: 7-Ethyl-6,6beta,
7,8,9,10,12,13-octahydro-2-methoxy-6,9-methano-5H-pyrido (1',2':1,2)
azepino (5,4-b) indole; Tabernantheiboga.
(12) Lysergic acid diethylamide.
(13) Marijuana.
(14) Mescaline.
(15) Peyote--Meaning all parts of the plant presently classified
botanically as Lophophora williamsii Lemaire, whether growing or not,
the seeds thereof, any extract from any part of the plant, and every
compound, manufacture, salts, derivative, mixture, or preparation of
the plant, its seeds or extracts (interprets 21 U.S.C. Sec. 812(c),
Schedule 1(c)(12)).
(16) N-ethyl-3-piperidyl benzilate.
(17) N-methyl-3-piperidyl benzilate.
(18) Psilocybin.
(19) Psilocyn.
(20) Tetrahydrocannabinols. Synthetic equivalents of the
substances contained in the plant, or in the resinous extractives of
Cannabis, sp. and/or synthetic substances, derivatives, and their
isomers with similar chemical structure and pharmacological activity
such as the following: delta 1 cis or trans tetrahydrocannabinol,
and their optical isomers; delta 6 cis or trans tetrahydrocannabinol,
and their optical isomers; delta 3,4 cis or trans
tetrahydrocannabinol, and its optical isomers.
(Since nomenclature of these substances is not internationally
standardized, compounds of these structures, regardless of numerical
designation of atomic positions covered).
(21) Ethylamine analog of phencyclidine--Some trade or other
names: N-ethyl-1-phenylcyclohexylamine, (1-phenylcyclohexyl)
ethylamine, N-(1-phenylcyclohexyl) ethylamine, cyclohexamine, PCE.
(22) Pyrrolidine analog of phencyclidine--Some trade or other
names: 1-(1-phenylcyclohexyl)-pyrrolidine, PCP, PHP.
(23) Thiophene analog of phencyclidine--Some trade or other names:
1-(1-(2 thienyl)-cyclohexyl)-piperidine, 2-thienyl analog of
phencyclidine, TPCP, TCP.
(e) Depressants. Unless specifically excepted or unless listed in
another schedule, any material, compound, mixture, or preparation
which contains any quantity of the following substances having a
depressant effect on the central nervous system, including its salts,
isomers, and salts of isomers whenever the existence of those salts,
isomers, and salts of isomers is possible within the specific
chemical designation:
(1) Mecloqualone.
(2) Methaqualone.
(3) Gamma hydroxybutyric acid (also known by other names such as
GHB; gamma hydroxy butyrate; 4-hydroxybutyrate; 4-hydroxybutanoic
acid; sodium oxybate; sodium oxybutyrate), including its immediate
precursors, isomers, esters, ethers, salts, and salts of isomers,
esters, and ethers, including, but not limited to,
gammabutyrolactone, for which an application has not been approved
under Section 505 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Sec. 355).
(f) Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture, or preparation which
contains any quantity of the following substances having a stimulant
effect on the central nervous system, including its isomers:
(1) Cocaine base.
(2) Fenethylline, including its salts.
(3) N-Ethylamphetamine, including its salts.
SEC. 131. Section 11377 of the Health and Safety Code is amended
to read:
11377. (a) Except as authorized by law and as otherwise provided
in subdivision (b) or Section 11375, or in Article 7 (commencing with
Section 4211) of Chapter 9 of Division 2 of the Business and
Professions Code, every person who possesses any controlled substance
which is (1) classified in Schedule III, IV, or V, and which is not
a narcotic drug, (2) specified in subdivision (d) of Section 11054,
except paragraphs (13), (14), (15), and (20) of subdivision (d), (3)
specified in paragraph (11) of subdivision (c) of Section 11056, (4)
specified in paragraph (2) or (3) of subdivision (f) of Section
11054, or (5) specified in subdivision (d), (e), or (f) of Section
11055, unless upon the prescription of a physician, dentist,
podiatrist, or veterinarian, licensed to practice in this state,
shall be punished by imprisonment in a county jail for a period of
not more than one year or in the state prison.
(b) (1) Any person who violates subdivision (a) by unlawfully
possessing a controlled substance specified in subdivision (f) of
Section 11056, and who has not previously been convicted of a
violation involving a controlled substance specified in subdivision
(f) of Section 11056, is guilty of a misdemeanor.
(2) Any person who violates subdivision (a) by unlawfully
possessing a controlled substance specified in subdivision (g) of
Section 11056 is guilty of a misdemeanor.
(c) In addition to any fine assessed under subdivision (b), the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates subdivision (a), with the proceeds of this
fine to be used in accordance with Section 1463.23 of the Penal Code.
The court shall, however, take into consideration the defendant's
ability to pay, and no defendant shall be denied probation because of
his or her inability to pay the fine permitted under this
subdivision.
SEC. 132. Section 11382 of the Health and Safety Code is amended
to read:
11382. Every person who agrees, consents, or in any manner offers
to unlawfully sell, furnish, transport, administer, or give any
controlled substance which is (1) classified in Schedule III, IV, or
V and which is not a narcotic drug, or (2) specified in subdivision
(d) of Section 11054, except paragraphs (13), (14), (15), and (20) of
subdivision (d), specified in paragraph (11) of subdivision (c) of
Section 11056, or specified in subdivision (d), (e), or (f) of
Section 11055, to any person, or offers, arranges, or negotiates to
have that controlled substance unlawfully sold, delivered,
transported, furnished, administered, or given to any person and then
sells, delivers, furnishes, transports, administers, or gives, or
offers, or arranges, or negotiates to have sold, delivered,
transported, furnished, administered, or given to any person any
other liquid, substance, or material in lieu of that controlled
substance shall be punished by imprisonment in the county jail for
not more than one year, or in the state prison.
SEC. 133. Section 25395.20 of the Health and Safety Code is
amended to read:
25395.20. (a) For purposes of this article, the following
definitions shall apply:
(1) "Account" means the Cleanup Loans and Environmental Assistance
to Neighborhoods Account established pursuant to subdivision (b).
(2) (A) "Brownfield" means property that meets all of the
following conditions:
(i) It is located in an urban area.
(ii) It was previously the site of an economic activity that is no
longer in operation at that location.
(iii) It has been vacant or has had no occupant engaged in
year-round economically productive activities for a period of not
less than the 12 months previous to the date of application for a
loan pursuant to this article.
(B) "Brownfield" does not include any of the following:
(i) Property listed, or proposed for listing, on the National
Priorities List pursuant to the federal act (42 U.S.C. Sec. 9605 (a)
(8)(B)).
(ii) Property that is, or was, owned or operated by a department,
agency, or instrumentality of the United States.
(iii) Property that will be the site of a contiguous expansion or
improvement of an operating industrial or commercial facility, unless
the property is a brownfield described in subparagraph (C) of
paragraph (6).
(3) "Cleanup and abatement order" means an order issued by a
regional board pursuant to Section 13304 of the Water Code.
(4) "Cleanup Loans and Environmental Assistance to Neighborhoods
Program" or "CLEAN" means the loan program established by the
department pursuant to Section 25395.22, to finance the performance
of actions necessary to respond to the release or threatened release
of hazardous material on an eligible property.
(5) "Economic activity" means a governmental activity, a
commercial, agricultural, industrial, or not-for-profit enterprise,
or other economic or business concern.
(6) "Eligible property" means a site that is any of the following:
(A) A brownfield.
(B) An underutilized property that is any of the following:
(i) A property described in clause (v) of subparagraph (D) of
paragraph (16).
(ii) A property located in an enterprise zone established pursuant
to the Enterprise Zone Act (Chapter 12.8 (commencing with Section
7070) of Division 7 of Title 1 of the Government Code), in a project
area for which a redevelopment plan has been approved pursuant to
Article 4 (commencing with Section 33300) of Chapter 4 of Part 1 of
Division 24, or in an eligible area, as determined by the Technology,
Trade, and Commerce Agency pursuant to paragraph (2) of subdivision
(c) of Section 7072 of the Government Code.
(iii) A property, the redevelopment of which will result in any of
the following:
(I) An increase in the number of full-time jobs that is at least
100 percent greater than the number of jobs provided by the economic
activity located on the property before redevelopment occurred.
(II) An increase in property taxes paid to the local government
that is at least 100 percent greater than the property taxes paid by
the property owner before redevelopment occurred.
(III) Sales tax revenues to the local government that are
sufficient to defray the costs of providing municipal services to the
property after the redevelopment occurs.
(IV) Housing for very low, low-, or moderate-income households, as
defined in paragraph (2) of subdivision (h) of Section 65589.5 of
the Government Code.
(V) The construction of new or expanded school facilities, public
day care centers, parks, or community recreational facilities.
(C) A brownfield or an underutilized property described in clause
(ii) of subparagraph (B) that will be the site of a contiguous
expansion of an operating industrial or commercial facility owned or
operated by one of the following:
(i) A small business.
(ii) A nonprofit corporation formed under the Nonprofit Public
Benefit Corporation Law (Part 2 (commencing with Section 5110) of
Division 2 of Title 1 of the Corporations Code) or the Nonprofit
Religious Corporation Law (Part 4 (commencing with Section 9110) of
Division 2 of Title 1 of the Corporations Code).
(iii) A small business incubator that is undertaking the expansion
with the assistance of a grant authorized by Section 15339.3 of the
Government Code or a loan guarantee provided pursuant to Section
14090 of the Corporations Code.
(7) "Eligible property" does not include any of the following:
(A) Property listed or proposed for listing on the National
Priorities List pursuant to the federal act (42 U.S.C. Sec. 9605 (a)
(8)(B)).
(B) Property that is, or was, owned or operated by a department,
agency, or instrumentality of the United States.
(C) Property that will be the site of a contiguous expansion or
improvement of an operating industrial or commercial facility, unless
the property meets the criteria specified in subparagraph (C) of
paragraph (6).
(8) (A) "Hazardous material" means a substance or waste that,
because of its physical, chemical, or other characteristics, may pose
a risk of endangering human health or safety or of degrading the
environment. "Hazardous material" includes, but is not limited to,
all of the following:
(i) A hazardous substance, as defined in Section 25281 or 25316,
including the substances specified in Section 25317.
(ii) A hazardous waste, as defined in Section 25117.
(iii) A waste, as defined in Section 101075, or as defined in
Section 13050 of the Water Code.
(B) "Hazardous material" does not include undisturbed naturally
occurring hazardous material unless it will adversely affect the
reasonable use of a property after response action is completed.
(9) "Implementation costs," for purposes of the expenditure of any
funds pursuant to this article, includes, but is not limited to, the
costs of overseeing and reviewing preliminary endangerment
assessments and response actions that are financed by a loan issued
pursuant to this article, including oversight conducted by a regional
board pursuant to Section 25395.28.
(10) "Investigating site contamination program" means the loan
program established by the department pursuant to Section 25395.21 to
conduct a preliminary endangerment assessment of a brownfield or an
underutilized urban property.
(11) "Leaking underground fuel tank" has the same meaning as
"tank," as defined in Section 25299.24.
(12) "No longer in operation" means an economic activity that is,
or previously was, located on a property that is not conducting
operations on the property of the type usually associated with the
economic activity.
(13) "Project" means any response action, and the planned future
development, included in an application for a loan pursuant to
Section 25395.22.
(14) "Property" means real property, as defined in Section 658 of
the Civil Code.
(15) "Small business" means an independently owned and operated
business, that is not dominant in its field of operation, that,
together with affiliates, has 100 or fewer employees, and that has
average annual gross receipts of ten million dollars ($10,000,000) or
less over the previous three years, or a business that is a
manufacturer, as defined in Section 14837 of the Government Code,
with 100 or fewer employees.
(16) "Underutilized property" means property that meets all of the
following conditions:
(A) It is located in an urban area.
(B) An economic activity is conducted on the property.
(C) It is the subject of a proposal for development pursuant to
this article.
(D) One of the following applies:
(i) The economic activity on the property is irregular or
intermittent in nature and uses the property for productive purposes
less than four months in any calendar year.
(ii) The economic activity on the property employs less than 25
percent of the property for productive purposes.
(iii) The structures, infrastructure, and other facilities on the
property are antiquated, obsolete, or in such poor repair that they
cannot be used for the purposes for which they were originally
constructed and require replacement in order to implement the
redevelopment proposal.
(iv) The economic activity conducted on the property is a parking
facility or an activity that offers a similar marginal economic
service and the facility or activity will be replaced when the
property is redeveloped.
(v) The property is adjacent to one or more brownfields or
underutilized properties that are the subject of a project under this
article and its inclusion in the project is necessary in order to
ensure that the redevelopment of the brownfield or brownfields or
underutilized property or underutilized properties occurs.
(E) An underutilized property does not include any of the
following:
(i) Property listed or proposed for listing on the National
Priorities List pursuant to the federal act (42 U.S.C. Sec. 9605 (a)
(8)(B)).
(ii) Property that is, or was, owned or operated by a department,
agency, or instrumentality of the United States.
(iii) Property that will be the site of a contiguous expansion or
improvement of an operating industrial or commercial facility, unless
the property is an underutilized property described in subparagraph
(C) of paragraph (6).
(17) "Regional board" means a California regional water quality
control board.
(18) "State board" means the State Water Resources Control Board.
(19) "Urban area" means either of the following:
(A) The central portion of a city or a group of contiguous cities
with a population of 50,000 or more, together with adjacent densely
populated areas having a population density of at least 1,000 persons
per square mile.
(B) An urbanized area as defined in paragraph (2) of subdivision
(b) of Section 21080.7 of the Public Resources Code.
(b) The Cleanup Loans and Environmental Assistance to
Neighborhoods Account is hereby established in the General Fund to
provide low-interest loans to qualified applicants for the purpose of
funding preliminary endangerment assessments and response actions at
brownfields and underutilized properties located in the state
pursuant to this article, and for any other purpose determined by the
department to stimulate the redevelopment of brownfields and
underutilized properties, if the department determines that the
redevelopment will result in the overall improvement of the community
in which the property is located and will provide a reasonable
economic or social benefit, in accordance with subdivision (c). All
of the following moneys shall be deposited in the account:
(1) Funds appropriated by the Legislature for the purposes of this
article.
(2) Notwithstanding Section 16475 of the Government Code, any
interest earned upon money deposited into the account.
(3) Proceeds from loan repayments.
(4) Proceeds from the sale of property pursuant to this article
that is the subject of foreclosure or its equivalent, as defined in
subdivision (f) of Section 25548.1, and proceeds from the enforcement
of any other security interest.
(c) (1) Except as provided in paragraph (2), notwithstanding
Section 13340 of the Government Code, the money in the account is
continuously appropriated without regard to fiscal years to the
department for the purpose of providing loans pursuant to Sections
25395.21 and 25395.22 and for the purpose of providing subsidies for
environmental insurance pursuant to Article 8.7 (commencing with
Section 25395.40), the California Financial Assurance and Insurance
for Redevelopment Program.
(2) The money in the account may be expended by the department, a
regional board, the state board, and the agency for the
implementation and administration of this article and for
implementation and administration of the California Financial
Assurance and Insurance for Redevelopment Program (Article 7
(commencing with Section 25395.40)), only upon appropriation by the
Legislature in the annual Budget Act or in another measure.
SEC. 134. Section 26148 of the Health and Safety Code is amended
to read:
26148. (a) Residential landlords shall provide written disclosure
to prospective tenants of the potential health risks and the health
impact that may result from exposure to mold by distributing a
consumer-oriented booklet developed and disseminated by the
department.
(b) The requirements of this section shall be provided to
prospective residential tenants prior to entering the rental or lease
agreement.
(c) The requirements of this section shall not apply until the
first January 1 or July 1 that occurs at least six months after the
department approves the consumer-oriented booklet, as described in
subdivision (a).
SEC. 135. Section 32121 of the Health and Safety Code, as amended
by Section 1 of Chapter 184 of the Statutes of 2001, is amended to
read:
32121. Each local district shall have and may exercise the
following powers:
(a) To have and use a corporate seal and alter it at its pleasure.
(b) To sue and be sued in all courts and places and in all actions
and proceedings whatever.
(c) To purchase, receive, have, take, hold, lease, use, and enjoy
property of every kind and description within and without the limits
of the district, and to control, dispose of, convey, and encumber the
same and create a leasehold interest in the same for the benefit of
the district.
(d) To exercise the right of eminent domain for the purpose of
acquiring real or personal property of every kind necessary to the
exercise of any of the powers of the district.
(e) To establish one or more trusts for the benefit of the
district, to administer any trust declared or created for the benefit
of the district, to designate one or more trustees for trusts
created by the district, to receive by gift, devise, or bequest, and
hold in trust or otherwise, property, including corporate securities
of all kinds, situated in this state or elsewhere, and where not
otherwise provided, dispose of the same for the benefit of the
district.
(f) To employ legal counsel to advise the board of directors in
all matters pertaining to the business of the district, to perform
the functions in respect to the legal affairs of the district as the
board may direct, and to call upon the district attorney of the
county in which the greater part of the land in the district is
situated for legal advice and assistance in all matters concerning
the district, except that if that county has a county counsel, the
directors may call upon the county counsel for legal advice and
assistance.
(g) To employ any officers and employees, including architects and
consultants, the board of directors deems necessary to carry on
properly the business of the district.
(h) To prescribe the duties and powers of the health care facility
administrator, secretary, and other officers and employees of any
health care facilities of the district, to establish offices as may
be appropriate and to appoint board members or employees to those
offices, and to determine the number of, and appoint, all officers
and employees and to fix their compensation. The officers and
employees shall hold their offices or positions at the pleasure of
the boards of directors.
(i) To do any and all things that an individual might do that are
necessary for, and to the advantage of, a health care facility and a
nurses' training school, or a child care facility for the benefit of
employees of the health care facility or residents of the district.
(j) To establish, maintain, and operate, or provide assistance in
the operation of, one or more health facilities or health services,
including, but not limited to, outpatient programs, services, and
facilities; retirement programs, services, and facilities; chemical
dependency programs, services, and facilities; or other health care
programs, services, and facilities and activities at any location
within or without the district for the benefit of the district and
the people served by the district.
"Health care facilities," as used in this subdivision, means those
facilities defined in subdivision (b) of Section 32000.1 and
specifically includes freestanding chemical dependency recovery
units. "Health facilities," as used in this subdivision, may also
include those facilities defined in subdivision (d) of Section 15432
of the Government Code.
(k) To do any and all other acts and things necessary to carry out
this division.
(l) To acquire, maintain, and operate ambulances or ambulance
services within and without the district.
(m) To establish, maintain, and operate, or provide assistance in
the operation of, free clinics, diagnostic and testing centers,
health education programs, wellness and prevention programs,
rehabilitation, aftercare, and any other health care services
provider, groups, and organizations that are necessary for the
maintenance of good physical and mental health in the communities
served by the district.
(n) To establish and operate in cooperation with its medical staff
a coinsurance plan between the hospital district and the members of
its attending medical staff.
(o) To establish, maintain, and carry on its activities through
one or more corporations, joint ventures, or partnerships for the
benefit of the health care district.
(p) (1) To transfer, at fair market value, any part of its assets
to one or more corporations to operate and maintain the assets. A
transfer pursuant to this paragraph shall be deemed to be at fair
market value if an independent consultant, with expertise in methods
of appraisal and valuation and in accordance with applicable
governmental and industry standards for appraisal and valuation,
determines that fair and reasonable consideration is to be received
by the district for the transferred district assets. Before the
district transfers, pursuant to this paragraph, 50 percent or more of
the district's assets to one or more corporations, in sum or by
increment, the elected board shall, by resolution, submit to the
voters of the district a measure proposing the transfer. The measure
shall be placed on the ballot of a special election held upon the
request of the district or the ballot of the next regularly scheduled
election occurring at least 88 days after the resolution of the
board. If a majority of the voters voting on the measure vote in its
favor, the transfer shall be approved. The campaign disclosure
requirements applicable to local measures provided under Chapter 4
(commencing with Section 84100) of Title 9 of the Government Code
shall apply to this election.
(2) To transfer, for the benefit of the communities served by the
district, in the absence of adequate consideration, any part of the
assets of the district, including, without limitation, real property,
equipment, and other fixed assets, current assets, and cash,
relating to the operation of the district's health care facilities to
one or more nonprofit corporations to operate and maintain the
assets.
(A) A transfer of 50 percent or more of the district's assets, in
sum or by increment, pursuant to this paragraph shall be deemed to be
for the benefit of the communities served by the district only if
all of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least five properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement provides that the hospital district
shall approve all initial board members of the nonprofit corporation
and any subsequent board members as may be specified in the transfer
agreement.
(iii) The transfer agreement provides that all assets transferred
to the nonprofit corporation, and all assets accumulated by the
corporation during the term of the transfer agreement arising out of,
or from, the operation of the transferred assets, are to be
transferred back to the district upon termination of the transfer
agreement, including any extension of the transfer agreement.
(iv) The transfer agreement commits the nonprofit corporation to
operate and maintain the district's health care facilities and its
assets for the benefit of the communities served by the district.
(v) The transfer agreement requires that any funds received from
the district at the outset of the agreement or any time thereafter
during the term of the agreement be used only to reduce district
indebtedness, to acquire needed equipment for the district health
care facilities, to operate, maintain, and make needed capital
improvements to the district's health care facilities, to provide
supplemental health care services or facilities for the communities
served by the district, or to conduct other activities that would
further a valid public purpose if undertaken directly by the
district.
(B) A transfer of 33 percent or more but less than 50 percent of
the district's assets, in sum or by increment, pursuant to this
paragraph shall be deemed to be for the benefit of the communities
served by the district only if both of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least two properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement meets all of the requirements of
clauses (ii) to (v), inclusive, of subparagraph (A).
(C) A transfer of 10 percent or more but less than 33 percent of
the district's assets, in sum or by increment, pursuant to this
paragraph shall be deemed to be for the benefit of the communities
served by the district only if both of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least two properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement meets all of the requirements of
clauses (iii) to (v), inclusive, of subparagraph (A).
(D) Before the district transfers, pursuant to this paragraph, 50
percent or more of the district's assets to one or more nonprofit
corporations, in sum or by increment, the elected board shall, by
resolution, submit to the voters of the district a measure proposing
the transfer. The measure shall be placed on the ballot of a special
election held upon the request of the district or the ballot of the
next regularly scheduled election occurring at least 88 days after
the resolution of the board. If a majority of the voters voting on
the measure vote in its favor, the transfer shall be approved. The
campaign disclosure requirements applicable to local measures
provided under Chapter 4 (commencing with Section 84100) of Title 9
of the Government Code shall apply to this election.
(E) Notwithstanding the other provisions of this paragraph, a
hospital district shall not transfer any portion of its assets to a
private nonprofit organization that is owned or controlled by a
religious creed, church, or sectarian denomination in the absence of
adequate consideration.
(3) If the district board has previously transferred less than 50
percent of the district's assets pursuant to this subdivision, before
any additional assets are transferred, the board shall hold a public
hearing and shall make a public determination that the additional
assets to be transferred will not, in combination with any assets
previously transferred, equal 50 percent or more of the total assets
of the district.
(4) The amendments to this subdivision made during the 1991-92
Regular Session, and the amendments made to this subdivision and to
Section 32126 made during the 1993-94 Regular Session, shall only
apply to transfers made on or after the effective dates of the acts
amending this subdivision. The amendments to this subdivision made
during those sessions shall not apply to any of the following:
(A) A district that has discussed and adopted a board resolution,
prior to September 1, 1992, that authorizes the development of a
business plan for an integrated delivery system.
(B) A lease agreement, transfer agreement, or both between a
district and a nonprofit corporation that were in full force and
effect as of September 1, 1992, for as long as that lease agreement,
transfer agreement, or both remain in full force and effect.
(5) Notwithstanding paragraph (4), if substantial amendments are
proposed to be made to a transfer agreement described in subparagraph
(A) or (B) of paragraph (4), the amendments shall be fully discussed
in advance of the district board's decision to adopt the amendments
in at least two properly noticed open and public meetings in
compliance with Section 32106 and the Ralph M. Brown Act (Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5 of
the Government Code).
(6) Notwithstanding paragraphs (4) and (5), a transfer agreement
described in subparagraph (A) or (B) of paragraph (4) that provided
for the transfer of less than 50 percent of a district's assets shall
be subject to the requirements of this subdivision when subsequent
amendments to that transfer agreement would result in the transfer,
in sum or by increment, of 50 percent or more of a district's assets
to the nonprofit corporation.
(7) For purposes of this subdivision, a "transfer" means the
transfer of ownership of the assets of a district. A lease of the
real property or the tangible personal property of a district shall
not be subject to this subdivision except as specified in Section
32121.4 and as required under Section 32126.
(8) Districts that request a special election pursuant to
paragraph (1) or (2) shall reimburse counties for the costs of that
special election as prescribed pursuant to Section 10520 of the
Elections Code.
(9) (A) Nothing in this section, including subdivision (j), shall
be construed to permit a local district to obtain or be issued a
single consolidated license to operate a separate physical plant as a
skilled nursing facility or an intermediate care facility that is
not located within the boundaries of the district.
(B) Notwithstanding subparagraph (A), Eastern Plumas Health Care
District may obtain and be issued a single consolidated license to
operate a separate physical plant as a skilled nursing facility or an
intermediate care facility that is located on the campus of the
Sierra Valley District Hospital. This subparagraph shall have no
application to any other district and is intended only to address the
urgent need to preserve skilled nursing or intermediate care
services within the rural County of Sierra.
(C) Subparagraph (B) shall only remain operative until the Sierra
Valley District Hospital is annexed by the Eastern Plumas Health Care
District or January 1, 2008, whichever occurs first. In no event
shall Eastern Plumas Health Care District increase the number of
licensed beds at the Sierra Valley District Hospital during the
operative period of subparagraph (B).
(10) A transfer of any of the assets of a district to one or more
nonprofit corporations to operate and maintain the assets shall not
be required to meet paragraphs (1) to (9), inclusive, of this
subdivision if all of the following conditions apply at the time of
the transfer:
(A) The district has entered into a loan that is insured by the
State of California under Chapter 1 (commencing with Section 129000)
of Part 6 of Division 107.
(B) The district is in default of its loan obligations, as
determined by the Office of Statewide Health Planning and
Development.
(C) The Office of Statewide Health Planning and Development and
the district, in their best judgment, agree that the transfer of some
or all of the assets of the district to a nonprofit corporation or
corporations is necessary to cure the default, and will obviate the
need for foreclosure. This cure of default provision shall be
applicable prior to the office foreclosing on district hospital
assets. After the office has foreclosed on district hospital assets,
or otherwise taken possession in accordance with law, the office may
exercise all of its powers to deal with and dispose of hospital
property.
(D) The transfer and all arrangements necessary thereto are
discussed in advance of the transfer in at least one properly noticed
open and public meeting in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code). The meeting
referred to in this paragraph shall be noticed and held within 90
days of notice in writing to the district by the office of an event
of default. If the meeting is not held within this 90-day period,
the district shall be deemed to have waived this requirement to have
a meeting.
(11) If a transfer under paragraph (10) is a lease, the lease
shall provide that the assets shall revert to the district at the
conclusion of the leasehold interest. If the transfer is a sale, the
proceeds shall be used first to retire the obligation insured by the
office, then to retire any other debts of the district. After
providing for debts, any remaining funds shall revert to the
district.
(q) To contract for bond insurance, letters of credit, remarketing
services, and other forms of credit enhancement and liquidity
support for its bonds, notes, and other indebtedness and to enter
into reimbursement agreements, monitoring agreements, remarketing
agreements, and similar ancillary contracts in connection therewith.
(r) To establish, maintain, operate, participate in, or manage
capitated health care service plans, health maintenance
organizations, preferred provider organizations, and other managed
health care systems and programs properly licensed by the Department
of Insurance or the Department of Managed Care, at any location
within or without the district for the benefit of residents of
communities served by the district. However, that activity shall not
be deemed to result in, or constitute, the giving or lending of the
district's credit, assets, surpluses, cash, or tangible goods to, or
in aid of, any person, association, or corporation in violation of
Section 6 of Article XVI of the California Constitution.
Nothing in this section shall be construed to authorize activities
that corporations and other artificial legal entities are prohibited
from conducting by Section 2400 of the Business and Professions
Code.
Any agreement to provide health care coverage that is a health
care service plan, as defined in subdivision (f) of Section 1345,
shall be subject to Chapter 2.2 (commencing with Section 1340) of
Division 2, unless exempted pursuant to Section 1343 or 1349.2.
A district shall not provide health care coverage for any employee
of an employer operating within the communities served by the
district, unless the Legislature specifically authorizes, or has
authorized in this section or elsewhere, the coverage.
Nothing in this section shall be construed to authorize any
district to contribute its facilities to any joint venture that could
result in transfer of the facilities from district ownership.
(s) To provide health care coverage to members of the district's
medical staff, employees of the medical staff members, and the
dependents of both groups, on a self-pay basis.
(t) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 136. Section 32121 of the Health and Safety Code, as amended
by Section 2 of Chapter 184 of the Statutes of 2001, is amended to
read:
32121. Each local district shall have and may exercise the
following powers:
(a) To have and use a corporate seal and alter it at its pleasure.
(b) To sue and be sued in all courts and places and in all actions
and proceedings whatever.
(c) To purchase, receive, have, take, hold, lease, use, and enjoy
property of every kind and description within and without the limits
of the district, and to control, dispose of, convey, and encumber the
same and create a leasehold interest in the same for the benefit of
the district.
(d) To exercise the right of eminent domain for the purpose of
acquiring real or personal property of every kind necessary to the
exercise of any of the powers of the district.
(e) To establish one or more trusts for the benefit of the
district, to administer any trust declared or created for the benefit
of the district, to designate one or more trustees for trusts
created by the district, to receive by gift, devise, or bequest, and
hold in trust or otherwise, property, including corporate securities
of all kinds, situated in this state or elsewhere, and where not
otherwise provided, dispose of the same for the benefit of the
district.
(f) To employ legal counsel to advise the board of directors in
all matters pertaining to the business of the district, to perform
the functions in respect to the legal affairs of the district as the
board may direct, and to call upon the district attorney of the
county in which the greater part of the land in the district is
situated for legal advice and assistance in all matters concerning
the district, except that if that county has a county counsel, the
directors may call upon the county counsel for legal advice and
assistance.
(g) To employ any officers and employees, including architects and
consultants, the board of directors deems necessary to carry on
properly the business of the district.
(h) To prescribe the duties and powers of the health care facility
administrator, secretary, and other officers and employees of any
health care facilities of the district, to establish offices as may
be appropriate and to appoint board members or employees to those
offices, and to determine the number of, and appoint, all officers
and employees and to fix their compensation. The officers and
employees shall hold their offices or positions at the pleasure of
the boards of directors.
(i) To do any and all things that an individual might do that are
necessary for, and to the advantage of, a health care facility and a
nurses' training school, or a child care facility for the benefit of
employees of the health care facility or residents of the district.
(j) To establish, maintain, and operate, or provide assistance in
the operation of, one or more health facilities or health services,
including, but not limited to, outpatient programs, services, and
facilities; retirement programs, services, and facilities; chemical
dependency programs, services, and facilities; or other health care
programs, services, and facilities and activities at any location
within or without the district for the benefit of the district and
the people served by the district.
"Health care facilities," as used in this subdivision, means those
facilities defined in subdivision (b) of Section 32000.1 and
specifically includes freestanding chemical dependency recovery
units. "Health facilities," as used in this subdivision, may also
include those facilities defined in subdivision (d) of Section 15432
of the Government Code.
(k) To do any and all other acts and things necessary to carry out
this division.
(l) To acquire, maintain, and operate ambulances or ambulance
services within and without the district.
(m) To establish, maintain, and operate, or provide assistance in
the operation of, free clinics, diagnostic and testing centers,
health education programs, wellness and prevention programs,
rehabilitation, aftercare, and any other health care services
provider, groups, and organizations that are necessary for the
maintenance of good physical and mental health in the communities
served by the district.
(n) To establish and operate in cooperation with its medical staff
a coinsurance plan between the hospital district and the members of
its attending medical staff.
(o) To establish, maintain, and carry on its activities through
one or more corporations, joint ventures, or partnerships for the
benefit of the health care district.
(p) (1) To transfer, at fair market value, any part of its assets
to one or more nonprofit corporations to operate and maintain the
assets. A transfer pursuant to this paragraph shall be deemed to be
at fair market value if an independent consultant, with expertise in
methods of appraisal and valuation and in accordance with applicable
governmental and industry standards for appraisal and valuation,
determines that fair and reasonable consideration is to be received
by the district for the transferred district assets. Before the
district transfers, pursuant to this paragraph, 50 percent or more of
the district's assets to one or more nonprofit corporations, in sum
or by increment, the elected board shall, by resolution, submit to
the voters of the district a measure proposing the transfer. The
measure shall be placed on the ballot of a special election held upon
the request of the district or the ballot of the next regularly
scheduled election occurring at least 88 days after the resolution of
the board. If a majority of the voters voting on the measure vote
in its favor, the transfer shall be approved. The campaign
disclosure requirements applicable to local measures provided under
Chapter 4 (commencing with Section 84100) of Title 9 of the
Government Code shall apply to this election.
(2) To transfer, for the benefit of the communities served by the
district, in the absence of adequate consideration, any part of the
assets of the district, including, without limitation, real property,
equipment, and other fixed assets, current assets, and cash,
relating to the operation of the district's health care facilities to
one or more nonprofit corporations to operate and maintain the
assets.
(A) A transfer of 50 percent or more of the district's assets, in
sum or by increment, pursuant to this paragraph shall be deemed to be
for the benefit of the communities served by the district only if
all of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least five properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement provides that the hospital district
shall approve all initial board members of the nonprofit corporation
and any subsequent board members as may be specified in the transfer
agreement.
(iii) The transfer agreement provides that all assets transferred
to the nonprofit corporation, and all assets accumulated by the
corporation during the term of the transfer agreement arising out of,
or from, the operation of the transferred assets, are to be
transferred back to the district upon termination of the transfer
agreement, including any extension of the transfer agreement.
(iv) The transfer agreement commits the nonprofit corporation to
operate and maintain the district's health care facilities and its
assets for the benefit of the communities served by the district.
(v) The transfer agreement requires that any funds received from
the district at the outset of the agreement or any time thereafter
during the term of the agreement be used only to reduce district
indebtedness, to acquire needed equipment for the district health
care facilities, to operate, maintain, and make needed capital
improvements to the district's health care facilities, to provide
supplemental health care services or facilities for the communities
served by the district, or to conduct other activities that would
further a valid public purpose if undertaken directly by the
district.
(B) A transfer of 33 percent or more but less than 50 percent of
the district's assets, in sum or by increment, pursuant to this
paragraph shall be deemed to be for the benefit of the communities
served by the district only if both of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least two properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement meets all of the requirements of
clauses (ii) to (v), inclusive, of subparagraph (A).
(C) A transfer of 10 percent or more but less than 33 percent of
the district's assets, in sum or by increment, pursuant to this
paragraph shall be deemed to be for the benefit of the communities
served by the district only if both of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least two properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement meets all of the requirements of
clauses (iii) to (v), inclusive, of subparagraph (A).
(D) Before the district transfers, pursuant to this paragraph, 50
percent or more of the district's assets to one or more nonprofit
corporations, in sum or by increment, the elected board shall, by
resolution, submit to the voters of the district a measure proposing
the transfer. The measure shall be placed on the ballot of a special
election held upon the request of the district or the ballot of the
next regularly scheduled election occurring at least 88 days after
the resolution of the board. If a majority of the voters voting on
the measure vote in its favor, the transfer shall be approved. The
campaign disclosure requirements applicable to local measures
provided under Chapter 4 (commencing with Section 84100) of Title 9
of the Government Code shall apply to this election.
(E) Notwithstanding the other provisions of this paragraph, a
hospital district shall not transfer any portion of its assets to a
private nonprofit organization that is owned or controlled by a
religious creed, church, or sectarian denomination in the absence of
adequate consideration.
(3) If the district board has previously transferred less than 50
percent of the district's assets pursuant to this subdivision, before
any additional assets are transferred, the board shall hold a public
hearing and shall make a public determination that the additional
assets to be transferred will not, in combination with any assets
previously transferred, equal 50 percent or more of the total assets
of the district.
(4) The amendments to this subdivision made during the 1991-92
Regular Session, and the amendments made to this subdivision and to
Section 32126 made during the 1993-94 Regular Session, shall only
apply to transfers made on or after the effective dates of the acts
amending this subdivision. The amendments to this subdivision made
during those sessions shall not apply to any of the following:
(A) A district that has discussed and adopted a board resolution,
prior to September 1, 1992, that authorizes the development of a
business plan for an integrated delivery system.
(B) A lease agreement, transfer agreement, or both between a
district and a nonprofit corporation that were in full force and
effect as of September 1, 1992, for as long as that lease agreement,
transfer agreement, or both remain in full force and effect.
(5) Notwithstanding paragraph (4), if substantial amendments are
proposed to be made to a transfer agreement described in subparagraph
(A) or (B) of paragraph (4), the amendments shall be fully discussed
in advance of the district board's decision to adopt the amendments
in at least two properly noticed open and public meetings in
compliance with Section 32106 and the Ralph M. Brown Act (Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5 of
the Government Code).
(6) Notwithstanding paragraphs (4) and (5), a transfer agreement
described in subparagraph (A) or (B) of paragraph (4) that provided
for the transfer of less than 50 percent of a district's assets shall
be subject to the requirements of this subdivision when subsequent
amendments to that transfer agreement would result in the transfer,
in sum or by increment, of 50 percent or more of a district's assets
to the nonprofit corporation.
(7) For purposes of this subdivision, a "transfer" means the
transfer of ownership of the assets of a district. A lease of the
real property or the tangible personal property of a district shall
not be subject to this subdivision except as specified in Section
32121.4 and as required under Section 32126.
(8) Districts that request a special election pursuant to
paragraph (1) or (2) shall reimburse counties for the costs of that
special election as prescribed pursuant to Section 10520 of the
Elections Code.
(9) (A) Nothing in this section, including subdivision (j), shall
be construed to permit a local district to obtain or be issued a
single consolidated license to operate a separate physical plant as a
skilled nursing facility or an intermediate care facility that is
not located within the boundaries of the district.
(B) Notwithstanding subparagraph (A), Eastern Plumas Health Care
District may obtain and be issued a single consolidated license to
operate a separate physical plant as a skilled nursing facility or an
intermediate care facility that is located on the campus of the
Sierra Valley District Hospital. This subparagraph shall have no
application to any other district and is intended only to address the
urgent need to preserve skilled nursing or intermediate care
services within the rural County of Sierra.
(C) Subparagraph (B) shall only remain operative until the Sierra
Valley District Hospital is annexed by the Eastern Plumas Health Care
District or January 1, 2008, whichever occurs first. In no event
shall Eastern Plumas Health Care District increase the number of
licensed beds at the Sierra Valley District Hospital during the
operative period of subparagraph (B).
(10) A transfer of any of the assets of a district to one or more
nonprofit corporations to operate and maintain the assets shall not
be required to meet paragraphs (1) to (9), inclusive, of this
subdivision if all of the following conditions apply at the time of
the transfer:
(A) The district has entered into a loan that is insured by the
State of California under Chapter 1 (commencing with Section 129000)
of Part 6 of Division 107.
(B) The district is in default of its loan obligations, as
determined by the Office of Statewide Health Planning and
Development.
(C) The Office of Statewide Health Planning and Development and
the district, in their best judgment, agree that the transfer of some
or all of the assets of the district to a nonprofit corporation or
corporations is necessary to cure the default, and will obviate the
need for foreclosure. This cure of default provision shall be
applicable prior to the office foreclosing on district hospital
assets. After the office has foreclosed on district hospital assets,
or otherwise taken possession in accordance with law, the office may
exercise all of its powers to deal with and dispose of hospital
property.
(D) The transfer and all arrangements necessary thereto are
discussed in advance of the transfer in at least one properly noticed
open and public meeting in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code). The meeting
referred to in this paragraph shall be noticed and held within 90
days of notice in writing to the district by the office of an event
of default. If the meeting is not held within this 90-day period,
the district shall be deemed to have waived this requirement to have
a meeting.
(11) If a transfer under paragraph (10) is a lease, the lease
shall provide that the assets shall revert to the district at the
conclusion of the leasehold interest. If the transfer is a sale, the
proceeds shall be used first to retire the obligation insured by the
office, then to retire any other debts of the district. After
providing for debts, any remaining funds shall revert to the
district.
(q) To contract for bond insurance, letters of credit, remarketing
services, and other forms of credit enhancement and liquidity
support for its bonds, notes, and other indebtedness and to enter
into reimbursement agreements, monitoring agreements, remarketing
agreements, and similar ancillary contracts in connection therewith.
(r) To establish, maintain, operate, participate in, or manage
capitated health care service plans, health maintenance
organizations, preferred provider organizations, and other managed
health care systems and programs properly licensed by the Department
of Insurance or the Department of Managed Care, at any location
within or without the district for the benefit of residents of
communities served by the district. However, that activity shall not
be deemed to result in, or constitute, the giving or lending of the
district's credit, assets, surpluses, cash, or tangible goods to, or
in aid of, any person, association, or corporation in violation of
Section 6 of Article XVI of the California Constitution.
Nothing in this section shall be construed to authorize activities
that corporations and other artificial legal entities are prohibited
from conducting by Section 2400 of the Business and Professions
Code.
Any agreement to provide health care coverage that is a health
care service plan, as defined in subdivision (f) of Section 1345,
shall be subject to Chapter 2.2 (commencing with Section 1340) of
Division 2, unless exempted pursuant to Section 1343 or 1349.2.
A district shall not provide health care coverage for any employee
of an employer operating within the communities served by the
district, unless the Legislature specifically authorizes, or has
authorized in this section or elsewhere, the coverage.
Nothing in this section shall be construed to authorize any
district to contribute its facilities to any joint venture that could
result in transfer of the facilities from district ownership.
(s) To provide health care coverage to members of the district's
medical staff, employees of the medical staff members, and the
dependents of both groups, on a self-pay basis.
(t) This section shall become operative on January 1, 2006.
(u) This section shall remain in effect only until January 1,
2008, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2008, deletes or extends
that date.
SEC. 137. Section 32121 of the Health and Safety Code, as added by
Section 3 of Chapter 184 of the Statutes of 2001, is amended to
read:
32121. Each local district shall have and may exercise the
following powers:
(a) To have and use a corporate seal and alter it at its pleasure.
(b) To sue and be sued in all courts and places and in all actions
and proceedings whatever.
(c) To purchase, receive, have, take, hold, lease, use, and enjoy
property of every kind and description within and without the limits
of the district, and to control, dispose of, convey, and encumber the
same and create a leasehold interest in the same for the benefit of
the district.
(d) To exercise the right of eminent domain for the purpose of
acquiring real or personal property of every kind necessary to the
exercise of any of the powers of the district.
(e) To establish one or more trusts for the benefit of the
district, to administer any trust declared or created for the benefit
of the district, to designate one or more trustees for trusts
created by the district, to receive by gift, devise, or bequest, and
hold in trust or otherwise, property, including corporate securities
of all kinds, situated in this state or elsewhere, and where not
otherwise provided, dispose of the same for the benefit of the
district.
(f) To employ legal counsel to advise the board of directors in
all matters pertaining to the business of the district, to perform
the functions in respect to the legal affairs of the district as the
board may direct, and to call upon the district attorney of the
county in which the greater part of the land in the district is
situated for legal advice and assistance in all matters concerning
the district, except that if that county has a county counsel, the
directors may call upon the county counsel for legal advice and
assistance.
(g) To employ any officers and employees, including architects and
consultants, the board of directors deems necessary to carry on
properly the business of the district.
(h) To prescribe the duties and powers of the health care facility
administrator, secretary, and other officers and employees of any
health care facilities of the district, to establish offices as may
be appropriate and to appoint board members or employees to those
offices, and to determine the number of, and appoint, all officers
and employees and to fix their compensation. The officers and
employees shall hold their offices or positions at the pleasure of
the boards of directors.
(i) To do any and all things that an individual might do that are
necessary for, and to the advantage of, a health care facility and a
nurses' training school, or a child care facility for the benefit of
employees of the health care facility or residents of the district.
(j) To establish, maintain, and operate, or provide assistance in
the operation of, one or more health facilities or health services,
including, but not limited to, outpatient programs, services, and
facilities; retirement programs, services, and facilities; chemical
dependency programs, services, and facilities; or other health care
programs, services, and facilities and activities at any location
within or without the district for the benefit of the district and
the people served by the district.
"Health care facilities," as used in this subdivision, means those
facilities defined in subdivision (b) of Section 32000.1 and
specifically includes freestanding chemical dependency recovery
units. "Health facilities," as used in this subdivision, may also
include those facilities defined in subdivision (d) of Section 15432
of the Government Code.
(k) To do any and all other acts and things necessary to carry out
this division.
(l) To acquire, maintain, and operate ambulances or ambulance
services within and without the district.
(m) To establish, maintain, and operate, or provide assistance in
the operation of, free clinics, diagnostic and testing centers,
health education programs, wellness and prevention programs,
rehabilitation, aftercare, and any other health care services
provider, groups, and organizations that are necessary for the
maintenance of good physical and mental health in the communities
served by the district.
(n) To establish and operate in cooperation with its medical staff
a coinsurance plan between the hospital district and the members of
its attending medical staff.
(o) To establish, maintain, and carry on its activities through
one or more corporations, joint ventures, or partnerships for the
benefit of the health care district.
(p) (1) To transfer, at fair market value, any part of its assets
to one or more nonprofit corporations to operate and maintain the
assets. A transfer pursuant to this paragraph shall be deemed to be
at fair market value if an independent consultant, with expertise in
methods of appraisal and valuation and in accordance with applicable
governmental and industry standards for appraisal and valuation,
determines that fair and reasonable consideration is to be received
by the district for the transferred district assets. Before the
district transfers, pursuant to this paragraph, 50 percent or more of
the district's assets to one or more nonprofit corporations, in sum
or by increment, the elected board shall, by resolution, submit to
the voters of the district a measure proposing the transfer. The
measure shall be placed on the ballot of a special election held upon
the request of the district or the ballot of the next regularly
scheduled election occurring at least 88 days after the resolution of
the board. If a majority of the voters voting on the measure vote
in its favor, the transfer shall be approved. The campaign
disclosure requirements applicable to local measures provided under
Chapter 4 (commencing with Section 84100) of Title 9 of the
Government Code shall apply to this election.
(2) To transfer, for the benefit of the communities served by the
district, in the absence of adequate consideration, any part of the
assets of the district, including, without limitation, real property,
equipment, and other fixed assets, current assets, and cash,
relating to the operation of the district's health care facilities to
one or more nonprofit corporations to operate and maintain the
assets.
(A) A transfer of 50 percent or more of the district's assets, in
sum or by increment, pursuant to this paragraph shall be deemed to be
for the benefit of the communities served by the district only if
all of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least five properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement provides that the hospital district
shall approve all initial board members of the nonprofit corporation
and any subsequent board members as may be specified in the transfer
agreement.
(iii) The transfer agreement provides that all assets transferred
to the nonprofit corporation, and all assets accumulated by the
corporation during the term of the transfer agreement arising out of,
or from, the operation of the transferred assets, are to be
transferred back to the district upon termination of the transfer
agreement, including any extension of the transfer agreement.
(iv) The transfer agreement commits the nonprofit corporation to
operate and maintain the district's health care facilities and its
assets for the benefit of the communities served by the district.
(v) The transfer agreement requires that any funds received from
the district at the outset of the agreement or any time thereafter
during the term of the agreement be used only to reduce district
indebtedness, to acquire
needed equipment for the district health care facilities, to operate,
maintain, and make needed capital improvements to the district's
health care facilities, to provide supplemental health care services
or facilities for the communities served by the district, or to
conduct other activities that would further a valid public purpose if
undertaken directly by the district.
(B) A transfer of 33 percent or more but less than 50 percent of
the district's assets, in sum or by increment, pursuant to this
paragraph shall be deemed to be for the benefit of the communities
served by the district only if both of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least two properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement meets all of the requirements of
clauses (ii) to (v), inclusive, of subparagraph (A).
(C) A transfer of 10 percent or more but less than 33 percent of
the district's assets, in sum or by increment, pursuant to this
paragraph shall be deemed to be for the benefit of the communities
served by the district only if both of the following occur:
(i) The transfer agreement and all arrangements necessary thereto
are fully discussed in advance of the district board decision to
transfer the assets of the district in at least two properly noticed
open and public meetings in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code).
(ii) The transfer agreement meets all of the requirements of
clauses (iii) to (v), inclusive, of subparagraph (A).
(D) Before the district transfers, pursuant to this paragraph, 50
percent or more of the district's assets to one or more nonprofit
corporations, in sum or by increment, the elected board shall, by
resolution, submit to the voters of the district a measure proposing
the transfer. The measure shall be placed on the ballot of a special
election held upon the request of the district or the ballot of the
next regularly scheduled election occurring at least 88 days after
the resolution of the board. If a majority of the voters voting on
the measure vote in its favor, the transfer shall be approved. The
campaign disclosure requirements applicable to local measures
provided under Chapter 4 (commencing with Section 84100) of Title 9
of the Government Code shall apply to this election.
(E) Notwithstanding the other provisions of this paragraph, a
hospital district shall not transfer any portion of its assets to a
private nonprofit organization that is owned or controlled by a
religious creed, church, or sectarian denomination in the absence of
adequate consideration.
(3) If the district board has previously transferred less than 50
percent of the district's assets pursuant to this subdivision, before
any additional assets are transferred, the board shall hold a public
hearing and shall make a public determination that the additional
assets to be transferred will not, in combination with any assets
previously transferred, equal 50 percent or more of the total assets
of the district.
(4) The amendments to this subdivision made during the 1991-92
Regular Session, and the amendments made to this subdivision and to
Section 32126 made during the 1993-94 Regular Session, shall only
apply to transfers made on or after the effective dates of the acts
amending this subdivision. The amendments to this subdivision made
during those sessions shall not apply to any of the following:
(A) A district that has discussed and adopted a board resolution
prior to September 1, 1992, that authorizes the development of a
business plan for an integrated delivery system.
(B) A lease agreement, transfer agreement, or both between a
district and a nonprofit corporation that were in full force and
effect as of September 1, 1992, for as long as that lease agreement,
transfer agreement, or both remain in full force and effect.
(5) Notwithstanding paragraph (4), if substantial amendments are
proposed to be made to a transfer agreement described in subparagraph
(A) or (B) of paragraph (4), the amendments shall be fully discussed
in advance of the district board's decision to adopt the amendments
in at least two properly noticed open and public meetings in
compliance with Section 32106 and the Ralph M. Brown Act (Chapter 9
(commencing with Section 54950) of Part 1 of Division 2 of Title 5 of
the Government Code).
(6) Notwithstanding paragraphs (4) and (5), a transfer agreement
described in subparagraph (A) or (B) of paragraph (4) that provided
for the transfer of less than 50 percent of a district's assets shall
be subject to the requirements of this subdivision when subsequent
amendments to that transfer agreement would result in the transfer,
in sum or by increment, of 50 percent or more of a district's assets
to the nonprofit corporation.
(7) For purposes of this subdivision, a "transfer" means the
transfer of ownership of the assets of a district. A lease of the
real property or the tangible personal property of a district shall
not be subject to this subdivision except as specified in Section
32121.4 and as required under Section 32126.
(8) Districts that request a special election pursuant to
paragraph (1) or (2) shall reimburse counties for the costs of that
special election as prescribed pursuant to Section 10520 of the
Elections Code.
(9) Nothing in this section, including subdivision (j), shall be
construed to permit a local district to obtain or be issued a single
consolidated license to operate a separate physical plant as a
skilled nursing facility or an intermediate care facility that is not
located within the boundaries of the district.
(10) A transfer of any of the assets of a district to one or more
nonprofit corporations to operate and maintain the assets shall not
be required to meet paragraphs (1) to (9), inclusive, of this
subdivision if all of the following conditions apply at the time of
the transfer:
(A) The district has entered into a loan that is insured by the
State of California under Chapter 1 (commencing with Section 129000)
of Part 6 of Division 107.
(B) The district is in default of its loan obligations, as
determined by the Office of Statewide Health Planning and
Development.
(C) The Office of Statewide Health Planning and Development and
the district, in their best judgment, agree that the transfer of some
or all of the assets of the district to a nonprofit corporation or
corporations is necessary to cure the default, and will obviate the
need for foreclosure. This cure of default provision shall be
applicable prior to the office foreclosing on district hospital
assets. After the office has foreclosed on district hospital assets,
or otherwise taken possession in accordance with law, the office may
exercise all of its powers to deal with and dispose of hospital
property.
(D) The transfer and all arrangements necessary thereto are
discussed in advance of the transfer in at least one properly noticed
open and public meeting in compliance with Section 32106 and the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part
1 of Division 2 of Title 5 of the Government Code). The meeting
referred to in this paragraph shall be noticed and held within 90
days of notice in writing to the district by the office of an event
of default. If the meeting is not held within this 90-day period,
the district shall be deemed to have waived this requirement to have
a meeting.
(11) If a transfer under paragraph (10) is a lease, the lease
shall provide that the assets shall revert to the district at the
conclusion of the leasehold interest. If the transfer is a sale, the
proceeds shall be used first to retire the obligation insured by the
office, then to retire any other debts of the district. After
providing for debts, any remaining funds shall revert to the
district.
(q) To contract for bond insurance, letters of credit, remarketing
services, and other forms of credit enhancement and liquidity
support for its bonds, notes, and other indebtedness and to enter
into reimbursement agreements, monitoring agreements, remarketing
agreements, and similar ancillary contracts in connection therewith.
(r) To establish, maintain, operate, participate in, or manage
capitated health care service plans, health maintenance
organizations, preferred provider organizations, and other managed
health care systems and programs properly licensed by the Department
of Insurance or the Department of Managed Care, at any location
within or without the district for the benefit of residents of
communities served by the district. However, that activity shall not
be deemed to result in, or constitute, the giving or lending of the
district's credit, assets, surpluses, cash, or tangible goods to, or
in aid of, any person, association, or corporation in violation of
Section 6 of Article XVI of the California Constitution.
Nothing in this section shall be construed to authorize activities
that corporations and other artificial legal entities are prohibited
from conducting by Section 2400 of the Business and Professions
Code.
Any agreement to provide health care coverage that is a health
care service plan, as defined in subdivision (f) of Section 1345,
shall be subject to Chapter 2.2 (commencing with Section 1340) of
Division 2, unless exempted pursuant to Section 1343 or 1349.2.
A district shall not provide health care coverage for any employee
of an employer operating within the communities served by the
district, unless the Legislature specifically authorizes, or has
authorized in this section or elsewhere, the coverage.
Nothing in this section shall be construed to authorize any
district to contribute its facilities to any joint venture that could
result in transfer of the facilities from district ownership.
(s) To provide health care coverage to members of the district's
medical staff, employees of the medical staff members, and the
dependents of both groups, on a self-pay basis.
(t) This section shall become operative on January 1, 2008.
SEC. 138. Section 33331.5 of the Health and Safety Code is
repealed.
SEC. 139. Section 33334.2 of the Health and Safety Code, as
amended by Section 2.2 of Chapter 738 of the Statutes of 2001, is
amended to read:
33334.2. (a) Not less than 20 percent of all taxes that are
allocated to the agency pursuant to Section 33670 shall be used by
the agency for the purposes of increasing, improving, and preserving
the community's supply of low- and moderate-income housing available
at affordable housing cost, as defined by Sections 33334.22 and
50052.5, to persons and families of low or moderate income, as
defined in Section 50093, and very low income households, as defined
in Section 50105, that is occupied by these persons and families,
unless one of the following findings is made annually by resolution:
(1) (A) That no need exists in the community to improve, increase,
or preserve the supply of low- and moderate-income housing,
including housing for very low income households, in a manner that
would benefit the project area and that this finding is consistent
with the housing element of the community's general plan required by
Article 10.6 (commencing with Section 65580) of Chapter 3 of Division
1 of Title 7 of the Government Code, including its share of the
regional housing needs of very low income households and persons and
families of low or moderate income.
(B) This finding shall only be made if the housing element of the
community's general plan demonstrates that the community does not
have a need to improve, increase, or preserve the supply of low- and
moderate-income housing available at affordable housing cost to
persons and families of low-or moderate-income and to very low income
households. This finding shall only be made if it is consistent
with the planning agency's annual report to the legislative body on
implementation of the housing element required by subdivision (b) of
Section 65400 of the Government Code. No agency of a charter city
shall make this finding unless the planning agency submits the report
pursuant to subdivision (b) of Section 65400 of the Government Code.
This finding shall not take effect until the agency has complied
with subdivision (b) of this section.
(2) (A) That some stated percentage less than 20 percent of the
taxes that are allocated to the agency pursuant to Section 33670 is
sufficient to meet the housing needs of the community, including its
share of the regional housing needs of persons and families of low-
or moderate-income and very low income households, and that this
finding is consistent with the housing element of the community's
general plan required by Article 10.6 (commencing with Section 65580)
of Chapter 3 of Division 1 of Title 7 of the Government Code.
(B) This finding shall only be made if the housing element of the
community's general plan demonstrates that a percentage of less than
20 percent will be sufficient to meet the community's need to
improve, increase, or preserve the supply of low- and moderate-income
housing available at affordable housing cost to persons and families
of low or moderate income and to very low income households. This
finding shall only be made if it is consistent with the planning
agency's annual report to the legislative body on implementation of
the housing element required by subdivision (b) of Section 65400 of
the Government Code. No agency of a charter city shall make this
finding unless the planning agency submits the report pursuant to
subdivision (b) of Section 65400 of the Government Code. This
finding shall not take effect until the agency has complied with
subdivision (b).
(C) For purposes of making the findings specified in this
paragraph and paragraph (1), the housing element of the general plan
of a city or county shall be current, shall have been submitted to
the Department of Housing and Community Development within the
applicable time period, and shall be in compliance with Article 10.6
(commencing with Section 65580) of Chapter 3 of Division 1 of Title 7
of the Government Code.
(3) (A) That the community is making a substantial effort to meet
its existing and projected housing needs, including its share of the
regional housing needs, with respect to persons and families of low-
and moderate-income, particularly very low income households, as
identified in the housing element of the community's general plan
required by Article 10.6 (commencing with Section 65580) of Chapter 3
of Division 1 of Title 7 of the Government Code, and that this
effort, consisting of direct financial contributions of local funds
used to increase and improve the supply of housing affordable to
persons and families of low or moderate income and very low income
households that is occupied by these persons and families, is
equivalent in impact to the funds otherwise required to be set aside
pursuant to this section. In addition to any other local funds,
these direct financial contributions may include federal or state
grants paid directly to a community and which the community has the
discretion of using for the purposes for which moneys in the Low and
Moderate Income Housing Fund may be used. The legislative body shall
consider the need that can be reasonably foreseen because of
displacement of persons and families of low or moderate income or
very low income households from within, or adjacent to, the project
area, because of increased employment opportunities, or because of
any other direct or indirect result of implementation of the
redevelopment plan. No finding under this subdivision may be made
until the community has provided or ensured the availability of
replacement dwelling units as defined in Section 33411.2 and until it
has complied with Article 9 (commencing with Section 33410).
(B) In making the determination that other financial contributions
are equivalent in impact pursuant to this subdivision, the agency
shall include only those financial contributions that are directly
related to programs or activities authorized under subdivision (e).
(C) The authority for making the finding specified in this
paragraph shall expire on June 30, 1993, except that the expiration
shall not be deemed to impair contractual obligations to bondholders
or private entities incurred prior to May 1, 1991, and made in
reliance on this paragraph. Agencies that make this finding after
June 30, 1993, shall show evidence that the agency entered into the
specific contractual obligation with the specific intention of making
a finding under this paragraph in order to provide sufficient
revenues to pay off the indebtedness.
(b) Within 10 days following the making of a finding under either
paragraph (1) or (2) of subdivision (a), the agency shall send the
department a copy of the finding, including the factual information
supporting the finding and other factual information in the housing
element that demonstrates that either (1) the community does not need
to increase, improve, or preserve the supply of housing for low- and
moderate-income households, including very low income households, or
(2) a percentage less than 20 percent will be sufficient to meet the
community's need to improve, increase, and preserve the supply of
housing for low- and moderate-income households, including very low
income households. Within 10 days following the making of a finding
under paragraph (3) of subdivision (a), the agency shall send the
department a copy of the finding, including the factual information
supporting the finding that the community is making a substantial
effort to meet its existing and projected housing needs. Agencies
that make this finding after June 30, 1993, shall also submit
evidence to the department of its contractual obligations with
bondholders or private entities incurred prior to May 1, 1991, and
made in reliance on this finding.
(c) In any litigation to challenge or attack a finding made under
paragraph (1), (2), or (3) of subdivision (a), the burden shall be
upon the agency to establish that the finding is supported by
substantial evidence in light of the entire record before the agency.
If an agency is determined by a court to have knowingly
misrepresented any material facts regarding the community's share of
its regional housing need for low- and moderate-income housing,
including very low income households, or the community's production
record in meeting its share of the regional housing need pursuant to
the report required by subdivision (b) of Section 65400 of the
Government Code, the agency shall be liable for all court costs and
plaintiff's attorney's fees, and shall be required to allocate not
less than 25 percent of the agency's tax increment revenues to its
Low and Moderate Income Housing Fund in each year thereafter.
(d) Nothing in this section shall be construed as relieving any
other public entity or entity with the power of eminent domain of any
legal obligations for replacement or relocation housing arising out
of its activities.
(e) In carrying out the purposes of this section, the agency may
exercise any or all of its powers for the construction,
rehabilitation, or preservation of affordable housing for very low,
low-, and moderate-income persons or families, including the
following:
(1) Acquire real property or building sites subject to Section
33334.16.
(2) Improve real property or building sites with onsite or offsite
improvements, but only if both (A) the improvements are part of the
new construction or rehabilitation of affordable housing units for
low- or moderate-income persons that are directly benefited by the
improvements, and are a reasonable and fundamental component of the
housing units, and (B) the agency requires that the units remain
available at affordable housing cost to persons and families of very
low, low-, or moderate-income, and are occupied by these persons and
families, for the same time period and in the same manner as provided
in subdivision (c) and paragraph (2) of subdivision (f) of Section
33334.3.
If the newly constructed or rehabilitated housing units are part
of a larger project and the agency improves or pays for onsite or
offsite improvements pursuant to the authority in this subdivision,
the agency shall pay only a portion of the total cost of the onsite
or offsite improvements. The maximum percentage of the total cost of
the improvements paid for by the agency shall be determined by
dividing the number of housing units that are affordable to low- or
moderate-income persons by the total number of housing units, if the
project is a housing project, or by dividing the cost of the
affordable housing units by the total cost of the project, if the
project is not a housing project.
(3) Donate real property to private or public persons or entities.
(4) Finance insurance premiums pursuant to Section 33136.
(5) Construct buildings or structures.
(6) Acquire buildings or structures.
(7) Rehabilitate buildings or structures.
(8) Provide subsidies to, or for the benefit of, very low income
households, as defined by Section 50105, lower income households, as
defined by Section 50079.5, or persons and families of low or
moderate income, as defined by Section 50093, to the extent those
households cannot obtain housing at affordable costs on the open
market. Housing units available on the open market are those units
developed without direct government subsidies.
(9) Develop plans, pay principal and interest on bonds, loans,
advances, or other indebtedness, or pay financing or carrying
charges.
(10) Maintain the community's supply of mobilehomes.
(11) Preserve the availability to lower income households of
affordable housing units in housing developments that are assisted or
subsidized by public entities and that are threatened with imminent
conversion to market rates.
(f) The agency may use these funds to meet, in whole or in part,
the replacement housing provisions in Section 33413. However,
nothing in this section shall be construed as limiting in any way the
requirements of that section.
(g) (1) The agency may use these funds inside or outside the
project area. The agency may only use these funds outside the
project area upon a resolution of the agency and the legislative body
that the use will be of benefit to the project. The determination
by the agency and the legislative body shall be final and conclusive
as to the issue of benefit to the project area. The Legislature
finds and declares that the provision of replacement housing pursuant
to Section 33413 is always of benefit to a project. Unless the
legislative body finds, before the redevelopment plan is adopted,
that the provision of low- and moderate-income housing outside the
project area will be of benefit to the project, the project area
shall include property suitable for low- and moderate-income housing.
(2) (A) The Contra Costa County Redevelopment Agency may use these
funds anywhere within the unincorporated territory, or within the
incorporated limits of the City of Walnut Creek on sites contiguous
to the Pleasant Hill BART Station Area Redevelopment Project area.
The agency may only use these funds outside the project area upon a
resolution of the agency and board of supervisors determining that
the use will be of benefit to the project area. In addition, the
agency may use these funds within the incorporated limits of the City
of Walnut Creek only if the agency and the board of supervisors find
all of the following:
(i) Both the County of Contra Costa and the City of Walnut Creek
have adopted and are implementing complete and current housing
elements of their general plans that the department has determined to
be in compliance with the requirements of Article 10.6 (commencing
with Section 65580) of Chapter 3 of Division 1 of Title 7 of the
Government Code.
(ii) The development to be funded shall not result in any
residential displacement from the site where the development is to be
built.
(iii) The development to be funded shall not be constructed in an
area that currently has more than 50 percent of its population
comprised of racial minorities or low-income families.
(iv) The development to be funded shall allow construction of
affordable housing closer to a rapid transit station than could be
constructed in the unincorporated territory outside the Pleasant Hill
BART Station Area Redevelopment Project.
(B) If the agency uses these funds within the incorporated limits
of the City of Walnut Creek, all of the following requirements shall
apply:
(i) The funds shall be used only for the acquisition of land for,
and the design and construction of, the development of housing
containing units affordable to low- and moderate-income persons.
(ii) If less than all the units in the development are affordable
to low- or moderate-income persons, any agency assistance shall not
exceed the amount needed to make the housing affordable to low- or
moderate-income persons.
(iii) The units in the development that are affordable to low- or
moderate-income persons shall remain affordable for a period of at
least 55 years.
(iv) The agency and the City of Walnut Creek shall determine, if
applicable, whether Article XXXIV of the California Constitution
permits the development.
(h) The Legislature finds and declares that expenditures or
obligations incurred by the agency pursuant to this section shall
constitute an indebtedness of the project.
(i) The requirements of this section shall only apply to taxes
allocated to a redevelopment agency for which a final redevelopment
plan is adopted on or after January 1, 1977, or for any area that is
added to a project by an amendment to a redevelopment plan, and that
amendment is adopted on or after the effective date of this section.
An agency may, by resolution, elect to make all or part of the
requirements of this section applicable to any redevelopment project
for which a redevelopment plan was adopted prior to January 1, 1977,
subject to any indebtedness incurred prior to the election.
(j) This section shall remain in effect only until January 1,
2005, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2005, deletes or extends
that date.
SEC. 140. Section 33334.2 of the Health and Safety
Code, as added by Section 2.4 of Chapter 738 of the Statutes of 2001,
is amended to read:
33334.2. (a) Not less than 20 percent of all taxes that are
allocated to the agency pursuant to Section 33670 shall be used by
the agency for the purposes of increasing, improving, and preserving
the community's supply of low- and moderate-income housing available
at affordable housing cost, as defined by Section 50052.5, to persons
and families of low or moderate income, as defined in Section 50093,
and very low income households, as defined in Section 50105, that is
occupied by these persons and families, unless one of the following
findings is made annually by resolution:
(1) (A) That no need exists in the community to improve, increase,
or preserve the supply of low- and moderate-income housing,
including housing for very low income households, in a manner that
would benefit the project area and that this finding is consistent
with the housing element of the community's general plan required by
Article 10.6 (commencing with Section 65580) of Chapter 3 of Division
1 of Title 7 of the Government Code, including its share of the
regional housing needs of very low income households and persons and
families of low or moderate income.
(B) This finding shall only be made if the housing element of the
community's general plan demonstrates that the community does not
have a need to improve, increase, or preserve the supply of low- and
moderate-income housing available at affordable housing cost to
persons and families of low-or moderate-income and to very low income
households. This finding shall only be made if it is consistent
with the planning agency's annual report to the legislative body on
implementation of the housing element required by subdivision (b) of
Section 65400 of the Government Code. No agency of a charter city
shall make this finding unless the planning agency submits the report
pursuant to subdivision (b) of Section 65400 of the Government Code.
This finding shall not take effect until the agency has complied
with subdivision (b) of this section.
(2) (A) That some stated percentage less than 20 percent of the
taxes that are allocated to the agency pursuant to Section 33670 is
sufficient to meet the housing needs of the community, including its
share of the regional housing needs of persons and families of low-
or moderate-income and very low income households, and that this
finding is consistent with the housing element of the community's
general plan required by Article 10.6 (commencing with Section 65580)
of Chapter 3 of Division 1 of Title 7 of the Government Code.
(B) This finding shall only be made if the housing element of the
community's general plan demonstrates that a percentage of less than
20 percent will be sufficient to meet the community's need to
improve, increase, or preserve the supply of low- and moderate-income
housing available at affordable housing costs to persons and
families of low or moderate income and to very low income households.
This finding shall only be made if it is consistent with the
planning agency's annual report to the legislative body on
implementation of the housing element required by subdivision (b) of
Section 65400 of the Government Code. No agency of a charter city
shall make this finding unless the planning agency submits the report
pursuant to subdivision (b) of Section 65400 of the Government Code.
This finding shall not take effect until the agency has complied
with subdivision (b) of this section.
(C) For purposes of making the findings specified in this
paragraph and paragraph (1), the housing element of the general plan
of a city or county shall be current, shall have been submitted to
the Department of Housing and Community Development within the
applicable time period, and shall be in compliance with Article 10.6
(commencing with Section 65580) of Chapter 3 of Division 1 of Title 7
of the Government Code.
(3) (A) That the community is making a substantial effort to meet
its existing and projected housing needs, including its share of the
regional housing needs, with respect to persons and families of low-
and moderate-income, particularly very low income households, as
identified in the housing element of the community's general plan
required by Article 10.6 (commencing with Section 65580) of Chapter 3
of Division 1 of Title 7 of the Government Code, and that this
effort, consisting of direct financial contributions of local funds
used to increase and improve the supply of housing affordable to
persons and families of low- or moderate-income and very low income
households that is occupied by these persons and families, is
equivalent in impact to the funds otherwise required to be set aside
pursuant to this section. In addition to any other local funds,
these direct financial contributions may include federal or state
grants paid directly to a community and which the community has the
discretion of using for the purposes for which moneys in the Low and
Moderate Income Housing Fund may be used. The legislative body shall
consider the need that can be reasonably foreseen because of
displacement of persons and families of low- or moderate-income or
very low income households from within, or adjacent to, the project
area, because of increased employment opportunities, or because of
any other direct or indirect result of implementation of the
redevelopment plan. No finding under this subdivision may be made
until the community has provided or ensured the availability of
replacement dwelling units as defined in Section 33411.2 and until it
has complied with Article 9 (commencing with Section 33410).
(B) In making the determination that other financial contributions
are equivalent in impact pursuant to this subdivision, the agency
shall include only those financial contributions that are directly
related to programs or activities authorized under subdivision (e).
(C) The authority for making the finding specified in this
paragraph shall expire on June 30, 1993, except that the expiration
shall not be deemed to impair contractual obligations to bondholders
or private entities incurred prior to May 1, 1991, and made in
reliance on the provisions of this paragraph. Agencies that make
this finding after June 30, 1993, shall show evidence that the agency
entered into the specific contractual obligation with the specific
intention of making a finding under this paragraph in order to
provide sufficient revenues to pay off the indebtedness.
(b) Within 10 days following the making of a finding under either
paragraph (1) or (2) of subdivision (a), the agency shall send the
Department of Housing and Community Development a copy of the
finding, including the factual information supporting the finding and
other factual information in the housing element that demonstrates
that either (1) the community does not need to increase, improve, or
preserve the supply of housing for low- and moderate-income
households, including very low income households, or (2) a percentage
less than 20 percent will be sufficient to meet the community's need
to improve, increase, and preserve the supply of housing for low-
and moderate-income households, including very low income households.
Within 10 days following the making of a finding under paragraph
(3) of subdivision (a), the agency shall send the Department of
Housing and Community Development a copy of the finding, including
the factual information supporting the finding that the community is
making a substantial effort to meet its existing and projected
housing needs. Agencies that make this finding after June 30, 1993,
shall also submit evidence to the department of its contractual
obligations with bondholders or private entities incurred prior to
May 1, 1991, and made in reliance on this finding.
(c) In any litigation to challenge or attack a finding made under
paragraph (1), (2), or (3) of subdivision (a), the burden shall be
upon the agency to establish that the finding is supported by
substantial evidence in light of the entire record before the agency.
If an agency is determined by a court to have knowingly
misrepresented any material facts regarding the community's share of
its regional housing need for low- and moderate-income housing,
including very low income households, or the community's production
record in meeting its share of the regional housing need pursuant to
the report required by subdivision (b) of Section 65400 of the
Government Code, the agency shall be liable for all court costs and
plaintiff's attorney's fees, and shall be required to allocate not
less than 25 percent of the agency's tax increment revenues to its
Low and Moderate Income Housing Fund in each year thereafter.
(d) Nothing in this section shall be construed as relieving any
other public entity or entity with the power of eminent domain of any
legal obligations for replacement or relocation housing arising out
of its activities.
(e) In carrying out the purposes of this section, the agency may
exercise any or all of its powers for the construction,
rehabilitation, or preservation of affordable housing for very low,
low- and moderate-income persons or families, including the
following:
(1) Acquire real property or building sites subject to Section
33334.16.
(2) Improve real property or building sites with onsite or offsite
improvements, but only if both (A) the improvements are part of the
new construction or rehabilitation of affordable housing units for
low- or moderate-income persons that are directly benefited by the
improvements, and are a reasonable and fundamental component of the
housing units, and (B) the agency requires that the units remain
available at affordable housing costs to persons and families of very
low, low-, or moderate-income, and are occupied by these persons and
families, for the same time period and in the same manner as
provided in subdivision (c) and paragraph (2) of subdivision (f) of
Section 33334.3.
If the newly constructed or rehabilitated housing units are part
of a larger project and the agency improves or pays for onsite or
offsite improvements pursuant to the authority in this subdivision,
the agency shall pay only a portion of the total cost of the onsite
or offsite improvements. The maximum percentage of the total cost of
the improvements paid for by the agency shall be determined by
dividing the number of housing units that are affordable to low- or
moderate-income persons by the total number of housing units, if the
project is a housing project, or by dividing the cost of the
affordable housing units by the total cost of the project, if the
project is not a housing project.
(3) Donate real property to private or public persons or entities.
(4) Finance insurance premiums pursuant to Section 33136.
(5) Construct buildings or structures.
(6) Acquire buildings or structures.
(7) Rehabilitate buildings or structures.
(8) Provide subsidies to, or for the benefit of, very low income
households, as defined by Section 50105, lower income households, as
defined by Section 50079.5, or persons and families of low- or
moderate-income, as defined by Section 50093, to the extent those
households cannot obtain housing at affordable costs on the open
market. Housing units available on the open market are those units
developed without direct government subsidies.
(9) Develop plans, pay principal and interest on bonds, loans,
advances, or other indebtedness, or pay financing or carrying
charges.
(10) Maintain the community's supply of mobilehomes.
(11) Preserve the availability to lower income households of
affordable housing units in housing developments that are assisted or
subsidized by public entities and that are threatened with imminent
conversion to market rates.
(f) The agency may use these funds to meet, in whole or in part,
the replacement housing provisions in Section 33413. However,
nothing in this section shall be construed as limiting in any way the
requirements of that section.
(g) (1) The agency may use these funds inside or outside the
project area. The agency may only use these funds outside the
project area upon a resolution of the agency and the legislative body
that the use will be of benefit to the project. The determination
by the agency and the legislative body shall be final and conclusive
as to the issue of benefit to the project area. The Legislature
finds and declares that the provision of replacement housing pursuant
to Section 33413 is always of benefit to a project. Unless the
legislative body finds, before the redevelopment plan is adopted,
that the provision of low- and moderate-income housing outside the
project area will be of benefit to the project, the project area
shall include property suitable for low- and moderate-income housing.
(2) (A) The Contra Costa County Redevelopment Agency may use these
funds anywhere within the unincorporated territory, or within the
incorporated limits of the City of Walnut Creek on sites contiguous
to the Pleasant Hill BART Station Area Redevelopment Project area.
The agency may only use these funds outside the project area upon a
resolution of the agency and board of supervisors determining that
the use will be of benefit to the project area. In addition, the
agency may use these funds within the incorporated limits of the City
of Walnut Creek only if the agency and the board of supervisors find
all of the following:
(i) Both the County of Contra Costa and the City of Walnut Creek
have adopted and are implementing complete and current housing
elements of their general plans that the Department of Housing and
Community Development has determined to be in compliance with the
requirements of Article 10.6 (commencing with Section 65580) of
Chapter 3 of Division 1 of Title 7 of the Government Code.
(ii) The development to be funded shall not result in any
residential displacement from the site where the development is to be
built.
(iii) The development to be funded shall not be constructed in an
area that currently has more than 50 percent of its population
comprised of racial minorities or low-income families.
(iv) The development to be funded shall allow construction of
affordable housing closer to a rapid transit station than could be
constructed in the unincorporated territory outside the Pleasant Hill
BART Station Area Redevelopment Project.
(B) If the agency uses these funds within the incorporated limits
of the City of Walnut Creek, all of the following requirements shall
apply:
(i) The funds shall be used only for the acquisition of land for,
and the design and construction of, the development of housing
containing units affordable to low- and moderate-income persons.
(ii) If less than all the units in the development are affordable
to low- or moderate-income persons, any agency assistance shall not
exceed the amount needed to make the housing affordable to low- or
moderate-income persons.
(iii) The units in the development that are affordable to low- or
moderate-income persons shall remain affordable for a period of at
least 55 years.
(iv) The agency and the City of Walnut Creek shall determine, if
applicable, whether Article XXXIV of the California Constitution
permits the development.
(h) The Legislature finds and declares that expenditures or
obligations incurred by the agency pursuant to this section shall
constitute an indebtedness of the project.
(i) The requirements of this section shall only apply to taxes
allocated to a redevelopment agency for which a final redevelopment
plan is adopted on or after January 1, 1977, or for any area that is
added to a project by an amendment to a redevelopment plan, and that
amendment is adopted on or after the effective date of this section.
An agency may, by resolution, elect to make all or part of the
requirements of this section applicable to any redevelopment project
for which a redevelopment plan was adopted prior to January 1, 1977,
subject to any indebtedness incurred prior to the election.
(j) This section shall become operative on January 1, 2005.
SEC. 141. Section 33334.22 of the Health and Safety Code is
amended to read:
33334.22. (a) The Legislature finds and declares that in order to
avoid serious economic hardships and accompanying blight, it is
necessary to enact this section, which shall apply only within Santa
Cruz County, and which is enacted for the purpose of providing
housing assistance to very low, lower, and moderate-income
households.
(b) Notwithstanding Section 50052.5, any redevelopment agency
within Santa Cruz County may make assistance available from its Low
and Moderate Income Housing Fund directly to a home buyer for the
purchase of an owner-occupied home, and for purposes of that
assistance and this section, "affordable housing cost" shall not
exceed the following:
(1) For very low income households, the product of 40 percent
times 50 percent of the area median income adjusted for family size
appropriate for the unit.
(2) For lower income households whose gross incomes exceed the
maximum income for very low income households and do not exceed 70
percent of the area median income adjusted for family size, the
product of 40 percent times 70 percent of the area median income
adjusted for family size appropriate for the unit. In addition, for
any lower income household that has a gross income that equals or
exceeds 70 percent of the area median income adjusted for family
size, it shall be optional for any state or local funding agency to
require that the affordable housing cost not exceed 40 percent of the
gross income of the household.
(3) For moderate-income households, affordable housing costs shall
not exceed the product of 40 percent times 110 percent of the area
median income adjusted for family size appropriate for the unit. In
addition, for any moderate-income household that has a gross income
that exceeds 110 percent of the area median income adjusted for
family size, it shall be optional for any state or local funding
agency to require that affordable housing costs not exceed 40 percent
of the gross income of the household.
(c) Any agency in Santa Cruz County that provides assistance
pursuant to this section shall include in the annual report to the
Controller, pursuant to Sections 33080 and 33080.1, all of the
following information:
(1) The sales prices of homes purchased with assistance from the
agency's Low and Moderate Income Housing Fund for each year from 2000
to 2004, inclusive.
(2) The sales prices of homes purchased and rehabilitated with
assistance from the agency's Low and Moderate Income Housing Fund for
each year from 2000 to 2004, inclusive.
(3) The incomes, and percentage of income paid for housing costs,
of all households that purchased, and that purchased and
rehabilitated, homes with assistance from the agency's Low and
Moderate Income Housing Fund for each year from 2000 to 2004,
inclusive.
(d) Except as provided in subdivision (b), all provisions of
Section 50052.5, including any definitions, requirements, standards,
and regulations adopted to implement those provisions, shall apply to
this section.
(e) This section shall remain in effect only until January 1,
2005, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2005, deletes or extends
that date.
SEC. 142. Section 33368 of the Health and Safety Code is amended
to read:
33368. The decision of the legislative body shall be final and
conclusive, and it shall thereafter be conclusively presumed that the
project area is a blighted area as defined by Section 33031 and that
all prior proceedings have been duly and regularly taken.
This section shall not apply in any action questioning the
validity of any redevelopment plan, or the adoption or approval of a
redevelopment plan, or any of the findings or determinations of the
agency or the legislative body in connection with a redevelopment
plan brought pursuant to Section 33501 within the time limits
prescribed by Section 33500.
SEC. 143. Section 33430 of the Health and Safety Code is amended
to read:
33430. An agency may, within the survey area or for purposes of
redevelopment, sell, lease, for a period not to exceed 99 years,
exchange, subdivide, transfer, assign, pledge, encumber by mortgage,
deed of trust, or otherwise, or otherwise dispose of any real or
personal property or any interest in property.
SEC. 144. Section 41705 of the Health and Safety Code, as amended
by Section 1 of Chapter 424 of the Statutes of 2001, is amended to
read:
41705. (a) Section 41700 does not apply to odors emanating from
any of the following:
(1) Agricultural operations necessary for the growing of crops or
the raising of fowl or animals.
(2) Operations that produce, manufacture, or handle compost, as
defined in Section 40116 of the Public Resources Code, if the odors
emanate directly from the compost facility or operations.
(3) Operations that compost green material or animal waste
products derived from agricultural operations, and that return
similar amounts of the compost produced to that same agricultural
operations source, or to an agricultural operations source owned or
leased by the owner, parent company, or subsidiary conducting the
composting operation. The composting operation may produce an
incidental amount of compost not exceeding 2,500 cubic yards of
compost, which may be given away or sold annually.
(b) If a district receives a complaint pertaining to an odor
emanating from a compost operation exempt from Section 41700 pursuant
to paragraph (2) or (3) of subdivision (a), that is subject to the
jurisdiction of an enforcement agency under Division 30 (commencing
with Section 40000) of the Public Resources Code, the district shall,
within 24 hours or by the next working day, refer the complaint to
the enforcement agency.
(c) This section shall become inoperative on April 1, 2003, unless
the California Integrated Waste Management Board adopts and submits
regulations governing the operation of organic composting sites to
the Office of Administrative Law pursuant to subdivision (c) of
Section 43209.1 of the Public Resources Code on or prior to that
date.
SEC. 145. Section 41705 of the Health and Safety Code, as amended
by Section 2 of Chapter 424 of the Statutes of 2001, is amended to
read:
41705. (a) Section 41700 shall not apply to odors emanating from
agricultural operations necessary for the growing of crops or the
raising of fowl or animals.
(b) This section shall become operative on April 1, 2003, unless
the California Integrated Waste Management Board adopts and submits
regulations governing the operation of organic composting sites to
the Office of Administrative Law pursuant to subdivision (c) of
Section 43209.1 of the Public Resources Code on or prior to that
date.
SEC. 146. Section 42801.1 of the Health and Safety Code is amended
to read:
42801.1. For purposes of this chapter, the following terms have
the following meanings:
(a) "Annual emissions results" means the participant's applicable
data on the release of greenhouse gas emissions, both direct and
indirect, from one particular year.
(b) "Baseline" means a datum against which to measure greenhouse
gas emissions performance over time, usually annual emissions in a
selected base year. For the purposes of this chapter, the baseline
shall start on or after January 1, 1990.
(c) "Certification" means the determination of whether a given
participant's greenhouse gas emissions inventory (either baseline or
annual result) has met a minimum quality standard and complied with
an appropriate set of registry-approved procedures and protocols for
submitting emissions inventory information. The process for
certification of emissions results will be specified within the
procedures and protocols approved for industry-specific emissions
inventory reporting, and may involve a range of options depending
upon the nature of the emissions, complexity of a company's
facilities and operations, or both, and the procedures deemed
necessary by the registry board to validate a participant's emissions
information.
(d) "De minimis emissions" means emissions that are below a
certain threshold, when summed across all applicable sources of the
participating entity. The State Energy Resources Conservation and
Development Commission shall recommend to the registry for adoption a
threshold emissions level for each type of greenhouse gas emission
that shall be considered de minimus.
(e) "Emissions" means the release of greenhouse gases into the
atmosphere.
(f) (1) "Emissions inventory" means an accounting of the amount of
greenhouse gases discharged into the atmosphere. It is generally
characterized by all of the following factors:
(A) The chemical or physical identity of the pollutants included.
(B) The geographic area covered.
(C) The institutional entities covered.
(D) The time period over which emissions are estimated.
(E) The types of activities that cause emissions.
(2) An emissions inventory shall include sufficient documentation
and supporting data to make transparent the underlying assumptions
and calculations for all of the reported results.
(g) "Greenhouse gases" includes all of the following gases:
carbon dioxide, methane, nitrous oxide, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(h) "Material" means any emission of greenhouse gas that is not de
minimis.
SEC. 147. Section 42840 of the Health and Safety Code is amended
to read:
42840. (a) Participants shall utilize the following reporting
procedures to establish a greenhouse gas emissions baseline.
Participants shall report their certified emissions for the most
recent year for which they have complete energy use and fuel
consumption data as specified in this chapter. Participants that
have complete energy use or fuel consumption data for earlier years
that can be certified may establish their baseline as any year
beginning on or after January 1, 1990. After establishing baseline
emissions, participants shall report their certified emissions
results in each subsequent year in order to show changes in emissions
levels with respect to their baseline year. Participants may report
annual emission results without establishing an emissions baseline.
Participants shall also report using industry-specific metrics once
the registry adopts an industry-specific metric for the industry in
question.
(b) (1) Participants shall report
direct emissions and indirect emissions separately. Direct emissions
are those emissions from applicable sources that are under
management control of a participating entity, including onsite
combustion, fugitive noncombustion emissions, and vehicles owned and
operated by the participant. Indirect emissions that are required to
be reported by participants are those emissions embodied in net
electricity and steam imports, including offsite steam generation and
district heating and cooling. Participants are encouraged, but are
not required, to report other indirect emissions based on guidance
that is adopted by the registry.
(2) On or after January 1, 2004, the registry board, in
coordination with the State Energy Resources Conservation and
Development Commission, may revise the scope of indirect emission
source types that are required to be reported by participants
specified in paragraph (1) after a public workshop and review process
conducted by the registry if all of the following requirements have
been met.
(A) The State Energy Resources Conservation and Development
Commission has approved that revision at a public hearing following a
public workshop.
(B) Prior to approving that proposed revision, the commission
determines all of the following:
(i) A reasonable and generally accepted methodology exists that
will enable participants to accurately estimate and report the
emissions for the indirect source type in question.
(ii) The proposed revision will not create an unreasonable
reporting burden on the participants.
(iii) The proposed revision is necessary to achieve the purposes
listed in Section 42810.
(C) The registry, at any time it acts to revise the scope of
indirect emission source types that are required to be reported by
participants, establishes a timeframe for the phasein of the revised
scope so that participants shall have at least four months before the
start of the next annual reporting cycle that incorporates the
revised scope.
(3) In cases of joint ownership, emissions are reported by the
managing entity, unless the owners decide to report emissions on a
pro rata basis.
(4) Participants shall not be required to report emissions of any
greenhouse gas that is de minimis in quantity, when summed up across
all applicable sources of the participating entity. The State Energy
Resources Conservation and Development Commission shall recommend to
the registry a definition of de minimis emissions that reasonably
accounts for differences in the size, activities, and sources of
direct and indirect baseline emissions of participants, and is
consistent with the goals and intent of subdivision (f) of Section
42801.
(c) (1) All participants shall report direct and indirect carbon
dioxide (CO2) emissions that are material to their operations.
(2) The registry shall also encourage participants to monitor and
report emissions of the following gases:
(A) Hydrofluorocarbons (HFCs).
(B) Methane (CH4).
(C) Oxides of nitrogen (N2O).
(D) Perfluorocarbons (PFCs).
(E) Sulfur hexafluoride (SF6).
(3) The report of information specified in paragraph (2) is
optional for three years after a participant joins the registry.
After participating in the registry for a total of three years,
participants shall report emissions required by both paragraphs (1)
and (2).
(4) Emissions of all gases under this subdivision shall be
reported in mass units.
(d) The basic unit of participation in the registry shall be an
entity in its entirety such as a corporation or other legally
constituted body, any city or county, and each state government
agency. The registry shall not record emissions baselines and
reductions for individual facilities or projects, except to the
extent they are included in an entity's emissions reporting.
(1) Corporations may report emissions baselines and annual
emissions results from subsidiaries if the parent corporation is
clearly defined.
(2) Participants shall report emissions from all of their
applicable sources in the state when they initially register.
(3) Participants may, and are encouraged to, at any time, register
emissions from all applicable sources based in the United States, so
long as this reporting meets all the other requirements established
by this chapter. Those participants with emissions in other states
that report California emissions only may not be able to receive
equal consideration for their emissions records in future national or
international regulatory regimes relating to greenhouse gas
emissions. In addition, participants with operations outside of the
United States are encouraged to register their total worldwide
emissions baselines and annual emissions results. Within three
years, the registry shall review and report to the Legislature with a
recommendation on whether the registry should require, rather than
encourage, participants to report all of their greenhouse gas
emissions in the United States, not just California emissions.
(4) To ensure that reported emissions reflect actual emissions,
participants that outsource production or services shall report
emissions associated with the outsourced activity, and remove these
emissions from their emissions baseline. The subcontracted entity,
if it voluntarily chooses to participate in the registry shall report
emissions associated with the outsourced activities it has taken
over. Participants shall attest at least once each year that the
entity has not outsourced any emissions, or that if it has, that all
emissions associated with the outsourced activity have been reported
and subtracted from the entity's baseline emissions.
(5) To prevent changes in vertical integration within corporations
from leading to apparent emissions reductions when in fact no
reductions have occurred, the registry shall treat mergers,
acquisitions, and divestitures as follows:
(A) The emissions baselines of any merged or acquired entity shall
be added together, and the registry shall treat the resulting entity
as if it had been one corporation from the beginning.
(B) In divestitures, the emissions baselines of the affected
corporations shall be split, with the effect that the registry shall
treat them as if they had been separate corporations from the
beginning. If the divested corporation is purchased by another firm,
the registry shall treat that purchase as a merger with the
purchasing corporation. If the divested corporation remains a
separate entity after the divestiture, its registry baseline shall
reflect the emissions associated with the entity's operations before
the divestiture. Corporations that divest operations may allocate
certified emissions results achieved prior to the divestiture among
the divesting and the divested entities, and the registry shall
adjust their baselines accordingly.
(C) Any adjustments for changes in vertical integration shall be
verified in the annual emissions certifications required for
recordation of emissions results.
(6) If a participant changes from statewide to national reporting
under this program, changes to its baseline will be treated in a
similar manner as changes in vertical integration as described in
paragraph (5).
(7) To ensure that reported emissions accurately reflect shifts in
operations to or from other states, the registry shall adopt, in
consultation with the State Energy Resources Conservation and
Development Commission, at a public meeting and following at least
one public workshop, reporting procedures for participants that
choose to report greenhouse emissions on a statewide basis that
require participants to show both of the following:
(A) Changes in a participant's operations, such as a facility
startup or shutdown, that result in a significant and long-term shift
of greenhouse gas emissions from California to other states or from
other states to California.
(B) The corresponding change in the participant's baseline.
SEC. 148. Section 44265 of the Health and Safety Code is amended
to read:
44265. (a) The grant program described in this chapter may be
administered by a local air management district or air pollution
control district on a voluntary basis.
(b) Any district that voluntarily administers this grant program
is authorized to provide grants from its own funding sources in an
amount of five hundred dollars ($500) to one thousand dollars
($1,000) or more per year for each qualified zero-emission vehicle
registered within the boundaries of its territorial jurisdiction.
SEC. 149. Section 51452 of the Health and Safety Code is amended
to read:
51452. (a) The School Facilities Fee Assistance Fund is hereby
established in the State Treasury and, notwithstanding Section 13340
of the Government Code, all money in the fund is continuously
appropriated to the Department of General Services for the purposes
of this chapter. All repayments of disbursed funds pursuant to this
chapter or any interest earned from the investment in the Surplus
Money Investment Fund or any other moneys accruing to the fund from
whatever source shall be returned to the fund and are available for
allocation by the California Housing Finance Agency to programs
established pursuant to this chapter.
(b) The following amounts are hereby appropriated from the General
Fund to the School Facilities Fee Assistance Fund for administrative
costs and to make payments to purchasers of newly constructed
residential structures and housing sponsors of housing developments
pursuant to this chapter from that fund by fiscal year as follows:
(1) Twenty million dollars ($20,000,000) in the 1998-99 fiscal
year.
(2) Forty million dollars ($40,000,000) in the 1999-2000 fiscal
year.
(3) Forty million dollars ($40,000,000) in the 2000-01 fiscal
year.
(4) Forty million dollars ($40,000,000) in the 2001-02 fiscal
year.
(c) The funds shall be distributed to each program in proportion
to the original total amounts available for each program as follows:
(1) Twenty-eight million dollars ($28,000,000) shall be available
for the program set forth in paragraph (1) of subdivision (a) of
Section 51451, except that any funds not expended within 18 months of
their appropriation and availability may also be available for
programs set forth in paragraphs (2) and (3) of subdivision (a) of
Section 51451.
(2) Twenty-eight million dollars ($28,000,000) shall be available
for the program set forth in paragraph (2) of subdivision (a) of
Section 51451, except that any funds not expended within 18 months of
their appropriation and availability may also be available for the
program set forth in paragraph (3) of subdivision (a) of Section
51451.
(3) Fifty-two million dollars ($52,000,000) shall be available for
the program set forth in paragraph (3) of subdivision (a) of Section
51451.
(4) Fifty-two million dollars ($52,000,000) shall be available for
the program set forth in subdivision (b) of Section 51451.
(d) Reservations received on or after January 1, 2002, for
participation in the programs authorized by Section 51451 shall not
be honored by the California Housing Finance Agency. As of that
date, any unobligated amounts remaining in the School Facilities Fee
Assistance Fund after the transfer made pursuant to Item
1760-115-0101 of Section 2.00 of the Budget Act of 2001 (Chapter 106
of the Statutes of 2001) shall be transferred to the General Fund.
(e) Any right to receive repayments of assistance provided for by
Section 51451 shall be an asset of the School Facilities Fee
Assistance Fund. Any assistance provided for by Section 51451 that
is reserved but not ultimately paid, or is repaid to the California
Housing Finance Agency, shall be remitted to the Department of
General Services for deposit into the General Fund.
SEC. 150. Section 104324.2 of the Health and Safety Code is
amended to read:
104324.2. (a) On or before July 1, 2002, the Division of
Environmental and Occupational Disease Control in the State
Department of Health Services, in consultation with the Office of
Environmental Health Hazard Assessment, shall create a working group
of technical experts, including experts who have knowledge of the
sensitivity and exposure of children, women of childbearing age,
seniors, and disparately affected populations to environmental
hazards, to do all of the following:
(1) Develop possible approaches to establishing the EHSS,
including an estimated cost for each approach.
(2) Prepare and submit a report to the State Department of Health
Services, the Office of Environmental Health Hazard Assessment, and
appropriate legislative committees, by July 1, 2003, on the possible
approaches to establishing the EHSS, including an estimated cost of
each approach, and the recommended approach to establishing an EHSS
for California.
(3) Develop the health and environmental measurements needed to do
both of the following:
(A) Obtain an ongoing picture of the health of Californians.
(B) Establish a database that may facilitate the examination of
the relationship between chronic diseases, including birth defects,
and the environment.
(b) The Regents of the University of California are requested to
cooperate with the division and the office in creating the work group
described in this section.
SEC. 151. Section 114090 of the Health and Safety Code is amended
to read:
114090. (a) All utensils and equipment shall be scraped, cleaned,
or sanitized as circumstances require.
(b) All food establishments in which food is prepared or in which
multiservice kitchen utensils are used shall have a sink with at
least three compartments with two integral metal drainboards.
Additional drainage space that is not necessarily attached to the
sink may be provided. The sink compartments and drainage facilities
shall be large enough to accommodate the largest utensil or piece of
equipment to be cleaned therein. A one-compartment or
two-compartment sink that is in use on January 1, 1996, may be
continued in use until replaced. The enforcement officer may approve
the continued use of a one-compartment or two-compartment sink even
upon replacement if the installation of a three-compartment sink
would not be readily achievable and where other approved sanitation
methods are used.
(c) All food establishments in which multiservice consumer
utensils are used shall clean the utensils in one of the following
ways:
(1) Handwashing of utensils using a three-compartment metal sink
with dual integral metal drainboards where the utensils are first
washed by hot water and a cleanser until they are clean, then rinsed
in clear, hot water before being immersed in a final warm solution
meeting the requirements of Section 114060.
(2) Machine washing of utensils in machines using a hot water or
chemical sanitizing rinse shall meet or be equivalent to sanitation
standards approved pursuant to Section 114065 and shall be installed
and operated in accordance with those standards. The machines shall
be of a type, and shall be installed and operated, as approved by the
department. The velocity, quantity, and distribution of the wash
water, type and concentration of detergent used therein, and the time
the utensils are exposed to the water, shall be sufficient to clean
the utensils.
(3) A two-compartment metal sink, having metal drainboards,
equipped for hot water sanitization, that is in use on January 1,
1985, may be continued in use until replaced.
(4) Other methods may be used after approval by the department.
(d) Hot and cold water under pressure shall be provided through a
mixing valve to each sink compartment in all food establishments
constructed on or after January 1, 1985.
(e) All utensil washing equipment, except undercounter dish
machines, shall be provided with two integral metal drainboards of
adequate size and construction. One drainboard shall be attached at
the point of entry for soiled items and one shall be attached at the
point of exit for cleaned and sanitized items. Where an undercounter
dish machine is used, there shall be two metal drainboards, one for
soiled utensils and one for clean utensils, located adjacent to the
machine. The drainboards shall be sloped and drained to an approved
waste receptor. This requirement may be satisfied by using the
drainboards appurtenant to sinks as required in subdivision (b) and
paragraph (1) of subdivision (c), if the facilities are located
adjacent to the machine.
(f) The handling of cleaned and soiled utensils, equipment, and
kitchenware shall be undertaken in a manner that will preclude
possible contamination of cleaned items with soiled items.
(g) All utensils, display cases, windows, counters, shelves,
tables, refrigeration units, sinks, dishwashing machines, and other
equipment or utensils used in the preparation, sale, service, and
display of food shall be made of nontoxic, noncorrosive materials,
shall be constructed, installed, and maintained to be easily cleaned,
and shall be kept clean and in good repair.
(h) Utensils and equipment shall be handled and stored so as to be
protected from contamination. Single-service utensils shall be
obtained only in sanitary containers or approved sanitary dispensers,
stored in a clean, dry place until used, handled in a sanitary
manner, and used once only.
(i) Equipment food-contact surfaces and utensils shall be cleaned
and sanitized as follows:
(1) Each time there is a change in processing between types of
animal products, except when products are handled in the following
order: any cooked ready-to-eat products first; raw beef and lamb
products second; raw fish products third; and raw pork or poultry
products last.
(2) Each time there is a change from working with raw foods of
animal origin to working with ready-to-eat foods.
(3) Between uses with raw fruits or vegetables and with
potentially hazardous food.
(4) Before each use of a food temperature-measuring device.
(5) At any time during the food handling operation when
contamination may have occurred.
(j) (1) Except as provided in paragraphs (2) and (3) of this
subdivision, if used with potentially hazardous food, equipment
food-contact surfaces and utensils shall be cleaned and sanitized
throughout the day, at least every four hours.
(2) Equipment food-contact surfaces and utensils may be cleaned
and sanitized less frequently than every four hours if the utensils
and equipment are used to prepare food in a refrigerated room, at or
below 13 degrees Celsius (55 degrees Fahrenheit), and the utensils
and equipment are cleaned and sanitized at least every 24 hours.
(3) Equipment food-contact surfaces and utensils may be cleaned
and sanitized less frequently than every four hours if the
enforcement agency approves the cleaning schedule utilized based on a
consideration of the following factors:
(A) Characteristics of the equipment and its use.
(B) The type of food involved.
(C) The amount of food residue accumulation.
(D) The temperature at which the food is maintained during the
operation and the potential for the rapid and progressive growth of
infectious or toxigenic microorganisms that may cause food infections
or food intoxications.
(k) Nonfood contact surfaces of equipment shall be cleaned at a
frequency necessary to prevent accumulation of residue.
SEC. 152. The heading of Chapter 5 (commencing with Section
127630) of Part 2 of Division 107 of the Health and Safety Code is
amended to read:
CHAPTER 5. SPECIALTY CARE UNDERSERVED AREAS
SEC. 153. Section 130140.1 of the Health and Safety Code is
amended to read:
130140.1. (a) In the event a county elects to participate in the
California Children and Families Program, and satisfies the
requirements set forth in Section 130140, the county may establish a
county commission that is either of the following:
(1) A legal public entity separate from the county.
(2) An agency of the county with independent authority over the
strategic plan described in Section 130140 and the local trust fund
established pursuant to subparagraph (A) of paragraph (2) of
subdivision (d) of Section 130105.
(b) In the event a county elects to establish a county commission
as specified in paragraph (1) of subdivision (a), the following
conditions shall apply:
(1) The county commission shall be considered a legal public
entity separate from the county, and shall file a statement as
required by Section 53051 of the Government Code.
(2) The powers, duties, and responsibilities of the county
commission shall include, but shall not be limited to, the following:
(A) The power to employ personnel and contract for personal
services required to meet its obligations.
(B) The power to enter into any contracts necessary or appropriate
to carry out the provisions of this division.
(C) The power to acquire, possess, and dispose of real or personal
property, as necessary or appropriate to carry out the provisions
and purposes of this division.
(D) The power to sue or be sued.
(3) The county commission shall be deemed to be a public agency
that is a unit of local government for purposes of all grant programs
and other funding and loan guarantee programs.
(4) Any obligations of the county commission, statutory,
contractual, or otherwise, shall be obligations solely of the
commission.
(5) All claims or actions for money or damages against a county
commission shall be governed by Part 3 (commencing with Section 900)
and Part 4 (commencing with Section 940) of Division 3.6 of Title 1
of the Government Code, except as provided by other statutes or
regulations that expressly apply to county commissions.
(6) The county commission, its members, and its employees are
protected by the immunities applicable to public entities and public
employees governed by Part 1 (commencing with Section 810) and Part 2
(commencing with Section 814) of Division 3.6 of Title 1 of the
Government Code, except as provided by other statutes or regulations
that apply expressly to the county commissions.
(7) If a county board of supervisors elects not to continue the
county's participation in the California Children and Families
Program, the board shall adopt an ordinance terminating the county
commission.
(A) In terminating its county commission, the board of supervisors
shall allow, to the extent possible, an appropriate transition
period to allow for the county commission's then-existing obligations
to be satisfied.
(B) In event of termination, any unencumbered and unexpended
moneys remaining in the local Children and Families Trust Fund shall
be distributed pursuant to subdivision (e) of Section 130140.
(C) Prior to the termination of the county commission, the board
of supervisors shall notify the state Children and Families
Commission of its intent to terminate the county commission.
(D) The liabilities of the county commission shall not become
obligations of the county upon either the termination of the county
commission or the liquidation or disposition of the county commission'
s remaining assets.
(c) If a county elects to establish a county commission as
provided in paragraph (2) of subdivision (a), the county commission
shall be deemed to be an agency of the county with independent
authority over the strategic plan described in Section 130140 and the
local Children and Families Trust Fund established pursuant to
subparagraph (A) of paragraph (2) of subdivision (d) of Section
130105.
(d) Any county commission established prior to the effective date
of this section that substantially complies with the provisions of
either subdivision (b) or (c) shall be deemed to be in compliance
with this section.
(e) (1) Individually identifiable physical or mental health
information, substance abuse information, child care or education
information, personnel or employment information, financial
information, criminal justice information, or demographic
information, regarding a child or a child's parent, legal guardian,
or other family member, that is provided to a county commission by a
parent, legal guardian, family member, health care provider, health
plan, public health authority, school, law enforcement agency, social
services agency, probation agency, or any other source, shall be
considered confidential, and may be disclosed only to a person,
agency, or entity that receives funding from the county commission,
by way of a grant award or contract or as a service provider for the
provision of early childhood services, and only to the extent
necessary to the provision of services, unless further disclosure is
authorized by a written consent of the parent or legal guardian, or
where disclosure is required by state or federal law.
(2) Confidential information identified in accordance with this
section shall not be subject to disclosure under the California
Public Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code).
SEC. 154. Section 1874.85 of the Insurance Code is amended to
read:
1874.85. An insurer that issues automobile liability or collision
policies shall inspect vehicles for which it has approved a claim
for the cost of auto body repairs, either during the repair process
or after the work has been completed, and the number of vehicles
inspected shall be a statistical sampling sufficient to demonstrate
to the department the insurer's efforts to reduce fraudulent auto
body work during a calendar year.
SEC. 155. Section 10139.5 of the Insurance Code is amended to
read:
10139.5. (a) This section shall become operative only upon
enactment into law of amendments to the Federal Internal Revenue Code
to impose an excise tax on a transfer of structured settlement
payment rights if the transfer is not approved by a court.
This section shall remain in effect only until January 1, 2005,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2005, deletes or extends that date.
(b) A direct or indirect transfer of structured settlement payment
rights is not effective and a structured settlement obligor or
annuity issuer is not required to make any payment directly or
indirectly to any transferee of structured settlement payment rights
unless the transfer has been approved in advance in a final court
order based on express findings by the court that:
(1) The transfer is in the best interest of the payee, taking into
account the welfare and support of the payee's dependents.
(2) The payee has been advised in writing by the
transferee to seek independent professional advice regarding the
transfer and has either received that advice or knowingly waived that
advice in writing.
(3) The transferee has provided the payee with a disclosure form
consistent with Section 10136 and the transfer agreement complies
with Section 10138.
(4) The transfer does not contravene any applicable statute or the
order of any court or other government authority.
(c) Following a transfer of structured settlement payment rights
under this article:
(1) The structured settlement obligor and the annuity issuer
shall, as to all parties except the transferee, be discharged and
released from any and all liability for the transferred payments.
(2) The transferee shall be liable to the structured settlement
obligor and the annuity issuer if the transfer contravenes the terms
of the structured settlement for the following:
(A) Any taxes incurred by those parties as a consequence of the
transfer.
(B) Any other liabilities or costs, including reasonable costs and
attorney's fees, arising from compliance by those parties with the
order of the court or arising as a consequence of the transferee's
failure to comply with this article.
(3) Neither the annuity issuer nor the structured settlement
obligor may be required to divide any periodic payment between the
payee and any transferee or assignee or between two, or more,
transferees or assignees.
(4) Any further transfer of structured settlement payment rights
by the payee may be made only after compliance with all of the
requirements of this article.
(5) An application under this article for approval of a transfer
of structured settlement payment rights shall be made by the
transferee and brought in the county in which the payee resides if
the payee is a resident of California. If the payee is not a
resident of California, the application for approval of a transfer of
structured settlement payment rights shall be made by the transferee
and may be brought as follows:
(A) In the county in which the payee resides.
(B) In the county in which the structured settlement obligor or
the annuity issuer maintains its principal place of business.
(C) In any court that approved the structured settlement
agreement.
(6) Not less than 20 days prior to the scheduled hearing on any
application for approval of a transfer of structured settlement
payment rights under this article, the transferee shall file with the
court and serve on all interested parties a notice of the proposed
transfer and the application for its authorization, and shall include
the following with that notice:
(A) A copy of the transferee's application.
(B) A copy of the transfer agreement.
(C) A listing of each of the payee's dependents, together with
each dependent's age.
(D) A copy of the disclosure required in subdivision (a) of
Section 10136.
(E) A copy of the annuity contract.
(F) A copy of any qualified assignment agreement.
(G) A copy of the underlying structured settlement agreement.
(H) Notification that any interested party is entitled to support,
oppose, or otherwise respond to the transferee's application, either
in person or by counsel, by submitting written comments to the court
or by participating in the hearing.
(I) Notification of the time and place of the hearing and
notification of the manner in which and the time by which written
responses to the application must be filed, which may not be less
than 15 days after service of the transferee's notice, in order to be
considered by the court.
(7) All court costs and filing fees shall be paid by the
transferee.
(8) No later than the time of filing the petition for court
approval, the transferee shall advise the payee of the payee's right
to seek counsel in connection with the transferee's petition for
court approval of the transfer agreement, and shall further advise
the payee that if the payee retains counsel in connection with a
petition for an order approving the transfer agreement, that the
transferee shall pay the payee's counsel's fees, regardless of
whether the transfer agreement is approved, in an amount not to
exceed one thousand five hundred dollars ($1,500).
(d) The transferee shall, within 30 days of obtaining final court
approval, file with the Attorney General a copy of any final court
order approving or denying the transfer of structured settlement
payment rights. The transferee shall specify in written form the
following information:
(1) Whether the payee was represented by an attorney and the costs
paid or owed to that attorney by the transferee and, if known, by
the payee.
(2) The county and judicial district where the court approval was
filed.
(3) For approved agreements, whether any changes were made to the
transfer agreement.
(4) For rejected agreements, the general category for the
rejection.
(5) The total court costs and attorney's fees paid by the
transferor to obtain court approval.
(6) The purchase prices of the transfer agreement and its
effective interest rate.
(e) Not later than March 31, 2004, the Attorney General shall file
a report with the Legislature to assist in the evaluation of the
impact of this section. The report shall include, based on
information the Attorney General has received from transferees, the
following:
(1) The number of petitions filed.
(2) The number of petitions approved without change.
(3) The number of petitions approved with changes and the general
category of the changes requested.
(4) The number of petitions rejected and the general categories
for rejection.
(5) The range of purchase prices, mean purchase price, median
purchase price, mean effective interest rate, and median effective
interest rate.
(6) The number of petitions in which the payee was represented by
counsel, and if known, the amount of compensation paid to counsel by
the transferee and the payee.
SEC. 156. Section 10145.4 of the Insurance Code is amended to
read:
10145.4. (a) For an insured diagnosed with cancer and accepted
into a phase I, phase II, phase III, or phase IV clinical trial for
cancer, every policy of disability insurance that provides hospital,
medical, or surgical coverage in this state shall provide coverage
for all routine patient care costs related to the clinical trial if
the insured's treating physician, who is providing covered health
care services to the insured under the insured's health benefit plan
contract, recommends participation in the clinical trial after
determining that participation in the clinical trial has a meaningful
potential to benefit the insured. For purposes of this section, a
clinical trial's endpoints shall not be defined exclusively to test
toxicity, but shall have a therapeutic intent.
(b) (1) "Routine patient care costs" means the costs associated
with the provision of health care services, including drugs, items,
devices, and services that would otherwise be covered under the plan
or contract if those drugs, items, devices, and services were not
provided in connection with an approved clinical trial program,
including the following:
(A) Health care services typically provided absent a clinical
trial.
(B) Health care services required solely for the provision of the
investigational drug, item, device, or service.
(C) Health care services required for the clinically appropriate
monitoring of the investigational item or service.
(D) Health care services provided for the prevention of
complications arising from the provision of the investigational drug,
item, device, or service.
(E) Health care services needed for the reasonable and necessary
care arising from the provision of the investigational drug, item,
device, or service, including the diagnosis or treatment of the
complications.
(2) For purposes of this section, "routine patient care costs"
does not include the costs associated with the provision of any of
the following:
(A) Drugs or devices that have not been approved by the federal
Food and Drug Administration and that are associated with the
clinical trial.
(B) Services other than health care services, such as travel,
housing, companion expenses, and other nonclinical expenses, that an
insured may require as a result of the treatment being provided for
purposes of the clinical trial.
(C) Any item or service that is provided solely to satisfy data
collection and analysis needs and that is not used in the clinical
management of the patient.
(D) Health care services which, except for the fact that they are
not being provided in a clinical trial, are otherwise specifically
excluded from coverage under the insured's health plan.
(E) Health care services customarily provided by the research
sponsors free of charge for any enrollee in the trial.
(c) The treatment shall be provided in a clinical trial that
either (1) involves a drug that is exempt under federal regulations
from a new drug application or (2) that is approved by one of the
following:
(A) One of the National Institutes of Health.
(B) The federal Food and Drug Administration, in the form of an
investigational new drug application.
(C) The United States Department of Defense.
(D) The United States Veterans' Administration.
(d) In the case of health care services provided by a contracting
provider, the payment rate shall be at the agreed-upon rate. In the
case of a noncontracting provider, the payment shall be at the
negotiated rate the insurer would otherwise pay to a contracting
provider for the same services, less applicable copayments and
deductibles. Nothing in this section shall be construed to prohibit
a disability insurer from restricting coverage for clinical trials to
hospitals and physicians in California unless the protocol for the
clinical trial is not provided for at a California hospital or by a
California physician.
(e) The provision of services when required by this section shall
not, in itself, give rise to liability on the part of the insurer.
(f) This section shall not apply to vision-only, dental-only,
accident-only, specified disease, hospital indemnity, Medicare
supplement, CHAMPUS supplement, long-term care, or disability income
insurance, except that for specified disease and hospital indemnity
insurance, coverage for benefits under this section shall apply, but
only to the extent that the benefits are covered under the general
terms and conditions that apply to all other benefits under the
policy. Nothing in this section shall be construed as imposing a new
benefit mandate on specified disease or hospital indemnity
insurance.
(g) Nothing in this section shall be construed to prohibit, limit,
or modify an insured's rights to the independent review process
available under Section 10145.3 or to the Independent Medical Review
System available under Article 3.5 (commencing with Section 10169).
(h) Nothing in this section shall be construed to otherwise limit
or modify any existing requirements under the provisions of this
chapter or to prevent application of deductible or copayment
provisions contained in the policy.
(i) Copayments and deductibles applied to services delivered in a
clinical trial shall be the same as those applied to the same
services if not delivered in a clinical trial.
SEC. 157. Section 12699.56 of the Insurance Code is amended to
read:
12699.56. (a) Upon its approval of a proposal, the board, in
collaboration with the State Department of Health Services, may
provide the applicant reimbursement in an amount equal to the amount
that the applicant will contribute to implement the program described
in its proposal, plus the appropriate and allowable amount of
federal funds under the State Children's Health Insurance Program
(Subchapter 21 (commencing with Section 1397aa) of Chapter 7 of Title
42 of the United States Code). Reimbursement provided from the
Children's Health Initiative Matching Fund shall consist of
intergovernmental transfers from applicants, as defined in
subdivision (b) of Section 12699.51, and the appropriate and
allowable federal State Children's Health Insurance Program funds.
Not more than 10 percent of the Children's Health Initiative Matching
Fund shall be expended for administrative costs, including the costs
to the state to administer the proposal. The board, in
collaboration with the State Department of Health Services, may audit
the expenses incurred by the applicant in implementing its program
to ensure that the expenditures comply with the provisions of this
part. No reimbursement may be made to an applicant that fails to
meet its financial participation obligation under this part.
Reasonable startup costs and ongoing administrative costs for the
program shall be reimbursed by those entities applying for funding.
(b) Each applicant that is provided funds under this part shall
submit to the board a plan to limit initial and continuing enrollment
in its program in the event the amount of moneys for its program is
insufficient to maintain health insurance coverage for those
participating in the program.
SEC. 158. Section 98.7 of the Labor Code is amended to read:
98.7. (a) Any person who believes that he or she has been
discharged or otherwise discriminated against in violation of any law
under the jurisdiction of the Labor Commissioner may file a
complaint with the division within six months after the occurrence of
the violation. The six-month period may be extended for good cause.
The complaint shall be investigated by a discrimination complaint
investigator in accordance with this section. The Labor Commissioner
shall establish procedures for the investigation of discrimination
complaints. A summary of the procedures shall be provided to each
complainant and respondent at the time of initial contact. The Labor
Commissioner shall inform complainants charging a violation of
Section 6310 or 6311, at the time of initial contact, of his or her
right to file a separate, concurrent complaint with the United States
Department of Labor within 30 days after the occurrence of the
violation.
(b) Each complaint of unlawful discharge or discrimination shall
be assigned to a discrimination complaint investigator who shall
prepare and submit a report to the Labor Commissioner based on an
investigation of the complaint. The Labor Commissioner may designate
the chief deputy or assistant Labor Commissioner or the chief
counsel to receive and review the reports. The investigation shall
include, where appropriate, interviews with the complainant,
respondent, and any witnesses who may have information concerning the
alleged violation, and a review of any documents that may be
relevant to the disposition of the complaint. The identity of a
witness shall remain confidential unless the identification of the
witness becomes necessary to proceed with the investigation or to
prosecute an action to enforce a determination. The investigation
report submitted to the Labor Commissioner or designee shall include
the statements and documents obtained in the investigation, and the
findings of the investigator concerning whether a violation occurred.
The Labor Commissioner may hold an investigative hearing whenever
the Labor Commissioner determines, after review of the investigation
report, that a hearing is necessary to fully establish the facts. In
the hearing the investigation report shall be made a part of the
record and the complainant and respondent shall have the opportunity
to present further evidence. The Labor Commissioner shall issue,
serve, and enforce any necessary subpoenas.
(c) If the Labor Commissioner determines a violation has occurred,
he or she shall notify the complainant and respondent and direct the
respondent to cease and desist from the violation and take any
action deemed necessary to remedy the violation, including, where
appropriate, rehiring or reinstatement, reimbursement of lost wages
and interest thereon, payment of reasonable attorney's fees
associated with any hearing held by the Labor Commissioner in
investigating the complaint, and the posting of notices to employees.
If the respondent does not comply with the order within 10 working
days following notification of the Labor Commissioner's
determination, the Labor Commissioner shall bring an action promptly
in an appropriate court against the respondent. If the Labor
Commissioner fails to bring an action in court promptly, the
complainant may bring an action against the Labor Commissioner in any
appropriate court for a writ of mandate to compel the Labor
Commissioner to bring an action in court against the respondent. If
the complainant prevails in his or her action for a writ, the court
shall award the complainant court costs and reasonable attorney's
fees, notwithstanding any other law. Regardless of any delay in
bringing an action in court, the Labor Commissioner shall not be
divested of jurisdiction. In any action, the court may permit the
claimant to intervene as a party plaintiff to the action and shall
have jurisdiction, for cause shown, to restrain the violation and to
order all appropriate relief. Appropriate relief includes, but is
not limited to, rehiring or reinstatement of the complainant,
reimbursement of lost wages and interest thereon, and any other
compensation or equitable relief as is appropriate under the
circumstances of the case. The Labor Commissioner shall petition the
court for appropriate temporary relief or restraining order unless
he or she determines good cause exists for not doing so.
(d) (1) If the Labor Commissioner determines no violation has
occurred, he or she shall notify the complainant and respondent and
shall dismiss the complaint. The Labor Commissioner may direct the
complainant to pay reasonable attorney's fees associated with any
hearing held by the Labor Commissioner if the Labor Commissioner
finds the complaint was frivolous, unreasonable, groundless, and was
brought in bad faith. The complainant may, after notification of the
Labor Commissioner's determination to dismiss a complaint, bring an
action in an appropriate court, which shall have jurisdiction to
determine whether a violation occurred, and if so, to restrain the
violation and order all appropriate relief to remedy the violation.
Appropriate relief includes, but is not limited to, rehiring or
reinstatement of the complainant, reimbursement of lost wages and
interest thereon, and other compensation or equitable relief as is
appropriate under the circumstances of the case. When dismissing a
complaint, the Labor Commissioner shall advise the complainant of his
or her right to bring an action in an appropriate court if he or she
disagrees with the determination of the Labor Commissioner, and in
the case of an alleged violation of Section 6310 or 6311, to file a
complaint against the state program with the United States Department
of Labor.
(2) The filing of a timely complaint against the state program
with the United States Department of Labor shall stay the Labor
Commissioner's dismissal of the division complaint until the United
States Secretary of Labor makes a determination regarding the alleged
violation. Within 15 days of receipt of that determination, the
Labor Commissioner shall notify the parties whether he or she will
reopen the complaint filed with the division or whether he or she
will reaffirm the dismissal.
(e) The Labor Commissioner shall notify the complainant and
respondent of his or her determination under subdivision (c) or
paragraph (1) of subdivision (d), not later than 60 days after the
filing of the complaint. Determinations by the Labor Commissioner
under subdivision (c) or (d) may be appealed by the complainant or
respondent to the Director of Industrial Relations within 10 days
following notification of the Labor Commissioner's determination.
The appeal shall set forth specifically and in full detail the
grounds upon which the appealing party considers the Labor
Commissioner's determination to be unjust or unlawful, and every
issue to be considered by the director. The director may consider
any issue relating to the initial determination and may modify,
affirm, or reverse the Labor Commissioner's determination. The
director's determination shall be the determination of the Labor
Commissioner. The director shall notify the complainant and
respondent of his or her determination within 10 days of receipt of
the appeal.
(f) The rights and remedies provided by this section do not
preclude an employee from pursuing any other rights and remedies
under any other law.
SEC. 159. Section 230.1 of the Labor Code is amended to read:
230.1. (a) In addition to the requirements and prohibitions
imposed on employees pursuant to Section 230, an employer with 25 or
more employees may not discharge or in any manner discriminate or
retaliate against an employee who is a victim of domestic violence as
defined in Section 6211 of the Family Code for taking time off from
work to attend to any of the following:
(1) To seek medical attention for injuries caused by domestic
violence.
(2) To obtain services from a domestic violence shelter, program,
or rape crisis center as a result of domestic violence.
(3) To obtain psychological counseling related to an experience of
domestic violence.
(4) To participate in safety planning and take other actions to
increase safety from future domestic violence, including temporary or
permanent relocation.
(b) (1) As a condition of taking time off for a purpose set forth
in subdivision (a), the employee shall give the employer reasonable
advance notice of the employee's intention to take time off, unless
the advance notice is not feasible.
(2) When an unscheduled absence occurs, the employer shall not
take any action against the employee if the employee, within a
reasonable time after the absence, provides a certification to the
employer. Certification shall be sufficient in the form of any of
the following:
(A) A police report indicating that the employee was a victim of
domestic violence.
(B) A court order protecting or separating the employee from the
perpetrator of an act of domestic violence, or other evidence from
the court or prosecuting attorney that the employee appeared in
court.
(C) Documentation from a medical professional, domestic violence
advocate, health care provider, or counselor that the employee was
undergoing treatment for physical or mental injuries or abuse
resulting from victimization from an act of domestic violence.
(3) To the extent allowed by law, employers shall maintain the
confidentiality of any employee requesting leave under subdivision
(a).
(c) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has taken time off for a purpose
set forth in subdivision (a) shall be entitled to reinstatement and
reimbursement for lost wages and work benefits caused by the acts of
the employer. Any employer who willfully refuses to rehire, promote,
or otherwise restore an employee or former employee who has been
determined to be eligible for rehiring or promotion by a grievance
procedure or hearing authorized by law is guilty of a misdemeanor.
(d) (1) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated or
retaliated against in the terms and conditions of employment by his
or her employer because the employee has exercised his or her rights
as set forth in subdivision (a) may file a complaint with the
Division of Labor Standards Enforcement of the Department of
Industrial Relations pursuant to Section 98.7.
(2) Notwithstanding any time limitation in Section 98.7, an
employee filing a complaint with the division based upon a violation
of subdivision (a) shall have one year from the date of occurrence of
the violation to file his or her complaint.
(e) An employee may use vacation, personal leave, or compensatory
time off that is otherwise available to the employee under the
applicable terms of employment, unless otherwise provided by a
collective bargaining agreement, for time taken off for a purpose
specified in subdivision (a). The entitlement of any employee under
this section shall not be diminished by any collective bargaining
agreement term or condition.
(f) This section does not create a right for an employee to take
unpaid leave that exceeds the unpaid leave time allowed under, or is
in addition to the unpaid leave time permitted by, the federal Family
and Medical Leave Act of 1993 (29 U.S.C. Sec. 2601 et seq.).
SEC. 160. Section 1161 of the Labor Code is amended to read:
1161. (a) The Agricultural Employee Relief Fund is hereby created
as a special fund in the State Treasury and is continuously
appropriated to the Agricultural Labor Relations Board for the
purposes specified in subdivision (c). The board shall act as a
trustee of all moneys deposited in the fund.
(b) Any monetary relief ordered by the board pursuant to this part
to be paid by an employer to an employee shall be collected by the
board on behalf of the employee. All monetary relief so collected by
the board shall be remitted to the employee for whom the board
collected the money.
(c) (1) Notwithstanding Section 1519 of the Code of Civil
Procedure, if the board has made a diligent effort to locate an
employee on whose behalf the board has collected monetary relief
pursuant to this part, and is unable to locate the employee or the
lawful representative of the employee for a period of two years after
the date the board collected the monetary relief, the board shall
deposit those moneys in the fund.
(2) Moneys in the fund shall be used by the board to pay employees
the unpaid balance of any monetary relief ordered by the board to be
paid by an employer to an employee. Prior to making any payment
from the fund, the board first shall make a finding that, in an
individual case, the collection of the full amount of the monetary
relief ordered is not possible after reasonable efforts have been
made to collect the balance from the employer.
(d) As used in this section, "fund" means the Agricultural
Employee Relief Fund.
(e) On or before July 1, 2002, the board shall report to the
Legislature on the status of the fund.
SEC. 161. Section 1776 of the Labor Code, as amended by Section 2
of Chapter 804 of the Statutes of 2001, is amended to read:
1776. (a) Each contractor and subcontractor shall keep
accurate payroll records, showing the name, address, social security
number, work classification, straight time and overtime hours worked
each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by him or
her in connection with the public work. Each payroll record shall
contain or be verified by a written declaration that it is made under
penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and
correct.
(2) The employer has complied with the requirements of Sections
1771, 1811, and 1815 for any work performed by his or her employees
on the public works project.
(b) The payroll records enumerated under subdivision (a) shall be
certified and shall be available for inspection at all reasonable
hours at the principal office of the contractor on the following
basis:
(1) A certified copy of an employee's payroll record shall be made
available for inspection or furnished to the employee or his or her
authorized representative on request.
(2) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available for inspection or furnished
upon request to a representative of the body awarding the contract,
the Division of Labor Standards Enforcement, and the Division of
Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available upon request by the public
for inspection or for copies thereof. However, a request by the
public shall be made through either the body awarding the contract,
the Division of Apprenticeship Standards, or the Division of Labor
Standards Enforcement. If the requested payroll records have not
been provided pursuant to paragraph (2), the requesting party shall,
prior to being provided the records, reimburse the costs of
preparation by the contractor, subcontractors, and the entity through
which the request was made. The public shall not be given access to
the records at the principal office of the contractor.
(c) The certified payroll records shall be on forms provided by
the Division of Labor Standards Enforcement or shall contain the same
information as the forms provided by the division.
(d) A contractor or subcontractor shall file a certified copy of
the records enumerated in subdivision (a) with the entity that
requested the records within 10 days after receipt of a written
request.
(e) Any copy of records made available for inspection as copies
and furnished upon request to the public or any public agency by the
awarding body, the Division of Apprenticeship Standards, or the
Division of Labor Standards Enforcement shall be marked or
obliterated to prevent disclosure of an individual's name, address,
and social security number. The name and address of the contractor
awarded the contract or the subcontractor performing the contract
shall not be marked or obliterated. Any copy of records made
available for inspection by, or furnished to, a joint
labor-management committee established pursuant to the federal Labor
Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be
marked or obliterated only to prevent disclosure of an individual's
name and social security number. A joint labor management committee
may maintain an action in a court of competent jurisdiction against
an employer who fails to comply with Section 1774. The court may
award restitution to an employee for unpaid wages and may award the
joint labor management committee reasonable attorney's fees and costs
incurred in maintaining the action. An action under this
subdivision may not be based on the employer's misclassification of
the craft of a worker on its certified payroll records. Nothing in
this subdivision limits any other available remedies for a violation
of this chapter.
(f) The contractor shall inform the body awarding the contract of
the location of the records enumerated under subdivision (a),
including the street address, city, and county, and shall, within
five working days, provide a notice of a change of location and
address.
(g) The contractor or subcontractor shall have 10 days in which to
comply subsequent to receipt of a written notice requesting the
records enumerated in subdivision (a). In the event that the
contractor or subcontractor fails to comply within the 10-day period,
he or she shall, as a penalty to the state or political subdivision
on whose behalf the contract is made or awarded, forfeit twenty-five
dollars ($25) for each calendar day, or portion thereof, for each
worker, until strict compliance is effectuated. Upon the request of
the Division of Apprenticeship Standards or the Division of Labor
Standards Enforcement, these penalties shall be withheld from
progress payments then due. A contractor is not subject to a penalty
assessment pursuant to this section due to the failure of a
subcontractor to comply with this section.
(h) The body awarding the contract shall cause to be inserted in
the contract stipulations to effectuate this section.
(i) The director shall adopt rules consistent 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 (Title 1.8 (commencing with Section 1798) of
Part 4 of Division 3 of the Civil Code) governing the release of
these records, including the establishment of reasonable fees to be
charged for reproducing copies of records required by this section.
(j) This section shall remain in effect only until January 1,
2003, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2003, deletes or extends
that date.
SEC. 162. Section 1776 of the Labor Code, as amended by Section 3
of Chapter 804 of the Statutes of 2001, is amended to read:
1776. (a) Each contractor and subcontractor shall keep an
accurate payroll record, showing the name, address, social security
number, work classification, and straight time and overtime hours
worked each day and week, and the actual per diem wages paid to each
journeyman, apprentice, worker, or other employee employed by him or
her in connection with the public work.
(b) The payroll records enumerated under subdivision (a) shall be
certified and shall be available for inspection at all reasonable
hours at the principal office of the contractor on the following
basis:
(1) A certified copy of an employee's payroll record shall be made
available for inspection or furnished to the employee or his or her
authorized representative on request.
(2) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available for inspection or furnished
upon request to a representative of the body awarding the contract,
the Division of Labor Standards Enforcement, and the Division of
Apprenticeship Standards of the Department of Industrial Relations.
(3) A certified copy of all payroll records enumerated in
subdivision (a) shall be made available upon request by the public
for inspection or for copies thereof. However, a request by the
public shall be made through either the body awarding the contract,
the Division of Apprenticeship Standards, or the Division of Labor
Standards Enforcement. If the requested payroll records have not
been provided pursuant to paragraph (2), the requesting party shall,
prior to being provided the records, reimburse the costs of
preparation by the contractor, subcontractors, and the entity through
which the request was made. The public shall not be given access to
the records at the principal office of the contractor.
(c) The certified payroll records shall be on forms provided by
the Division of Labor Standards Enforcement or shall contain the same
information as the forms provided by the division.
(d) Each contractor shall file a certified copy of the records
enumerated in subdivision (a) with the entity that requested the
records within 10 days after receipt of a written request.
(e) Any copy of records made available for inspection as copies
and furnished upon request to the public or any public agency by the
awarding body, the Division of Apprenticeship Standards, or the
Division of Labor Standards Enforcement shall be marked or
obliterated to prevent disclosure of an individual's name, address,
and social security number. The name and address of the contractor
awarded the contract or performing the contract shall not be marked
or obliterated. Any copy of records made available for inspection
by, or furnished to, a joint labor-management committee established
pursuant to the federal Labor Management Cooperation Act of 1978 (29
U.S.C. Sec. 175a) shall be marked or obliterated only to prevent
disclosure of an individual's social security number.
(f) The contractor shall inform the body awarding the contract of
the location of the records enumerated under subdivision (a),
including the street address, city, and county, and shall, within
five working days, provide a notice of a change of location and
address.
(g) The contractor shall have 10 days in which to comply
subsequent to receipt of written notice specifying in what respects
the contractor must comply with this section. In the event that the
contractor fails to comply within the 10-day period, he or she shall,
as a penalty to the state or political subdivision on whose behalf
the contract is made or awarded, forfeit twenty-five dollars ($25)
for each calendar day, or portion thereof, for each worker, until
strict compliance is effectuated. Upon the request of the Division
of Apprenticeship Standards or the Division of Labor Standards
Enforcement, these penalties shall be withheld from progress payments
then due.
(h) The body awarding the contract shall cause to be inserted in
the contract stipulations to effectuate this section. These
stipulations shall fix the responsibility for compliance with this
section on the prime contractor.
(i) The director shall adopt rules consistent 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 (Title 1.8 (commencing with Section 1798) of
Part 4 of Division 3 of the Civil Code) governing the release of
these records, including the establishment of reasonable fees to be
charged for reproducing copies of records required by this section.
(j) This section shall become operative January 1, 2003.
SEC. 162.5. Section 2695.1 of the Labor Code is amended to read:
2695.1. (a) In enacting this legislation, it is the intent of the
Legislature to codify certain labor protections that should be
afforded to sheepherders, as defined. The provisions of this section
are in addition to, and are entirely independent from, any other
statutory or legal protections, rights, or remedies that are or may
be available under this code or any other state law or regulation to
sheepherders either as individuals, employees, or persons.
(b) All terms used in this section and in Section 2695.2 have the
meanings assigned to them by this code or any other state law or
regulation.
SEC. 163. Section 2695.2 of the Labor Code is amended to read:
2695.2. (a) (1) For a sheepherder employed on a regularly
scheduled 24-hour shift on a seven-day-a-week "on-call" basis, an
employer may, as an alternative to paying the minimum wage for all
hours worked, instead pay no less than the monthly minimum wage
adopted by the Industrial Welfare Commission on April 24, 2001. Any
sheepherder who performs nonsheepherding, nonagricultural work on any
workday shall be fully covered for that workweek by the provisions
of any applicable laws or regulations relating to that work.
(2) After July 1, 2002, the amount of the monthly minimum wage
permitted under paragraph (1) shall be increased each time that the
state minimum wage is increased and shall become effective on the
same date as any increase in the state minimum wage. The amount of
the increase shall be determined by calculating the percentage
increase of the new rate over the previous rate, and then by applying
the same percentage increase to the minimum monthly wage rate.
(b) (1) When tools or equipment are required by the employer or
are necessary to the performance of a job, the tools and equipment
shall be provided and maintained by the employer, except that a
sheepherder whose wages are at least two times the minimum wage
provided herein, or if paid on a monthly basis, at least two times
the monthly minimum wage, may be required to provide and maintain
handtools and equipment customarily required by the trade or craft.
(2) A reasonable deposit may be required as security for the
return of the items furnished by the employer under provisions of
paragraph (1) upon issuance of a receipt to the sheepherder for the
deposit. The deposits shall be made pursuant to Article 2
(commencing with Section 400) of Chapter 3. Alternatively, with the
prior written authorization of the sheepherder, an employer may
deduct from the sheepherder's last check the cost of any item
furnished pursuant to paragraph (1) when the item is not returned.
No deduction shall be made at any time for normal wear and tear. All
items furnished by the employer shall be returned by the sheepherder
upon completion of the job.
(c) No employer of sheepherders shall employ a sheepherder for a
work period of more than five hours without a meal period of no less
than 30 minutes, except that when a work period of not more than six
hours will complete a day's work, the meal period may be waived by
the mutual consent of the employer and the sheepherder. An employer
may be relieved of this obligation if a meal period of 30 minutes
cannot reasonably be provided because no one is available to relieve
a sheepherder tending flock alone on that day. Where a meal period
of 30 minutes can be provided but not without interruption, a
sheepherder shall be allowed to complete the meal period during that
day.
(d) To the extent practicable, every employer shall authorize and
permit all sheepherders to take rest periods. The rest period,
insofar as is practicable, shall be in the middle of each work
period. The authorized rest times shall be based on the total hours
worked daily at the rate of 10 minutes net rest time per four hours,
or major fraction thereof, of work. However, a rest period need not
be authorized for sheepherders whose total daily worktime is less
than three and one-half hours.
(e) When the nature of the work reasonably permits the use of
seats, suitable seats shall be provided for sheepherders working on
or at a machine.
(f) After January 1, 2003, during times when a sheepherder is
lodged in mobile housing units where it is feasible to provide
lodging that meets the minimum standards established by this section
because there is practicable access for mobile housing units, the
lodging provided shall include at a minimum all of the following:
(1) Toilets and bathing facilities, which may include portable
toilets and portable shower facilities.
(2) Heating.
(3) Inside lighting.
(4) Potable hot and cold water.
(5) Adequate cooking facilities and utensils.
(6) A working refrigerator, which may include a butane or propane
gas refrigerator, or for no more than a one-week period during which
a nonworking refrigerator is repaired or replaced, a means of
refrigerating perishable food items, which may include ice chests,
provided that ice is delivered to the sheepherder, as needed, to
maintain a continuous temperature required to retard spoilage and
ensure food safety.
(g) After January 1, 2003, all sheepherders shall be provided with
all of the following at each worksite:
(1) Regular mail service.
(2) A means of communication through telephone or radio solely for
use in a medical emergency affecting the sheepherder or for an
emergency relating to the herding operation. If the means of
communication is provided by telephone, the sheepherder may be
charged for the actual cost of nonemergency telephone use. Nothing
in this subdivision shall preclude an employer from providing
additional means of communication to the sheepherder which are
appropriate because telephones or radios are out of range or
otherwise inoperable.
(3) Visitor access to the housing.
(4) Upon request and to the extent practicable, access to
transportation to and from the nearest locale where shopping,
medical, or cultural facilities and services are available on a
weekly basis.
(h) In addition to any other civil penalties provided by law, any
employer or any other person acting on behalf of the employer who
violates or causes to be violated the provisions of this section
shall be subject to a civil penalty, as follows:
(1) For the initial violation, fifty dollars ($50) for each
underpaid employee for each pay period during which the employee was
underpaid, plus an amount sufficient to recover the unpaid wages.
(2) For any subsequent violation, one hundred dollars ($100) for
each underpaid employee for each pay period during which the employee
was underpaid, plus an amount sufficient to recover the unpaid
wages.
(3) The affected employee shall receive payment of all wages
recovered.
(i) If the application of any provision of any subdivision,
sentence, clause, phrase, word, or portion of this legislation is
held invalid, unconstitutional, unauthorized, or prohibited by
statute, the remaining provisions thereof shall not be affected and
shall continue to be given full force and effect as if the part held
invalid or unconstitutional had not been included.
(j) Every employer of sheepherders shall post a copy of this part
in an area frequented by sheepherders where it may be easily read
during the workday. Where the location of work or other conditions
make posting impractical, every employer shall make a copy of this
part available to sheepherders upon request. Copies of this part
shall be posted and made available in a language understood by the
sheepherder. An employer is deemed to have complied with this
subdivision if he or she posts where practical, or makes available
upon request where posting is impractical, a copy of the Industrial
Welfare Commission Order 14-2001, as adopted on April 24, 2001,
relating to sheepherders, provided that the posted material includes
a sufficient summary of each of the provisions of this part.
SEC. 164. Section 3212 of the Labor Code is amended to read:
3212. In the case of members of a sheriff's office or the
California Highway Patrol, district attorney's staff of inspectors
and investigators or of police or fire departments of cities,
counties, cities and counties, districts or other public or municipal
corporations or political subdivisions, whether those members are
volunteer, partly paid, or fully paid, and in the case of active
firefighting members of the Department of Forestry and Fire
Protection whose duties require firefighting or of any county
forestry or firefighting department or unit, whether voluntary, fully
paid, or partly paid, and in the case of members of the warden
service of the Wildlife Protection Branch of the Department of Fish
and Game whose principal duties consist of active law enforcement
service, excepting those whose principal duties are clerical or
otherwise do not clearly fall within the scope of active law
enforcement service such as stenographers, telephone operators, and
other officeworkers, the term "injury" as used in this act includes
hernia when any part of the hernia develops or manifests itself
during a period while the member is in the service in the office,
staff, division, department, or unit, and in the case of members of
fire departments, except those whose principal duties are clerical,
such as stenographers, telephone operators, and other officeworkers,
and in the case of county forestry or firefighting departments,
except those whose principal duties are clerical, such as
stenographers, telephone operators, and other officeworkers, and in
the case of active firefighting members of the Department of Forestry
and Fire Protection whose duties require firefighting, and in the
case of members of the warden service of the Wildlife Protection
Branch of the Department of Fish and Game whose principal duties
consist of active law enforcement service, excepting those whose
principal duties are clerical or otherwise do not clearly fall within
the scope of active law enforcement service such as stenographers,
telephone operators, and other officeworkers, the term "injury"
includes pneumonia and heart trouble that develops or manifests
itself during a period while the member is in the service of the
office, staff, department, or unit. In the case of regular salaried
county or city and county peace officers, the term "injury" also
includes any hernia that manifests itself or develops during a period
while the officer is in the service. The compensation that is
awarded for the hernia, heart trouble, or pneumonia shall include
full hospital, surgical, medical treatment, disability indemnity, and
death benefits, as provided by the workers' compensation laws of
this state.
The hernia, heart trouble, or pneumonia so developing or
manifesting itself in those cases shall be presumed to arise out of
and in the course of the employment. This presumption is disputable
and may be controverted by other evidence, but unless so
controverted, the appeals board is bound to find in accordance with
it. The presumption shall be extended to a member following
termination of service for a period of three calendar months for each
full year of the requisite service, but not to exceed 60 months in
any circumstance, commencing with the last date actually worked in
the specified capacity.
The hernia, heart trouble, or pneumonia so developing or
manifesting itself in those cases shall in no case be attributed to
any disease existing prior to that development or manifestation.
SEC. 165. Section 3212.10 of the Labor Code is amended to read:
3212.10. In the case of a peace officer of the Department of
Corrections who has custodial or supervisory duties of inmates or
parolees, or a peace officer of the Department of the Youth Authority
who has custodial or supervisory duties of wards or parolees, or a
peace officer as defined in Section 830.5 of the Penal Code and
employed by a local agency, the term "injury" as used in this
division includes heart trouble, pneumonia, tuberculosis, and
meningitis that develops or manifests itself during a period in which
any peace officer covered under this section is in the service of
the department or unit. The compensation that is awarded for that
injury shall include full hospital, surgical, medical treatment,
disability indemnity, and death benefits as provided by the
provisions of this division.
The heart trouble, pneumonia, tuberculosis, and meningitis so
developing or manifesting itself shall be presumed to arise out of
and in the course of employment. This presumption is disputable and
may be controverted by other evidence, but unless so controverted,
the appeals board is bound to find in accordance with it. This
presumption shall be extended to a member following termination of
service for a period of three calendar months for each full year of
requisite service, but not to exceed 60 months in any circumstance,
commencing with the last date actually worked in the specified
capacity.
SEC. 166. Section 9102 of the Labor Code is amended to read:
9102. (a) The owner, manager, or operator of a working warehouse
shall secure merchandise stored on shelves higher than 12 feet above
the sales floor. Methods of securing merchandise shall include
rails, fencing, netting, security doors, gates, cables, or the
binding of items on a pallet into one unit by shrink-wrapping, metal
or plastic banding, or by tying items together with a cord.
(b) All working warehouses shall comply with the provisions of
this section on or before July 1, 2002.
SEC. 167. Section 9103 of the Labor Code is amended to read:
9103. (a) When heavy machinery is used to move merchandise from a
shelf, there shall be a safety zone established to temporarily block
customers from entering areas where merchandise could fall during
removal from a shelf.
(b) All working warehouses shall comply with the provisions of
this section on or before July 1, 2002.
SEC. 168. Section 1011 of the Military and Veterans Code is
amended to read:
1011. (a) There is in the department a Veterans' Home of
California, Yountville, situated at Veterans' Home, Napa County.
(b) (1) The department may establish and construct a second home
that shall be situated in the County of Imperial, Los Angeles,
Orange, Riverside, San Bernardino, San Diego, or Ventura. The home
may be located on one or more sites. The department shall operate
the second home concurrently with the first home.
(2) The initial site is the Veterans' Home of California, Barstow,
situated in Barstow, San Bernardino County. That site may provide
skilled nursing care for up to 250 residents.
(3) When completed, the second site shall be the Veterans' Home of
California, Chula Vista, situated in Chula Vista, San Diego County,
pursuant to the recommendations made by the commission established
pursuant to Section 1011.5.
(4) When completed, the third site shall be the Veterans' Home of
California, Lancaster, situated in Lancaster, Los Angeles County,
pursuant to the recommendations made by the commission established
pursuant to Section 1011.5.
(5) When completed, the fourth site shall be the Veterans' Home of
California, Ventura, situated in the community of Saticoy, Ventura
County.
(6) There shall be an administrator for, and located at, each site
of the southern California home.
(7) The department may complete any preapplication process
necessary with the United States Department of Veterans Affairs for
construction of the second home.
(c) The Legislature hereby finds and declares that the second home
is a new state function. The department may perform any or all work
in operating the second home by independent contractors, except the
overall administration and management of the home. Any and all
actions of the department taken before September 17, 1996, that are
consistent with this subdivision are hereby ratified and confirmed,
it having at all times been the intent of the Legislature that the
department be so
authorized.
SEC. 169. Section 68 of the Penal Code is amended to read:
68. (a) Every executive or ministerial officer, employee, or
appointee of the State of California, a county or city therein, or a
political subdivision thereof, who asks, receives, or agrees to
receive, any bribe, upon any agreement or understanding that his or
her vote, opinion, or action upon any matter then pending, or that
may be brought before him or her in his or her official capacity,
shall be influenced thereby, is punishable by imprisonment in the
state prison for two, three, or four years and, in cases in which no
bribe has been actually received, by a restitution fine of not less
than two thousand dollars ($2,000) or not more than ten thousand
dollars ($10,000) or, in cases in which a bribe was actually
received, by a restitution fine of at least the actual amount of the
bribe received or two thousand dollars ($2,000), whichever is
greater, or any larger amount of not more than double the amount of
any bribe received or ten thousand dollars ($10,000), whichever is
greater, and, in addition thereto, forfeits his or her office,
employment, or appointment, and is forever disqualified from holding
any office, employment, or appointment, in this state.
(b) In imposing a restitution fine pursuant to this section, the
court shall consider the defendant's ability to pay the fine.
SEC. 170. Section 86 of the Penal Code is amended to read:
86. Every member of either of the houses composing the
Legislature of this state who asks, receives, or agrees to receive,
any bribe, upon any understanding that his or her official vote,
opinion, judgment, or action shall be influenced thereby, or shall
give, in any particular manner, or upon any particular side of any
question or matter upon which he or she may be required to act in his
or her official capacity, or gives, or offers or promises to give,
any official vote in consideration that another Member of the
Legislature shall give this vote either upon the same or another
question, is punishable by imprisonment in the state prison for two,
three, or four years and, in cases in which no bribe has been
actually received, by a restitution fine of not less than two
thousand dollars ($2,000) or not more than ten thousand dollars
($10,000) or, in cases in which a bribe was actually received, by a
restitution fine of at least the actual amount of the bribe received
or two thousand dollars ($2,000), whichever is greater, or any larger
amount of not more than double the amount of any bribe received or
ten thousand dollars ($10,000), whichever is greater.
In imposing a fine under this section, the court shall consider
the defendant's ability to pay the fine.
SEC. 171. Section 290 of the Penal Code is amended to read:
290. (a) (1) (A) Every person described in paragraph (2), for the
rest of his or her life while residing in, or, if he or she has no
residence, while located within California, or while attending school
or working in California, as described in subparagraph (G), shall be
required to register with the chief of police of the city in which
he or she is residing, or if he or she has no residence, is located,
or the sheriff of the county if he or she is residing, or if he or
she has no residence, is located, in an unincorporated area or city
that has no police department, and, additionally, with the chief of
police of a campus of the University of California, the California
State University, or community college if he or she is residing, or
if he or she has no residence, is located upon the campus or in any
of its facilities, within five working days of coming into, or
changing his or her residence or location within, any city, county,
or city and county, or campus in which he or she temporarily resides,
or, if he or she has no residence, is located.
(B) If the person who is registering has more than one residence
address or location at which he or she regularly resides or is
located, he or she shall register in accordance with subparagraph (A)
in each of the jurisdictions in which he or she regularly resides or
is located. If all of the addresses or locations are within the
same jurisdiction, the person shall provide the registering authority
with all of the addresses or locations where he or she regularly
resides or is located.
(C) If the person who is registering has no residence address, he
or she shall update his or her registration no less than once every
60 days in addition to the requirement in subparagraph (A), on a form
as may be required by the Department of Justice, with the entity or
entities described in subparagraph (A) in whose jurisdiction he or
she is located at the time he or she is updating the registration.
It is the intent of the Legislature that efforts be made with respect
to persons who are subject to this subparagraph who are on probation
or parole to engage them in treatment.
(D) Beginning on his or her first birthday following registration
or change of address, the person shall be required to register
annually, within five working days of his or her birthday, to update
his or her registration with the entities described in subparagraph
(A). At the annual update, the person shall provide current
information as required on the Department of Justice annual update
form, including the information described in subparagraphs (A) to
(C), inclusive, of paragraph (2) of subdivision (e).
(E) In addition, every person who has ever been adjudicated a
sexually violent predator, as defined in Section 6600 of the Welfare
and Institutions Code, shall, after his or her release from custody,
verify his or her address no less than once every 90 days and place
of employment, including the name and address of the employer, in a
manner established by the Department of Justice.
(F) No entity shall require a person to pay a fee to register or
update his or her registration pursuant to this section. The
registering agency shall submit registrations, including annual
updates or changes of address, directly into the Department of
Justice Violent Crime Information Network (VCIN).
(G) Persons required to register in their state of residence who
are out-of-state residents employed, or carrying on a vocation in
California on a full-time or part-time basis, with or without
compensation, for more than 14 days, or for an aggregate period
exceeding 30 days in a calendar year, shall register in accordance
with subparagraph (A). Persons described in paragraph (2) who are
out-of-state residents enrolled in any educational institution in
California, as defined in Section 22129 of the Education Code, on a
full-time or part-time basis, shall register in accordance with
subparagraph (A). The place where the out-of-state resident is
located, for purposes of registration, shall be the place where the
person is employed, carrying on a vocation, or attending school. The
out-of-state resident subject to this subparagraph shall, in
addition to the information required pursuant to subdivision (e),
provide the registering authority with the name of his or her place
of employment or the name of the school attended in California, and
his or her address or location in his or her state of residence. The
registration requirement for persons subject to this subparagraph
shall become operative on November 25, 2000. The terms "employed or
carries on a vocation" include employment whether or not financially
compensated, volunteered, or performed for government or educational
benefit.
(2) The following persons shall be required to register pursuant
to paragraph (1):
(A) Any person who, since July 1, 1944, has been or is hereafter
convicted in any court in this state or in any federal or military
court of a violation of Section 207 or 209 committed with intent to
violate Section 261, 286, 288, 288a, or 289, Section 220, except
assault to commit mayhem, Section 243.4, paragraph (1), (2), (3),
(4), or (6) of subdivision (a) of Section 261, or paragraph (1) of
subdivision (a) of Section 262 involving the use of force or violence
for which the person is sentenced to the state prison, Section
264.1, 266, 266c, subdivision (b) of Section 266h, subdivision (b) of
Section 266i, 266j, 267, 269, 285, 286, 288, 288a, 288.5, or 289,
subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4,
311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of
Section 653f, subdivision 1 or 2 of Section 314, any offense
involving lewd or lascivious conduct under Section 272, or any felony
violation of Section 288.2; or any person who since that date has
been or is hereafter convicted of the attempt to commit any of the
above-mentioned offenses.
(B) Any person who, since July 1, 1944, has been or hereafter is
released, discharged, or paroled from a penal institution where he or
she was confined because of the commission or attempted commission
of one of the offenses described in subparagraph (A).
(C) Any person who, since July 1, 1944, has been or hereafter is
determined to be a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code or any person who has been found
guilty in the guilt phase of a trial for an offense for which
registration is required by this section but who has been found not
guilty by reason of insanity in the sanity phase of the trial.
(D) Any person who, since July 1, 1944, has been, or is hereafter
convicted in any other court, including any state, federal, or
military court, of any offense that, if committed or attempted in
this state, would have been punishable as one or more of the offenses
described in subparagraph (A) or any person ordered by any other
court, including any state, federal, or military court, to register
as a sex offender for any offense, if the court found at the time of
conviction or sentencing that the person committed the offense as a
result of sexual compulsion or for purposes of sexual gratification.
(E) Any person ordered by any court to register pursuant to this
section for any offense not included specifically in this section if
the court finds at the time of conviction or sentencing that the
person committed the offense as a result of sexual compulsion or for
purposes of sexual gratification. The court shall state on the
record the reasons for its findings and the reasons for requiring
registration.
(F) (i) Notwithstanding any other subdivision, a person who was
convicted before January 1, 1976, under subdivision (a) of Section
286, or Section 288a, shall not be required to register pursuant to
this section for that conviction if the conviction was for conduct
between consenting adults that was decriminalized by Chapter 71 of
the Statutes of 1975 or Chapter 1139 of the Statutes of 1976. The
Department of Justice shall remove that person from the Sex Offender
Registry, and the person is discharged from his or her duty to
register pursuant to the following procedure:
(I) The person submits to the Department of Justice official
documentary evidence, including court records or police reports, that
demonstrate that the person's conviction pursuant to either of those
sections was for conduct between consenting adults that was
decriminalized; or
(II) The person submits to the department a declaration stating
that the person's conviction pursuant to either of those sections was
for consensual conduct between adults that has been decriminalized.
The declaration shall be confidential and not a public record, and
shall include the person's name, address, telephone number, date of
birth, and a summary of the circumstances leading to the conviction,
including the date of the conviction and county of the occurrence.
(III) The department shall determine whether the person's
conviction was for conduct between consensual adults that has been
decriminalized. If the conviction was for consensual conduct between
adults that has been decriminalized, and the person has no other
offenses for which he or she is required to register pursuant to this
section, the department shall, within 60 days of receipt of those
documents, notify the person that he or she is relieved of the duty
to register, and shall notify the local law enforcement agency with
which the person is registered that he or she has been relieved of
the duty to register. The local law enforcement agency shall remove
the person's registration from its files within 30 days of receipt of
notification. If the documentary or other evidence submitted is
insufficient to establish the person's claim, the department shall,
within 60 days of receipt of those documents, notify the person that
his or her claim cannot be established, and that the person shall
continue to register pursuant to this section. The department shall
provide, upon the person's request, any information relied upon by
the department in making its determination that the person shall
continue to register pursuant to this section. Any person whose
claim has been denied by the department pursuant to this clause may
petition the court to appeal the department's denial of the person's
claim.
(ii) On or before July 1, 1998, the department shall make a report
to the Legislature concerning the status of persons who may come
under the provisions of this subparagraph, including the number of
persons who were convicted before January 1, 1976, under subdivision
(a) of Section 286 or Section 288a and are required to register under
this section, the average age of these persons, the number of these
persons who have any subsequent convictions for a registerable sex
offense, and the number of these persons who have sought successfully
or unsuccessfully to be relieved of their duty to register under
this section.
(b) (1) Any person who is released, discharged, or paroled from a
jail, state or federal prison, school, road camp, or other
institution where he or she was confined because of the commission or
attempted commission of one of the offenses specified in subdivision
(a) or is released from a state hospital to which he or she was
committed as a mentally disordered sex offender under Article 1
(commencing with Section 6300) of Chapter 2 of Part 2 of Division 6
of the Welfare and Institutions Code, shall, prior to discharge,
parole, or release, be informed of his or her duty to register under
this section by the official in charge of the place of confinement or
hospital, and the official shall require the person to read and sign
any form that may be required by the Department of Justice, stating
that the duty of the person to register under this section has been
explained to the person. The official in charge of the place of
confinement or hospital shall obtain the address where the person
expects to reside upon his or her discharge, parole, or release and
shall report the address to the Department of Justice. The official
shall at the same time forward a current photograph of the person to
the Department of Justice.
(2) The official in charge of the place of confinement or hospital
shall give one copy of the form to the person and shall send one
copy to the Department of Justice and one copy to the appropriate law
enforcement agency or agencies having jurisdiction over the place
the person expects to reside upon discharge, parole, or release. If
the conviction that makes the person subject to this section is a
felony conviction, the official in charge shall, not later than 45
days prior to the scheduled release of the person, send one copy to
the appropriate law enforcement agency or agencies having local
jurisdiction where the person expects to reside upon discharge,
parole, or release; one copy to the prosecuting agency that
prosecuted the person; and one copy to the Department of Justice.
The official in charge of the place of confinement or hospital shall
retain one copy.
(c) (1) Any person who is convicted in this state of the
commission or attempted commission of any of the offenses specified
in subdivision (a) and who is released on probation, shall, prior to
release or discharge, be informed of the duty to register under this
section by the probation department, and a probation officer shall
require the person to read and sign any form that may be required by
the Department of Justice, stating that the duty of the person to
register under this section has been explained to him or her. The
probation officer shall obtain the address where the person expects
to reside upon release or discharge and shall report within three
days the address to the Department of Justice. The probation officer
shall give one copy of the form to the person, send one copy to the
Department of Justice, and forward one copy to the appropriate law
enforcement agency or agencies having local jurisdiction where the
person expects to reside upon his or her discharge, parole, or
release.
(2) Any person who is convicted in this state of the commission or
attempted commission of any of the offenses specified in subdivision
(a) and who is granted conditional release without supervised
probation, or discharged upon payment of a fine, shall, prior to
release or discharge, be informed of the duty to register under this
section in open court by the court in which the person has been
convicted, and the court shall require the person to read and sign
any form that may be required by the Department of Justice, stating
that the duty of the person to register under this section has been
explained to him or her. If the court finds that it is in the
interest of the efficiency of the court, the court may assign the
bailiff to require the person to read and sign forms under this
section. The court shall obtain the address where the person expects
to reside upon release or discharge and shall report within three
days the address to the Department of Justice. The court shall give
one copy of the form to the person, send one copy to the Department
of Justice, and forward one copy to the appropriate law enforcement
agency or agencies having local jurisdiction where the person expects
to reside upon his or her discharge, parole, or release.
(d) (1) Any person who, on or after January 1, 1986, is discharged
or paroled from the Department of the Youth Authority to the custody
of which he or she was committed after having been adjudicated a
ward of the juvenile court pursuant to Section 602 of the Welfare and
Institutions Code because of the commission or attempted commission
of any offense described in paragraph (3) shall be subject to
registration under the procedures of this section.
(2) Any person who is discharged or paroled from a facility in
another state that is equivalent to the Department of the Youth
Authority, to the custody of which he or she was committed because of
an offense which, if committed or attempted in this state, would
have been punishable as one or more of the offenses described in
paragraph (3), shall be subject to registration under the procedures
of this section.
(3) Any person described in this subdivision who committed an
offense in violation of any of the following provisions shall be
required to register pursuant to this section:
(A) Assault with intent to commit rape, sodomy, oral copulation,
or any violation of Section 264.1, 288, or 289 under Section 220.
(B) Any offense defined in paragraph (1), (2), (3), (4), or (6) of
subdivision (a) of Section 261, Section 264.1, 266c, or 267,
paragraph (1) of subdivision (b) of, or subdivision (c) or (d) of,
Section 286, Section 288 or 288.5, paragraph (1) of subdivision (b)
of, or subdivision (c) or (d) of, Section 288a, subdivision (a) of
Section 289, or Section 647.6.
(C) A violation of Section 207 or 209 committed with the intent to
violate Section 261, 286, 288, 288a, or 289.
(4) Prior to discharge or parole from the Department of the Youth
Authority, any person who is subject to registration under this
subdivision shall be informed of the duty to register under the
procedures set forth in this section. Department of the Youth
Authority officials shall transmit the required forms and information
to the Department of Justice.
(5) All records specifically relating to the registration in the
custody of the Department of Justice, law enforcement agencies, and
other agencies or public officials shall be destroyed when the person
who is required to register has his or her records sealed under the
procedures set forth in Section 781 of the Welfare and Institutions
Code. This subdivision shall not be construed as requiring the
destruction of other criminal offender or juvenile records relating
to the case that are maintained by the Department of Justice, law
enforcement agencies, the juvenile court, or other agencies and
public officials unless ordered by a court under Section 781 of the
Welfare and Institutions Code.
(e) (1) On or after January 1, 1998, upon incarceration,
placement, or commitment, or prior to release on probation, any
person who is required to register under this section shall
preregister. The preregistering official shall be the admitting
officer at the place of incarceration, placement, or commitment, or
the probation officer if the person is to be released on probation.
The preregistration shall consist of all of the following:
(A) A preregistration statement in writing, signed by the person,
giving information that shall be required by the Department of
Justice.
(B) The fingerprints and a current photograph of the person.
(C) Any person who is preregistered pursuant to this subdivision
is required to be preregistered only once.
(2) A person described in paragraph (2) of subdivision (a) shall
register, or reregister if the person has previously registered, upon
release from incarceration, placement, or commitment, pursuant to
paragraph (1) of subdivision (a). The registration shall consist of
all of the following:
(A) A statement in writing signed by the person, giving
information as shall be required by the Department of Justice and
giving the name and address of the person's employer, and the address
of the person's place of employment if that is different from the
employer's main address.
(B) The fingerprints and a current photograph of the person taken
by the registering official.
(C) The license plate number of any vehicle owned by, regularly
driven by, or registered in the name of the person.
(D) Notice to the person that, in addition to the requirements of
paragraph (4), he or she may have a duty to register in any other
state where he or she may relocate.
(E) Copies of adequate proof of residence, which shall be limited
to a California driver's license, California identification card,
recent rent or utility receipt, printed personalized checks or other
recent banking documents showing that person's name and address, or
any other information that the registering official believes is
reliable. If the person has no residence and no reasonable
expectation of obtaining a residence in the foreseeable future, the
person shall so advise the registering official and shall sign a
statement provided by the registering official stating that fact.
Upon presentation of proof of residence to the registering official
or a signed statement that the person has no residence, the person
shall be allowed to register. If the person claims that he or she
has a residence but does not have any proof of residence, he or she
shall be allowed to register but shall furnish proof of residence
within 30 days of the day he or she is allowed to register.
(3) Within three days thereafter, the preregistering official or
the registering law enforcement agency or agencies shall forward the
statement, fingerprints, photograph, and vehicle license plate
number, if any, to the Department of Justice.
(f) (1) If any person who is required to register pursuant to this
section changes his or her residence address or location, whether
within the jurisdiction in which he or she is currently registered or
to a new jurisdiction inside or outside the state, the person shall
inform, in writing within five working days, the law enforcement
agency or agencies with which he or she last registered of the new
address or location. The law enforcement agency or agencies shall,
within three days after receipt of this information, forward a copy
of the change of address or location information to the Department of
Justice. The Department of Justice shall forward appropriate
registration data to the law enforcement agency or agencies having
local jurisdiction of the new place of residence or location.
(2) If the person's new address is in a Department of the Youth
Authority facility or a state prison or state mental institution, an
official of the place of incarceration, placement, or commitment
shall, within 90 days of receipt of the person, forward the
registrant's change of address information to the Department of
Justice. The agency need not provide a physical address for the
registrant but shall indicate that he or she is serving a period of
incarceration or commitment in a facility under the agency's
jurisdiction. This paragraph shall apply to persons received in a
Department of the Youth Authority facility or a state prison or state
mental institution on or after January 1, 1999. The Department of
Justice shall forward the change of address information to the agency
with which the person last registered.
(3) If any person who is required to register pursuant to this
section changes his or her name, the person shall inform, in person,
the law enforcement agency or agencies with which he or she is
currently registered within five working days. The law enforcement
agency or agencies shall forward a copy of this information to the
Department of Justice within three days of its receipt.
(g) (1) Any person who is required to register under this section
based on a misdemeanor conviction or juvenile adjudication who
willfully violates any requirement of this section is guilty of a
misdemeanor punishable by imprisonment in a county jail not exceeding
one year.
(2) Except as provided in paragraphs (5) and (7), any person who
is required to register under this section based on a felony
conviction or juvenile adjudication who willfully violates any
requirement of this section or who has a prior conviction or juvenile
adjudication for the offense of failing to register under this
section and who subsequently and willfully violates any requirement
of this section is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
If
probation is granted or if the imposition or execution of sentence is
suspended, it shall be a condition of the probation or suspension
that the person serve at least 90 days in a county jail. The penalty
described in this paragraph shall apply whether or not the person
has been released on parole or has been discharged from parole.
(3) Any person determined to be a mentally disordered sex offender
or who has been found guilty in the guilt phase of trial for an
offense for which registration is required under this section, but
who has been found not guilty by reason of insanity in the sanity
phase of the trial, or who has had a petition sustained in a juvenile
adjudication for an offense for which registration is required under
this section pursuant to subdivision (d), but who has been found not
guilty by reason of insanity, who willfully violates any requirement
of this section is guilty of a misdemeanor and shall be punished by
imprisonment in a county jail not exceeding one year. For any second
or subsequent willful violation of any requirement of this section,
the person is guilty of a felony and shall be punished by
imprisonment in the state prison for 16 months, or two or three
years.
(4) If, after discharge from parole, the person is convicted of a
felony or suffers a juvenile adjudication as specified in this
subdivision, he or she shall be required to complete parole of at
least one year, in addition to any other punishment imposed under
this subdivision. A person convicted of a felony as specified in
this subdivision may be granted probation only in the unusual case
where the interests of justice would best be served. When probation
is granted under this paragraph, the court shall specify on the
record and shall enter into the minutes the circumstances indicating
that the interests of justice would best be served by the
disposition.
(5) Any person who has ever been adjudicated a sexually violent
predator, as defined in Section 6600 of the Welfare and Institutions
Code, and who fails to verify his or her registration every 90 days
as required pursuant to subparagraph (E) of paragraph (1) of
subdivision (a), shall be punished by imprisonment in the state
prison, or in a county jail not exceeding one year.
(6) Except as otherwise provided in paragraph (5), and in addition
to any other penalty imposed under this subdivision, any person who
is required pursuant to subparagraph (C) of paragraph (1) of
subdivision (a) to update his or her registration every 60 days and
willfully fails to update his or her registration is guilty of a
misdemeanor and shall be punished by imprisonment in a county jail
not exceeding six months. Any subsequent violation of this
requirement that persons described in subparagraph (C) of paragraph
(1) of subdivision (a) shall update their registration every 60 days
is also a misdemeanor and shall be punished by imprisonment in a
county jail not exceeding six months.
(7) Any person who fails to provide proof of residence as required
by subparagraph (E) of paragraph (2) of subdivision (e), regardless
of the offense upon which the duty to register is based, is guilty of
a misdemeanor punishable by imprisonment in a county jail not
exceeding six months.
(8) Any person who is required to register under this section who
willfully violates any requirement of this section is guilty of a
continuing offense.
(h) Whenever any person is released on parole or probation and is
required to register under this section but fails to do so within the
time prescribed, the parole authority, the Youthful Offender Parole
Board, or the court, as the case may be, shall order the parole or
probation of the person revoked. For purposes of this subdivision,
"parole authority" has the same meaning as described in Section 3000.
(i) Except as provided in subdivisions (m) and (n) and Section
290.4, the statements, photographs, and fingerprints required by this
section shall not be open to inspection by the public or by any
person other than a regularly employed peace officer or other law
enforcement officer.
(j) In any case in which a person who would be required to
register pursuant to this section for a felony conviction is to be
temporarily sent outside the institution where he or she is confined
on any assignment within a city or county including firefighting,
disaster control, or of whatever nature the assignment may be, the
local law enforcement agency having jurisdiction over the place or
places where the assignment shall occur shall be notified within a
reasonable time prior to removal from the institution. This
subdivision shall not apply to any person who is temporarily released
under guard from the institution where he or she is confined.
(k) As used in this section, "mentally disordered sex offender"
includes any person who has been determined to be a sexual psychopath
or a mentally disordered sex offender under any provision which, on
or before January 1, 1976, was contained in Division 6 (commencing
with Section 6000) of the Welfare and Institutions Code.
(l) (1) Every person who, prior to January 1, 1997, is required to
register under this section, shall be notified whenever he or she
next reregisters of the reduction of the registration period from 14
to five working days. This notice shall be provided in writing by
the registering agency or agencies. Failure to receive this
notification shall be a defense against the penalties prescribed by
subdivision (g) if the person did register within 14 days.
(2) Every person who, as a sexually violent predator, as defined
in Section 6600 of the Welfare and Institutions Code, is required to
verify his or her registration every 90 days, shall be notified
wherever he or she next registers of his or her increased
registration obligations. This notice shall be provided in writing
by the registering agency or agencies. Failure to receive this
notice shall be a defense against the penalties prescribed by
paragraph (5) of subdivision (g).
(m) (1) When a peace officer reasonably suspects, based on
information that has come to his or her attention through information
provided by any peace officer or member of the public, that a child
or other person may be at risk from a sex offender convicted of a
crime listed in paragraph (1) of subdivision (a) of Section 290.4, a
law enforcement agency may, notwithstanding any other provision of
law, provide any of the information specified in paragraph (4) of
this subdivision about that registered sex offender that the agency
deems relevant and necessary to protect the public, to the following
persons, agencies, or organizations the offender is likely to
encounter, including, but not limited to, the following:
(A) Public and private educational institutions, day care
establishments, and establishments and organizations that primarily
serve individuals likely to be victimized by the offender.
(B) Other community members at risk.
(2) The law enforcement agency may authorize persons and entities
who receive the information pursuant to paragraph (1) to disclose
information to additional persons only if the agency does the
following:
(A) Determines that all conditions set forth in paragraph (1) have
been satisfied regarding disclosure to the additional persons.
(B) Identifies the appropriate scope of further disclosure.
(3) Persons notified pursuant to paragraph (1) may disclose the
information provided by the law enforcement agency in the manner and
to the extent authorized by the law enforcement agency.
(4) The information that may be disclosed pursuant to this section
includes the following:
(A) The offender's full name.
(B) The offender's known aliases.
(C) The offender's gender.
(D) The offender's race.
(E) The offender's physical description.
(F) The offender's photograph.
(G) The offender's date of birth.
(H) Crimes resulting in registration under this section.
(I) The offender's address, which must be verified prior to
publication.
(J) Description and license plate number of offender's vehicles or
vehicles the offender is known to drive.
(K) Type of victim targeted by the offender.
(L) Relevant parole or probation conditions, such as one
prohibiting contact with children.
(M) Dates of crimes resulting in classification under this
section.
(N) Date of release from confinement.
(O) The offender's enrollment, employment, or vocational status
with any university, college, community college, or other institution
of higher learning.
However, information disclosed pursuant to this subdivision shall
not include information that would identify the victim.
(5) If a law enforcement agency discloses information pursuant to
this subdivision, it shall include, with the disclosure, a statement
that the purpose of the release of the information is to allow
members of the public to protect themselves and their children from
sex offenders.
(6) For purposes of this section, "likely to encounter" means both
of the following:
(A) That the agencies, organizations, or other community members
are in a location or in close proximity to a location where the
offender lives or is employed, or that the offender visits or is
likely to visit on a regular basis.
(B) The types of interaction that ordinarily occur at that
location and other circumstances indicate that contact with the
offender is reasonably probable.
(7) For purposes of this section, "reasonably suspects" means that
it is objectively reasonable for a peace officer to entertain a
suspicion, based upon facts that could cause a reasonable person in a
like position, drawing when appropriate on his or her training and
experience, to suspect that a child or other person is at risk.
(8) For purposes of this section, "at risk" means a person is or
may be exposed to a risk of becoming a victim of a sex offense
committed by the offender.
(9) A law enforcement agency may continue to disclose information
on an offender under this subdivision for as long as the offender is
included in Section 290.4.
(n) In addition to the procedures set forth elsewhere in this
section, a designated law enforcement entity may advise the public of
the presence of high-risk sex offenders in its community pursuant to
this subdivision.
(1) For purposes of this subdivision:
(A) A high-risk sex offender is a person who has been convicted of
an offense specified in paragraph (1) of subdivision (a) of Section
290.4, and also meets one of the following criteria:
(i) Has been convicted of three or more violent sex offenses, at
least two of which were brought and tried separately.
(ii) Has been convicted of two violent sex offenses and one or
more violent nonsex offenses, at least two of which were brought and
tried separately.
(iii) Has been convicted of one violent sex offense and two or
more violent nonsex offenses, at least two of which were brought and
tried separately.
(iv) Has been convicted of either two violent sex offenses or one
violent sex offense and one violent nonsex offense, at least two of
which were brought and tried separately, and has been arrested on
separate occasions for three or more violent sex offenses, violent
nonsex offenses, or associated offenses.
(v) Has been adjudicated a sexually violent predator pursuant to
Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of
Division 6 of the Welfare and Institutions Code.
(B) A violent sex offense means any offense defined in Section
220, except attempt to commit mayhem, or Section 261, 264.1, 286,
288, 288a, 288.5, 289, or 647.6, or infliction of great bodily injury
during the commission of a sex offense, as provided in Section
12022.8.
(C) A violent nonsex offense means any offense defined in Section
187, subdivision (a) of Section 192, or Section 203, 206, 207, or
236, provided that the offense is a felony, subdivision (a) of
Section 273a, Section 273d or 451, or attempted murder, as defined in
Sections 187 and 664.
(D) An associated offense means any offense defined in Section
243.4, provided that the offense is a felony, Section 311.1, 311.2,
311.3, 311.4, 311.5, 311.6, 311.7, or 314, Section 459, provided the
offense is of the first degree, Section 597 or 646.9, subdivision
(d), (h), or (i) of Section 647, Section 653m, or infliction of great
bodily injury during the commission of a felony, as defined in
Section 12022.7.
(E) For purposes of subparagraphs (B) to (D), inclusive, an arrest
or conviction for the statutory predecessor of any of the enumerated
offenses, or an arrest or conviction in any other jurisdiction for
any offense that, if committed or attempted in this state, would have
been punishable as one or more of the offenses described in those
subparagraphs, is to be considered in determining whether an offender
is a high-risk sex offender.
(F) For purposes of subparagraphs (B) to (D), inclusive, an arrest
as a juvenile or an adjudication as a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions
Code for any of the offenses described in those subparagraphs is to
be considered in determining whether an offender is a high-risk sex
offender.
(G) Notwithstanding subparagraphs (A) to (D), inclusive, an
offender shall not be considered to be a high-risk sex offender if
either of the following apply:
(i) The offender's most recent conviction or arrest for an offense
described in subparagraphs (B) to (D), inclusive, occurred more than
five years prior to the high-risk assessment by the Department of
Justice, excluding periods of confinement.
(ii) The offender notifies the Department of Justice, on a form
approved by the department and available at any sheriff's office,
that he or she has not been convicted in the preceding 15 years,
excluding periods of confinement, of an offense for which
registration is required under paragraph (2) of subdivision (a), and
the department is able, upon exercise of reasonable diligence, to
verify the information provided in paragraph (2).
(H) "Confinement" means confinement in a jail, prison, school,
road camp, or other penal institution, confinement in a state
hospital to which the offender was committed as a mentally disordered
sex offender under Article 1 (commencing with Section 6300) of
Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions
Code, or confinement in a facility designated by the Director of
Mental Health to which the offender was committed as a sexually
violent predator under Article 4 (commencing with Section 6600) of
Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions
Code.
(I) "Designated law enforcement entity" means any of the
following: municipal police department; sheriff's department;
district attorney's office; county probation department; Department
of Justice; Department of Corrections; Department of the Youth
Authority; Department of the California Highway Patrol; or the police
department of any campus of the University of California, California
State University, or community college.
(2) The Department of Justice shall continually search the records
provided to it pursuant to subdivision (b) and identify, on the
basis of those records, high-risk sex offenders. Four times each
year, the department shall provide to each chief of police and
sheriff in the state, and to any other designated law enforcement
entity upon request, the following information regarding each
identified high-risk sex offender: full name; known aliases; gender;
race; physical description; photograph; date of birth; and crimes
resulting in classification under this section.
(3) The Department of Justice and any designated law enforcement
entity to which notice has been given pursuant to paragraph (2) may
cause to be made public, by whatever means the agency deems necessary
to ensure the public safety, based upon information available to the
agency concerning a specific person, including, but not limited to,
the information described in paragraph (2); the offender's address,
which shall be verified prior to publication; description and license
plate number of the offender's vehicles or vehicles the offender is
known to drive; type of victim targeted by the offender; relevant
parole or probation conditions, such as one prohibiting contact with
children; dates of crimes resulting in classification under this
section; and date of release from confinement; but excluding
information that would identify the victim.
(4) Notwithstanding any other provision of law, any person
described in paragraph (2) of subdivision (p) who receives
information from a designated law enforcement entity pursuant to
paragraph (3) may disclose that information in the manner and to the
extent authorized by the law enforcement entity.
(5) The law enforcement agency may authorize persons and entities
who receive the information pursuant to paragraph (3) to disclose
information to additional persons only if the agency does the
following:
(A) Determines that all conditions set forth in this subdivision
have been satisfied regarding disclosure to the additional persons.
(B) Identifies the appropriate scope of further disclosure.
(o) Agencies disseminating information to the public pursuant to
Section 290.4 shall maintain records of those persons requesting to
view the CD-ROM or other electronic media for a minimum of five
years. Agencies disseminating information to the public pursuant to
subdivision (n) shall maintain records of the means and dates of
dissemination for a minimum of five years.
(p) (1) Any law enforcement agency and employees of any law
enforcement agency shall be immune from liability for good faith
conduct under this section. For the purposes of this section, "law
enforcement agency" means the Attorney General of California, every
district attorney, the Department of Corrections, the Department of
the Youth Authority, and every state or local agency expressly
authorized by statute to investigate or prosecute law violators.
(2) Any public or private educational institution, day care
facility, or any child care custodian described in Section 11165.7,
or any employee of a public or private educational institution or day
care facility which in good faith disseminates information as
authorized pursuant to paragraph (3) of subdivision (m) or paragraph
(4) of subdivision (n) that is provided by a law enforcement agency
or an employee of a law enforcement agency shall be immune from civil
liability.
(q) (1) Any person who uses information disclosed pursuant to this
section to commit a felony shall be punished, in addition and
consecutive to any other punishment, by a five-year term of
imprisonment in the state prison.
(2) Any person who uses information disclosed pursuant to this
section to commit a misdemeanor shall be subject to, in addition to
any other penalty or fine imposed, a fine of not less than five
hundred dollars ($500) and not more than one thousand dollars
($1,000).
(r) The registration and public notification provisions of this
section are applicable to every person described in this section,
without regard to when his or her crimes were committed or his or her
duty to register pursuant to this section arose, and to every
offense described in this section, regardless of when it was
committed.
SEC. 172. Section 299.5 of the Penal Code is amended to read:
299.5. (a) All DNA and forensic identification profiles and other
identification information retained by the Department of Justice
pursuant to this chapter are exempt from any law requiring disclosure
of information to the public and shall be confidential except as
otherwise provided in this chapter.
(b) All evidence and forensic samples containing biological
material retained by the Department of Justice DNA Laboratory or
other state law enforcement agency are exempt from any law requiring
disclosure of information to the public or the return of biological
specimens.
(c) Non-DNA forensic identification information may be filed with
the offender's file maintained by the Sex Registration Unit of the
Department of Justice or in other computerized data bank systems
maintained by the Department of Justice.
(d) The DNA and other forensic identification information retained
by the Department of Justice pursuant to this chapter shall not be
included in the state summary criminal history information. However,
nothing in this chapter precludes law enforcement personnel from
entering into a person's criminal history information or offender
file maintained by the Department of Justice, the fact that the
specimens, samples, and print impressions required by this chapter
have or have not been collected from that person.
(e) The fact that the blood specimens, saliva samples, and print
impressions required by this chapter have been received by the DNA
Laboratory of the Department of Justice shall be included in the
state summary criminal history information.
The full palm prints of each hand shall be filed and maintained by
the Automated Latent Print Section of the Bureau of Criminal
Identification and Information of the Department of Justice, and may
be included in the state summary criminal history information.
(f) DNA and other forensic identification information shall be
released only to law enforcement agencies, including, but not limited
to, parole officers of the Department of Corrections, hearing
officers of the parole authority, probation officers, the Attorney
General's office, district attorneys' offices, and prosecuting city
attorneys' offices, or to a court or administrative tribunal, except
as specified in this chapter. Dissemination of this information to
law enforcement agencies and district attorneys' offices outside this
state shall be performed in conformity with the provisions of this
chapter. A defendant's DNA and other forensic identification
information developed pursuant to this chapter shall be available to
his or her defense counsel upon court order made pursuant to Chapter
10 (commencing with Section 1054) of Title 6 of Part 2.
(g) (1) (A) Any person who knowingly uses an offender sample or
DNA profile for other than criminal identification or exclusion
purposes, or who knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, for other than criminal
identification or exclusion purposes, in violation of this chapter,
shall be punished by imprisonment in a county jail not exceeding one
year or by imprisonment in the state prison.
(B) Any person who, for the purpose of financial gain, knowingly
uses an offender sample or DNA profile for other than criminal
identification or exclusion purposes or who, for the purpose of
financial gain, knowingly discloses DNA or other forensic
identification information developed pursuant to this section to an
unauthorized individual or agency, for other than criminal
identification or exclusion purposes, in violation of this chapter,
shall, in addition to the penalty provided in subparagraph (A), be
punished by a criminal fine in an amount three times that of any
financial gain received or ten thousand dollars ($10,000), whichever
is greater.
(2) (A) If any employee of the Department of Justice knowingly
uses an offender sample or DNA profile for other than criminal
identification or exclusion purposes, or knowingly discloses DNA or
other forensic identification information developed pursuant to this
section to an unauthorized individual or agency, for other than
criminal identification or exclusion purposes, in violation of this
chapter, the department shall be liable in civil damages to the donor
of the DNA identification information in the amount of five thousand
dollars ($5,000) for each violation, plus attorney's fees and costs.
In the event of multiple disclosures, the total damages available
to the donor of the DNA is limited to fifty thousand dollars
($50,000) plus attorney's fees and costs.
(B) (i) Notwithstanding any other law, this shall be the sole and
exclusive remedy against the Department of Justice and its employees
available to the donor of the DNA.
(ii) The Department of Justice employee disclosing DNA
identification information in violation of this chapter shall be
absolutely immune from civil liability under this or any other law.
(3) It is not a violation of this section for a law enforcement
agency to publicly disclose the fact of a DNA profile match.
(h) It is not a violation of this chapter to furnish DNA or other
forensic identification information of the defendant to his or her
defense counsel for criminal defense purposes in compliance with
discovery.
(i) It is not a violation of this section to release DNA and other
forensic identification information developed pursuant to this
chapter to a jury or grand jury, or in a document filed with a court
or administrative agency, or as part of a judicial or administrative
proceeding, or for this information to become part of the public
transcript or record of proceedings.
(j) It is not a violation of this section to include information
obtained from a file in a transcript or record of a judicial
proceeding, or in any other public record when the inclusion of the
information in the public record is authorized by a court, statute,
or decisional law.
(k) It is not a violation of this section for the DNA Laboratory
of the Department of Justice or a local public laboratory to use
anonymous DNA records for training, research, statistical analysis of
populations, or quality control.
(l) It is not a violation of this section to disseminate
statistical or research information obtained from the offender's
file, the computerized databank system, any of the DNA laboratory's
databases, or the full palm print file, provided that the subject of
the file is not identified and cannot be identified from the
information disclosed. All requests for statistical or research
information obtained from the DNA databank shall be cataloged by the
Department of Justice. Commencing January 1, 2000, the department
shall submit an annual letter to the Legislature including, with
respect to each request, the requester's name or agency, the purpose
of the request, whether the request is related to a criminal
investigation or court proceeding, whether the request was granted or
denied, any reasons for denial, costs incurred or estimates of the
cost of the request, and the date of the request.
(m) The Department of Justice shall make public the methodology
and procedures to be used in its DNA program prior to the
commencement of DNA testing
in its laboratories. The Department of Justice shall review and
consider on an ongoing basis the findings and results of any peer
review and validation studies submitted to the department by members
of the relevant scientific community experienced in the use of DNA
technology. This material shall be available to criminal defense
counsel upon court order made pursuant to Chapter 10 (commencing with
Section 1054) of Title 6 of Part 2.
(n) In order to maintain the computer system security of the
Department of Justice DNA and forensic identification database and
databank program, the computer software and database structures used
by the DNA Laboratory of the Department of Justice to implement this
chapter are confidential.
(o) Nothing in this section shall preclude a court from ordering
discovery pursuant to Chapter 10 (commencing with Section 1054) of
Title 6 of Part 2.
SEC. 173. Section 637.5 of the Penal Code is amended to read:
637.5. (a) No person who owns, controls, operates, or manages a
satellite or cable television corporation, or who leases channels on
a satellite or cable system shall:
(1) Use any electronic device to record, transmit, or observe any
events or listen to, record, or monitor any conversations that take
place inside a subscriber's residence, workplace, or place of
business, without obtaining the express written consent of the
subscriber. A satellite or cable television corporation may conduct
electronic sweeps of subscriber households to monitor for signal
quality.
(2) Provide any person with any individually identifiable
information regarding any of its subscribers, including, but not
limited to, the subscriber's television viewing habits, shopping
choices, interests, opinions, energy uses, medical information,
banking data or information, or any other personal or private
information, without the subscriber's express written consent.
(b) Individual subscriber viewing responses or other individually
identifiable information derived from subscribers may be retained and
used by a satellite or cable television corporation only to the
extent reasonably necessary for billing purposes and internal
business practices, and to monitor for unauthorized reception of
services. A satellite or cable television corporation may compile,
maintain, and distribute a list containing the names and addresses of
its subscribers if the list contains no other individually
identifiable information and if subscribers are afforded the right to
elect not to be included on the list. However, a satellite or cable
television corporation shall maintain adequate safeguards to ensure
the physical security and confidentiality of the subscriber
information.
(c) A satellite or cable television corporation shall not make
individual subscriber information available to government agencies in
the absence of legal compulsion, including, but not limited to, a
court order or subpoena. If requests for information are made, a
satellite or cable television corporation shall promptly notify the
subscriber of the nature of the request and what government agency
has requested the information prior to responding unless otherwise
prohibited from doing so by law.
Nothing in this section shall be construed to prevent local
franchising authorities from obtaining information necessary to
monitor franchise compliance pursuant to franchise or license
agreements. This information shall be provided so as to omit
individually identifiable subscriber information whenever possible.
Information obtained by local franchising authorities shall be used
solely for monitoring franchise compliance and shall not be subject
to the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code).
(d) Any individually identifiable subscriber information gathered
by a satellite or cable television corporation shall be made
available for subscriber examination within 30 days of receiving a
request by a subscriber to examine the information on the premises of
the corporation. Upon a reasonable showing by the subscriber that
the information is inaccurate, a satellite or cable television
corporation shall correct the information.
(e) Upon a subscriber's application for satellite or cable
television service, including, but not limited to, interactive
service, a satellite or cable television corporation shall provide
the applicant with a separate notice in an appropriate form
explaining the subscriber's right to privacy protection afforded by
this section.
(f) As used in this section:
(1) "Cable television corporation" shall have the same meaning as
that term is given by Section 215.5 of the Public Utilities Code.
(2) "Individually identifiable information" means any information
identifying an individual or his or her use of any service provided
by a satellite or cable system other than the mere fact that the
individual is a satellite or cable television subscriber.
"Individually identifiable information" shall not include anonymous,
aggregate, or any other information that does not identify an
individual subscriber of a video provider service.
(3) "Person" includes an individual, business association,
partnership, corporation, limited liability company, or other legal
entity, and an individual acting or purporting to act for or on
behalf of any government, or subdivision thereof, whether federal,
state, or local.
(4) "Interactive service" means any service offered by a satellite
or cable television corporation involving the collection, reception,
aggregation, storage, or use of electronic information transmitted
from a subscriber to any other receiving point under the control of
the satellite or cable television corporation, or vice versa.
(g) Nothing in this section shall be construed to limit the
ability of a satellite or cable television corporation to market
satellite or cable television or ancillary services to its
subscribers.
(h) Any person receiving subscriber information from a satellite
or cable television corporation shall be subject to the provisions of
this section.
(i) Any aggrieved person may commence a civil action for damages
for invasion of privacy against any satellite or cable television
corporation, service provider, or person that leases a channel or
channels on a satellite or cable television system that violates the
provisions of this section.
(j) Any person who violates the provisions of this section is
guilty of a misdemeanor punishable by a fine not exceeding three
thousand dollars ($3,000), or by imprisonment in the county jail not
exceeding one year, or by both that fine and imprisonment.
(k) The penalties and remedies provided by subdivisions (i) and
(j) are cumulative, and shall not be construed as restricting any
penalty or remedy, provisional or otherwise, provided by law for the
benefit of any person, and no judgment under this section shall
preclude any person from obtaining additional relief based upon the
same facts.
(l) The provisions of this section are intended to set forth
minimum state standards for protecting the privacy of subscribers to
cable television services and are not intended to preempt more
restrictive local standards.
SEC. 173.5. Section 1370 of the Penal Code is amended to read:
1370. (a) (1) (A) If the defendant is found mentally competent,
the criminal process shall resume, the trial on the offense charged
shall proceed, and judgment may be pronounced.
(B) If the defendant is found mentally incompetent, the trial or
judgment shall be suspended until the person becomes mentally
competent.
(i) In the meantime, the court shall order that the mentally
incompetent defendant be delivered by the sheriff to a state hospital
for the care and treatment of the mentally disordered, or to any
other available public or private treatment facility approved by the
community program director that will promote the defendant's speedy
restoration to mental competence, or placed on outpatient status as
specified in Section 1600.
(ii) However, if the action against the defendant who has been
found mentally incompetent is on a complaint charging a felony
offense specified in Section 290, the prosecutor shall determine
whether the defendant previously has been found mentally incompetent
to stand trial pursuant to this chapter on a charge of a Section 290
offense, or whether the defendant is currently the subject of a
pending Section 1368 proceeding arising out of a charge of a Section
290 offense. If either determination is made, the prosecutor shall
so notify the court and defendant in writing. After this
notification, and opportunity for hearing, the court shall order that
the defendant be delivered by the sheriff to a state hospital or
other secure treatment facility for the care and treatment of the
mentally disordered unless the court makes specific findings on the
record that an alternative placement would provide more appropriate
treatment for the defendant and would not pose a danger to the health
and safety of others.
(iii) If the action against the defendant who has been found
mentally incompetent is on a complaint charging a felony offense
specified in Section 290 and the defendant has been denied bail
pursuant to subdivision (b) of Section 12 of Article I of the
California Constitution because the court has found, based upon clear
and convincing evidence, a substantial likelihood that the person's
release would result in great bodily harm to others, the court shall
order that the defendant be delivered by the sheriff to a state
hospital for the care and treatment of the mentally disordered unless
the court makes specific findings on the record that an alternative
placement would provide more appropriate treatment for the defendant
and would not pose a danger to the health and safety of others.
(iv) The clerk of the court shall notify the Department of Justice
in writing of any finding of mental incompetence with respect to a
defendant who is subject to clause (ii) or (iii) for inclusion in his
or her state summary criminal history information.
(C) Upon the filing of a certificate of restoration to competence,
the court shall order that the defendant be returned to court in
accordance with Section 1372. The court shall transmit a copy of its
order to the community program director or a designee.
(D) A defendant charged with a violent felony may not be delivered
to a state hospital or treatment facility pursuant to this
subdivision unless the state hospital or treatment facility has a
secured perimeter or a locked and controlled treatment facility, and
the judge determines that the public safety will be protected.
(E) For purposes of this paragraph, "violent felony" means an
offense specified in subdivision (c) of Section 667.5.
(F) A defendant charged with a violent felony may be placed on
outpatient status, as specified in Section 1600, only if the court
finds that the placement will not pose a danger to the health or
safety of others.
(2) Prior to making the order directing that the defendant be
confined in a state hospital or other treatment facility or placed on
outpatient status, the court shall order the community program
director or a designee to evaluate the defendant and to submit to the
court within 15 judicial days of the order a written recommendation
as to whether the defendant should be required to undergo outpatient
treatment, or committed to a state hospital or to any other treatment
facility. No person shall be admitted to a state hospital or other
treatment facility or placed on outpatient status under this section
without having been evaluated by the community program director or a
designee.
(3) When the court orders that the defendant be confined in a
state hospital or other public or private treatment facility, the
court shall provide copies of the following documents which shall be
taken with the defendant to the state hospital or other treatment
facility where the defendant is to be confined:
(A) The commitment order, including a specification of the
charges.
(B) A computation or statement setting forth the maximum term of
commitment in accordance with subdivision (c).
(C) A computation or statement setting forth the amount of credit
for time served, if any, to be deducted from the maximum term of
commitment.
(D) State summary criminal history information.
(E) Any arrest reports prepared by the police department or other
law enforcement agency.
(F) Any court-ordered psychiatric examination or evaluation
reports.
(G) The community program director's placement recommendation
report.
(H) Records of any finding of mental incompetence pursuant to this
chapter arising out of a complaint charging a felony offense
specified in Section 290 or any pending Section 1368 proceeding
arising out of a charge of a Section 290 offense.
(4) When the defendant is committed to a treatment facility
pursuant to clause (i) of subparagraph (B) of paragraph (1) or the
court makes the findings specified in clause (ii) or (iii) of
subparagraph (B) of paragraph (1) to assign the defendant to a
treatment facility other than a state hospital or other secure
treatment facility, the court shall order that notice be given to the
appropriate law enforcement agency or agencies having local
jurisdiction at the site of the placement facility of any finding of
mental incompetence pursuant to this chapter arising out of a charge
of a Section 290 offense.
(5) When directing that the defendant be confined in a state
hospital pursuant to this subdivision, the court shall select the
hospital in accordance with the policies established by the State
Department of Mental Health.
(6) (A) If the defendant is committed or transferred to a state
hospital pursuant to this section, the court may, upon receiving the
written recommendation of the medical director of the state hospital
and the community program director that the defendant be transferred
to a public or private treatment facility approved by the community
program director, order the defendant transferred to that facility.
If the defendant is committed or transferred to a public or private
treatment facility approved by the community program director, the
court may, upon receiving the written recommendation of the community
program director, transfer the defendant to a state hospital or to
another public or private treatment facility approved by the
community program director. In the event of dismissal of the
criminal charges before the defendant recovers competence, the person
shall be subject to the applicable provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code). Where either the
defendant or the prosecutor chooses to contest either kind of order
of transfer, a petition may be filed in the court for a hearing,
which shall be held if the court determines that sufficient grounds
exist. At the hearing, the prosecuting attorney or the defendant may
present evidence bearing on the order of transfer. The court shall
use the same standards as are used in conducting probation revocation
hearings pursuant to Section 1203.2.
Prior to making an order for transfer under this section, the
court shall notify the defendant, the attorney of record for the
defendant, the prosecuting attorney, and the community program
director or a designee.
(B) If the defendant is initially committed to a state hospital or
secure treatment facility pursuant to clause (ii) or (iii) of
subparagraph (B) of paragraph (1) and is subsequently transferred to
any other facility, copies of the documents specified in paragraph
(3) shall be taken with the defendant to each subsequent facility to
which the defendant is transferred. The transferring facility shall
also notify the appropriate law enforcement agency or agencies having
local jurisdiction at the site of the new facility that the
defendant is a person subject to clause (ii) or (iii) of subparagraph
(B) of paragraph (1).
(b) (1) Within 90 days of a commitment made pursuant to
subdivision (a), the medical director of the state hospital or other
treatment facility to which the defendant is confined shall make a
written report to the court and the community program director for
the county or region of commitment, or a designee, concerning the
defendant's progress toward recovery of mental competence. Where the
defendant is on outpatient status, the outpatient treatment staff
shall make a written report to the community program director
concerning the defendant's progress toward recovery of mental
competence. Within 90 days of placement on outpatient status, the
community program director shall report to the court on this matter.
If the defendant has not recovered mental competence, but the report
discloses a substantial likelihood that the defendant will regain
mental competence in the foreseeable future, the defendant shall
remain in the state hospital or other treatment facility or on
outpatient status. Thereafter, at six-month intervals or until the
defendant becomes mentally competent, where the defendant is confined
in a treatment facility, the medical director of the hospital or
person in charge of the facility shall report in writing to the court
and the community program director or a designee regarding the
defendant's progress toward recovery of mental competence. Where the
defendant is on outpatient status, after the initial 90-day report,
the outpatient treatment staff shall report to the community program
director on the defendant's progress toward recovery, and the
community program director shall report to the court on this matter
at six-month intervals. A copy of these reports shall be provided to
the prosecutor and defense counsel by the court. If the report
indicates that there is no substantial likelihood that the defendant
will regain mental competence in the foreseeable future, the
committing court shall order the defendant to be returned to the
court for proceedings pursuant to paragraph (2) of subdivision (c).
The court shall transmit a copy of its order to the community program
director or a designee.
(2) Any defendant who has been committed or has been on outpatient
status for 18 months and is still hospitalized or on outpatient
status shall be returned to the committing court where a hearing
shall be held pursuant to the procedures set forth in Section 1369.
The court shall transmit a copy of its order to the community program
director or a designee.
(3) If it is determined by the court that no treatment for the
defendant's mental impairment is being conducted, the defendant shall
be returned to the committing court. The court shall transmit a
copy of its order to the community program director or a designee.
(4) At each review by the court specified in this subdivision, the
court shall determine if the security level of housing and treatment
is appropriate and may make an order in accordance with its
determination.
(c) (1) At the end of three years from the date of commitment or a
period of commitment equal to the maximum term of imprisonment
provided by law for the most serious offense charged in the
information, indictment, or misdemeanor complaint, whichever is
shorter, a defendant who has not recovered mental competence shall be
returned to the committing court. The court shall notify the
community program director or a designee of the return and of any
resulting court orders.
(2) Whenever any defendant is returned to the court pursuant to
paragraph (1) or (2) of subdivision (b) or paragraph (1) of this
subdivision and it appears to the court that the defendant is gravely
disabled, as defined in subparagraph (B) of paragraph (1) of
subdivision (h) of Section 5008 of the Welfare and Institutions Code,
the court shall order the conservatorship investigator of the county
of commitment of the defendant to initiate conservatorship
proceedings for the defendant pursuant to Chapter 3 (commencing with
Section 5350) of Part 1 of Division 5 of the Welfare and Institutions
Code. Any hearings required in the conservatorship proceedings
shall be held in the superior court in the county that ordered the
commitment. The court shall transmit a copy of the order directing
initiation of conservatorship proceedings to the community program
director or a designee and shall notify the community program
director or a designee of the outcome of the proceedings.
(3) Where the defendant is confined in a treatment facility, a
copy of any report to the committing court regarding the defendant's
progress toward recovery of mental competence shall be provided by
the committing court to the prosecutor and to the defense counsel.
(d) The criminal action remains subject to dismissal pursuant to
Section 1385. If the criminal action is dismissed, the court shall
transmit a copy of the order of dismissal to the community program
director or a designee.
(e) If the criminal charge against the defendant is dismissed, the
defendant shall be released from any commitment ordered under this
section, but without prejudice to the initiation of any proceedings
that may be appropriate under the Lanterman-Petris-Short Act, Part 1
(commencing with Section 5000) of Division 5 of the Welfare and
Institutions Code.
(f) As used in this chapter, "community program director" means
the person, agency, or entity designated by the State Department of
Mental Health pursuant to Section 1605 of this code and Section 4360
of the Welfare and Institutions Code.
(g) For the purpose of this section, "secure treatment facility"
shall not include, except for state mental hospitals, state
developmental centers, and correctional treatment facilities, any
facility licensed pursuant to Chapter 2 (commencing with Section
1250) of, Chapter 3 (commencing with Section 1500) of, or Chapter 3.2
(commencing with Section 1569) of, Division 2 of the Health and
Safety Code, or any community board and care facility.
SEC. 174. Section 11174.4 of the Penal Code is amended to read:
11174.4. The following definitions shall govern the construction
of this article, unless the context requires otherwise:
(a) "Elder" means any person who is 65 years of age or older.
(b) (1) "Abuse" means any of the conduct described in Article 2
(commencing with Section 15610) of Chapter 11 of Part 3 of Division 9
of the Welfare and Institutions Code.
(2) Abuse does not include the use of any reasonable and necessary
force that may result in an injury used by a peace officer acting
within the course of his or her employment as a peace officer.
SEC. 175. Section 12035 of the Penal Code is amended to read:
12035. (a) As used in this section, the following definitions
apply:
(1) "Locking device" means a device that is designed to prevent
the firearm from functioning and when applied to the firearm, renders
the firearm inoperable.
(2) "Loaded firearm" has the same meaning as set forth in
subdivision (g) of Section 12031.
(3) "Child" means a person under 18 years of age.
(4) "Great bodily injury" has the same meaning as set forth in
Section 12022.7.
(5) "Locked container" has the same meaning as set forth in
subdivision (d) of Section 12026.2.
(b) (1) Except as provided in subdivision (c), a person commits
the crime of "criminal storage of a firearm of the first degree" if
he or she keeps any loaded firearm within any premises that are under
his or her custody or control and he or she knows or reasonably
should know that a child is likely to gain access to the firearm
without the permission of the child's parent or legal guardian and
the child obtains access to the firearm and thereby causes death or
great bodily injury to himself, herself, or any other person.
(2) Except as provided in subdivision (c), a person commits the
crime of "criminal storage of a firearm of the second degree" if he
or she keeps any loaded firearm within any premises that are under
his or her custody or control and he or she knows or reasonably
should know that a child is likely to gain access to the firearm
without the permission of the child's parent or legal guardian and
the child obtains access to the firearm and thereby causes injury,
other than great bodily injury, to himself, herself, or any other
person, or carries the firearm either to a public place or in
violation of Section 417.
(c) Subdivision (b) shall not apply whenever any of the following
occurs:
(1) The child obtains the firearm as a result of an illegal entry
to any premises by any person.
(2) The firearm is kept in a locked container or in a location
that a reasonable person would believe to be secure.
(3) The firearm is carried on the person or within such a close
proximity thereto that the individual can readily retrieve and use
the firearm as if carried on the person.
(4) The firearm is locked with a locking device that has rendered
the firearm inoperable.
(5) The person is a peace officer or a member of the armed forces
or National Guard and the child obtains the firearm during, or
incidental to, the performance of the person's duties.
(6) The child obtains, or obtains and discharges, the firearm in a
lawful act of self-defense or defense of another person, or persons.
(7) The person who keeps a loaded firearm on any premise that is
under his or her custody or control has no reasonable expectation,
based on objective facts and circumstances, that a child is likely to
be present on the premises.
(d) Criminal storage of a firearm is punishable as follows:
(1) Criminal storage of a firearm in the first degree, by
imprisonment in the state prison for 16 months, or two or three
years, by a fine not exceeding ten thousand dollars ($10,000), or by
both that imprisonment and fine; or by imprisonment in a county jail
not exceeding one year, by a fine not exceeding one thousand dollars
($1,000), or by both that fine and imprisonment.
(2) Criminal storage of a firearm in the second degree, by
imprisonment in a county jail not exceeding one year, by a fine not
exceeding one thousand dollars ($1,000), or by both that imprisonment
and fine.
(e) If the person who allegedly violated this section is the
parent or guardian of a child who is injured or who dies as the
result of an accidental shooting, the district attorney shall
consider, among other factors, the impact of the injury or death on
the person alleged to have violated this section when deciding
whether to prosecute an alleged violation. It is the Legislature's
intent that a parent or guardian of a child
who is injured or who dies as the result of an
accidental shooting shall be prosecuted only in those instances in
which the parent or guardian behaved in a grossly negligent manner or
where similarly egregious circumstances exist. This subdivision
shall not otherwise restrict, in any manner, the factors that a
district attorney may consider when deciding whether to prosecute
alleged violations of this section.
(f) If the person who allegedly violated this section is the
parent or guardian of a child who is injured or who dies as the
result of an accidental shooting, no arrest of the person for the
alleged violation of this section shall occur until at least seven
days after the date upon which the accidental shooting occurred.
In addition to the limitation contained in this subdivision, a law
enforcement officer shall consider the health status of a child who
suffers great bodily injury as the result of an accidental shooting
prior to arresting a person for a violation of this section, if the
person to be arrested is the parent or guardian of the injured child.
The intent of this subdivision is to encourage law enforcement
officials to delay the arrest of a parent or guardian of a seriously
injured child while the child remains on life-support equipment or is
in a similarly critical medical condition.
(g) (1) The fact that the person who allegedly violated this
section attended a firearm safety training course prior to the
purchase of the firearm that is obtained by a child in violation of
this section shall be considered a mitigating factor by a district
attorney when he or she is deciding whether to prosecute the alleged
violation.
(2) In any action or trial commenced under this section, the fact
that the person who allegedly violated this section attended a
firearm safety training course prior to the purchase of the firearm
that is obtained by a child in violation of this section, shall be
admissible.
(h) Every person licensed under Section 12071 shall post within
the licensed premises the notice required by paragraph (7) of
subdivision (b) of that section, disclosing the duty imposed by this
section upon any person who keeps a loaded firearm.
SEC. 176. Section 12071 of the Penal Code is amended to read:
12071. (a) (1) As used in this chapter, the term "licensee,"
"person licensed pursuant to Section 12071," or "dealer" means a
person who has all of the following:
(A) A valid federal firearms license.
(B) Any regulatory or business license, or licenses, required by
local government.
(C) A valid seller's permit issued by the State Board of
Equalization.
(D) A certificate of eligibility issued by the Department of
Justice pursuant to paragraph (4).
(E) A license issued in the format prescribed by paragraph (6).
(F) Is among those recorded in the centralized list specified in
subdivision (e).
(2) The duly constituted licensing authority of a city, county, or
a city and county shall accept applications for, and may grant
licenses permitting, licensees to sell firearms at retail within the
city, county, or city and county. The duly constituted licensing
authority shall inform applicants who are denied licenses of the
reasons for the denial in writing.
(3) No license shall be granted to any applicant who fails to
provide a copy of his or her valid federal firearms license, valid
seller's permit issued by the State Board of Equalization, and the
certificate of eligibility described in paragraph (4).
(4) A person may request a certificate of eligibility from the
Department of Justice and the Department of Justice shall issue a
certificate to an applicant if the department's records indicate that
the applicant is not a person who is prohibited from possessing
firearms.
(5) The department shall adopt regulations to administer the
certificate of eligibility program and shall recover the full costs
of administering the program by imposing fees assessed to applicants
who apply for those certificates.
(6) A license granted by the duly constituted licensing authority
of any city, county, or city and county, shall be valid for not more
than one year from the date of issuance and shall be in one of the
following forms:
(A) In the form prescribed by the Attorney General.
(B) A regulatory or business license that states on its face
"Valid for Retail Sales of Firearms" and is endorsed by the signature
of the issuing authority.
(C) A letter from the duly constituted licensing authority having
primary jurisdiction for the applicant's intended business location
stating that the jurisdiction does not require any form of regulatory
or business license or does not otherwise restrict or regulate the
sale of firearms.
(7) Local licensing authorities may assess fees to recover their
full costs of processing applications for licenses.
(b) A license is subject to forfeiture for a breach of any of the
following prohibitions and requirements:
(1) (A) Except as provided in subparagraphs (B) and (C), the
business shall be conducted only in the buildings designated in the
license.
(B) A person licensed pursuant to subdivision (a) may take
possession of firearms and commence preparation of registers for the
sale, delivery, or transfer of firearms at gun shows or events, as
defined in Section 178.100 of Title 27 of the Code of Federal
Regulations, or its successor, if the gun show or event is not
conducted from any motorized or towed vehicle. A person conducting
business pursuant to this subparagraph shall be entitled to conduct
business as authorized herein at any gun show or event in the state
without regard to the jurisdiction within this state that issued the
license pursuant to subdivision (a), provided the person complies
with (i) all applicable laws, including, but not limited to, the
waiting period specified in subparagraph (A) of paragraph (3), and
(ii) all applicable local laws, regulations, and fees, if any.
A person conducting business pursuant to this subparagraph shall
publicly display his or her license issued pursuant to subdivision
(a), or a facsimile thereof, at any gun show or event, as specified
in this subparagraph.
(C) A person licensed pursuant to subdivision (a) may engage in
the sale and transfer of firearms other than pistols, revolvers, or
other firearms capable of being concealed upon the person, at events
specified in subdivision (g) of Section 12078, subject to the
prohibitions and restrictions contained in that subdivision.
A person licensed pursuant to subdivision (a) also may accept
delivery of firearms other than pistols, revolvers, or other firearms
capable of being concealed upon the person, outside the building
designated in the license, provided the firearm is being donated for
the purpose of sale or transfer at an auction or similar event
specified in subdivision (g) of Section 12078.
(D) The firearm may be delivered to the purchaser, transferee, or
person being loaned the firearm at one of the following places:
(i) The building designated in the license.
(ii) The places specified in subparagraph (B) or (C).
(iii) The place of residence of, the fixed place of business of,
or on private property owned or lawfully possessed by, the purchaser,
transferee, or person being loaned the firearm.
(2) The license or a copy thereof, certified by the issuing
authority, shall be displayed on the premises where it can easily be
seen.
(3) No firearm shall be delivered:
(A) Within 10 days of the application to purchase, or, after
notice by the department pursuant to subdivision (d) of Section
12076, within 10 days of the submission to the department of any
correction to the application, or within 10 days of the submission to
the department of any fee required pursuant to subdivision (e) of
Section 12076, whichever is later.
(B) Unless unloaded and securely wrapped or unloaded and in a
locked container.
(C) Unless the purchaser, transferee, or person being loaned the
firearm presents clear evidence of his or her identity and age to the
dealer.
(D) Whenever the dealer is notified by the Department of Justice
that the person is in a prohibited class described in Section 12021
or 12021.1 of this code or Section 8100 or 8103 of the Welfare and
Institutions Code. The dealer shall make available to the person in
the prohibited class a prohibited notice and transfer form, provided
by the department, stating that the person is prohibited from owning
or possessing a firearm, and that the person may obtain from the
department the reason for the prohibition.
(4) No pistol, revolver, or other firearm or imitation thereof
capable of being concealed upon the person, or placard advertising
the sale or other transfer thereof, shall be displayed in any part of
the premises where it can readily be seen from the outside.
(5) The licensee shall agree to and shall act properly and
promptly in processing firearms transactions pursuant to Section
12082.
(6) The licensee shall comply with Sections 12073, 12076, and
12077, subdivisions (a) and (b) of Section 12072, and subdivision (a)
of Section 12316.
(7) The licensee shall post conspicuously within the licensed
premises the following warnings in block letters not less than one
inch in height:
(A) "IF YOU KEEP A LOADED FIREARM WITHIN ANY PREMISES UNDER YOUR
CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE OBTAINS IT AND
USES IT, RESULTING IN INJURY OR DEATH, OR CARRIES IT TO A PUBLIC
PLACE, YOU MAY BE GUILTY OF A MISDEMEANOR OR A FELONY UNLESS YOU
STORED THE FIREARM IN A LOCKED CONTAINER OR LOCKED THE FIREARM WITH A
LOCKING DEVICE, TO KEEP IT FROM TEMPORARILY FUNCTIONING."
(B) "IF YOU KEEP A PISTOL, REVOLVER, OR OTHER FIREARM CAPABLE OF
BEING CONCEALED UPON THE PERSON, WITHIN ANY PREMISES UNDER YOUR
CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE GAINS ACCESS
TO THE FIREARM, AND CARRIES IT OFF-PREMISES, YOU MAY BE GUILTY OF A
MISDEMEANOR, UNLESS YOU STORED THE FIREARM IN A LOCKED CONTAINER, OR
LOCKED THE FIREARM WITH A LOCKING DEVICE, TO KEEP IT FROM TEMPORARILY
FUNCTIONING."
(C) "IF YOU KEEP ANY FIREARM WITHIN ANY PREMISES UNDER YOUR
CUSTODY OR CONTROL, AND A PERSON UNDER 18 YEARS OF AGE GAINS ACCESS
TO THE FIREARM, AND CARRIES IT OFF-PREMISES TO A SCHOOL OR
SCHOOL-SPONSORED EVENT, YOU MAY BE GUILTY OF A MISDEMEANOR, INCLUDING
A FINE OF UP TO FIVE THOUSAND DOLLARS ($5,000), UNLESS YOU STORED
THE FIREARM IN A LOCKED CONTAINER, OR LOCKED THE FIREARM WITH A
LOCKING DEVICE."
(D) "DISCHARGING FIREARMS IN POORLY VENTILATED AREAS, CLEANING
FIREARMS, OR HANDLING AMMUNITION MAY RESULT IN EXPOSURE TO LEAD, A
SUBSTANCE KNOWN TO CAUSE BIRTH DEFECTS, REPRODUCTIVE HARM, AND OTHER
SERIOUS PHYSICAL INJURY. HAVE ADEQUATE VENTILATION AT ALL TIMES.
WASH HANDS THOROUGHLY AFTER EXPOSURE."
(E) "FEDERAL REGULATIONS PROVIDE THAT IF YOU DO NOT TAKE PHYSICAL
POSSESSION OF THE FIREARM THAT YOU ARE ACQUIRING OWNERSHIP OF WITHIN
30 DAYS AFTER YOU COMPLETE THE INITIAL BACKGROUND CHECK PAPERWORK,
THEN YOU HAVE TO GO THROUGH THE BACKGROUND CHECK PROCESS A SECOND
TIME IN ORDER TO TAKE PHYSICAL POSSESSION OF THAT FIREARM."
(F) "NO PERSON SHALL MAKE AN APPLICATION TO PURCHASE MORE THAN ONE
PISTOL, REVOLVER, OR OTHER FIREARM CAPABLE OF BEING CONCEALED UPON
THE PERSON WITHIN ANY 30-DAY PERIOD AND NO DELIVERY SHALL BE MADE TO
ANY PERSON WHO HAS MADE AN APPLICATION TO PURCHASE MORE THAN ONE
PISTOL, REVOLVER, OR OTHER FIREARM CAPABLE OF BEING CONCEALED UPON
THE PERSON WITHIN ANY 30-DAY PERIOD."
(8) (A) Commencing April 1, 1994, and until January 1, 2003, no
pistol, revolver, or other firearm capable of being concealed upon
the person shall be delivered unless the purchaser, transferee, or
person being loaned the firearm presents to the dealer a basic
firearms safety certificate.
(B) Commencing January 1, 2003, no dealer may deliver a handgun
unless the person receiving the handgun presents to the dealer a
valid handgun safety certificate. The firearms dealer shall retain a
photocopy of the handgun safety certificate as proof of compliance
with this requirement.
(C) Commencing January 1, 2003, no handgun may be delivered unless
the purchaser, transferee, or person being loaned the firearm
presents documentation indicating that he or she is a California
resident. Satisfactory documentation shall include a utility bill
from within the last three months, a residential lease, a property
deed, or military permanent duty station orders indicating assignment
within this state, or other evidence of residency as permitted by
the Department of Justice. The firearms dealer shall retain a
photocopy of the documentation as proof of compliance with this
requirement.
(D) Commencing January 1, 2003, except as authorized by the
department, no firearms dealer may deliver a handgun unless the
recipient performs a safe handling demonstration with that handgun.
The demonstration shall commence with the handgun unloaded and locked
with the firearm safety device with which it is required to be
delivered, if applicable. While maintaining muzzle awareness, that
is, the firearm is pointed in a safe direction, preferably down at
the ground, and trigger discipline, that is, the trigger finger is
outside of the trigger guard and along side of the handgun frame, at
all times, the handgun recipient shall correctly and safely perform
the following:
(i) If the handgun is a semiautomatic pistol:
(I) Remove the magazine.
(II) Lock the slide back. If the model of firearm does not allow
the slide to be locked back, pull the slide back, visually and
physically check the chamber to ensure that it is clear.
(III) Visually and physically inspect the chamber, to ensure that
the handgun is unloaded.
(IV) Remove the firearm safety device, if applicable. If the
firearm safety device prevents any of the previous steps, remove the
firearm safety device during the appropriate step.
(V) Load one bright orange dummy round into the magazine.
(VI) Insert the magazine into the magazine well of the firearm.
(VII) Manipulate the slide release or pull back and release the
slide.
(VIII) Remove the magazine.
(IX) Visually inspect the chamber to reveal that a round can be
chambered with the magazine removed.
(X) Lock the slide back to eject the bright orange dummy round.
If the handgun is of a model that does not allow the slide to be
locked back, pull the slide back and physically check the chamber to
ensure that the chamber is clear.
(XI) Apply the safety, if applicable.
(XII) Apply the firearm safety device, if applicable.
(ii) If the handgun is a double-action revolver:
(I) Open the cylinder.
(II) Visually and physically inspect each chamber, to ensure that
the revolver is unloaded.
(III) Remove the firearm safety device. If the firearm safety
device prevents any of the previous steps, remove the firearm safety
device during the appropriate step.
(IV) While maintaining muzzle awareness and trigger discipline,
load one bright orange dummy round into a chamber of the cylinder and
rotate the cylinder so that the round is in the next-to-fire
position.
(V) Close the cylinder.
(VI) Open the cylinder and eject the round.
(VII) Visually and physically inspect each chamber to ensure that
the revolver is unloaded.
(VIII) Apply the firearm safety device, if applicable.
(iii) If the handgun is a single-action revolver:
(I) Open the loading gate.
(II) Visually and physically inspect each chamber, to ensure that
the revolver is unloaded.
(III) Remove the firearm safety device required to be sold with
the handgun. If the firearm safety device prevents any of the
previous steps, remove the firearm safety device during the
appropriate step.
(IV) Load one bright orange dummy round into a chamber of the
cylinder, close the loading gate and rotate the cylinder so that the
round is in the next-to-fire position.
(V) Open the loading gate and unload the revolver.
(VI) Visually and physically inspect each chamber to ensure that
the revolver is unloaded.
(VII) Apply the firearm safety device, if applicable.
(E) The recipient shall receive instruction regarding how to
render that handgun safe in the event of a jam.
(F) The firearms dealer shall sign and date an affidavit stating
that the requirements of subparagraph (D) have been met. The
firearms dealer shall additionally obtain the signature of the
handgun purchaser on the same affidavit. The firearms dealer shall
retain the original affidavit as proof of compliance with this
requirement.
(G) The recipient shall perform the safe handling demonstration
for a department certified instructor.
(H) No demonstration shall be required if the dealer is returning
the handgun to the owner of the handgun.
(I) Department certified instructors who may administer the safe
handling demonstration shall meet the requirements set forth in
subdivision (j) of Section 12804.
(J) The persons who are exempt from the requirements of
subdivision (b) of Section 12801, pursuant to Section 12807, are also
exempt from performing the safe handling demonstration.
(9) Commencing July 1, 1992, the licensee shall offer to provide
the purchaser or transferee of a firearm, or person being loaned a
firearm, with a copy of the pamphlet described in Section 12080 and
may add the cost of the pamphlet, if any, to the sales price of the
firearm.
(10) The licensee shall not commit an act of collusion as defined
in Section 12072.
(11) The licensee shall post conspicuously within the licensed
premises a detailed list of each of the following:
(A) All charges required by governmental agencies for processing
firearm transfers required by Sections 12076, 12082, and 12806.
(B) All fees that the licensee charges pursuant to Sections 12082
and 12806.
(12) The licensee shall not misstate the amount of fees charged by
a governmental agency pursuant to Sections 12076, 12082, and 12806.
(13) The licensee shall report the loss or theft of any firearm
that is merchandise of the licensee, any firearm that the licensee
takes possession of pursuant to Section 12082, or any firearm kept at
the licensee's place of business within 48 hours of discovery to the
appropriate law enforcement agency in the city, county, or city and
county where the licensee's business premises are located.
(14) In a city and county, or in the unincorporated area of a
county with a population of 200,000 persons or more according to the
most recent federal decennial census or within a city with a
population of 50,000 persons or more according to the most recent
federal decennial census, any time the licensee is not open for
business, the licensee shall store all firearms kept in his or her
licensed place of business using one of the following methods as to
each particular firearm:
(A) Store the firearm in a secure facility that is a part of, or
that constitutes, the licensee's business premises.
(B) Secure the firearm with a hardened steel rod or cable of at
least one-eighth inch in diameter through the trigger guard of the
firearm. The steel rod or cable shall be secured with a hardened
steel lock that has a shackle. The lock and shackle shall be
protected or shielded from the use of a bolt cutter and the rod or
cable shall be anchored in a manner that prevents the removal of the
firearm from the premises.
(C) Store the firearm in a locked fireproof safe or vault in the
licensee's business premises.
(15) The licensing authority in an unincorporated area of a county
with a population of less than 200,000 persons according to the most
recent federal decennial census or within a city with a population
of less than 50,000 persons according to the most recent federal
decennial census may impose the requirements specified in paragraph
(14).
(16) Commencing January 1, 1994, the licensee shall, upon the
issuance or renewal of a license, submit a copy of the same to the
Department of Justice.
(17) The licensee shall maintain and make available for inspection
during business hours to any peace officer, authorized local law
enforcement employee, or Department of Justice employee designated by
the Attorney General, upon the presentation of proper
identification, a firearms transaction record.
(18) (A) On the date of receipt, the licensee shall report to the
Department of Justice in a format prescribed by the department the
acquisition by the licensee of the ownership of a pistol, revolver,
or other firearm capable of being concealed upon the person.
(B) The provisions of this paragraph shall not apply to any of the
following transactions:
(i) A transaction subject to the provisions of subdivision (n) of
Section 12078.
(ii) The dealer acquired the firearm from a wholesaler.
(iii) The dealer is also licensed as a secondhand dealer pursuant
to Article 4 (commencing with Section 21625) of Chapter 9 of Division
8 of the Business and Professions Code.
(iv) The dealer acquired the firearm from a person who is licensed
as a manufacturer or importer to engage in those activities pursuant
to Chapter 44 (commencing with Section 921) of Title 18 of the
United States Code and any regulations issued pursuant thereto.
(v) The dealer acquired the firearm from a person who resides
outside this state who is licensed pursuant to Chapter 44 (commencing
with Section 921) of Title 18 of the United States Code and any
regulations issued pursuant thereto.
(19) The licensee shall forward in a format prescribed by the
Department of Justice, information as required by the department on
any firearm that is not delivered within the time period set forth in
Section 178.102 (c) of Title 27 of the Code of Federal Regulations.
(c) (1) As used in this article, "clear evidence of his or her
identity and age" means either of the following:
(A) A valid California driver's license.
(B) A valid California identification card issued by the
Department of Motor Vehicles.
(2) As used in this section, a "secure facility" means a building
that meets all of the following specifications:
(A) All perimeter doorways shall meet one of the following:
(i) A windowless steel security door equipped with both a dead
bolt and a doorknob lock.
(ii) A windowed metal door that is equipped with both a dead bolt
and a doorknob lock. If the window has an opening of five inches or
more measured in any direction, the window shall be covered with
steel bars of at least one-half inch diameter or metal grating of at
least nine gauge affixed to the exterior or interior of the door.
(iii) A metal grate that is padlocked and affixed to the licensee'
s premises independent of the door and doorframe.
(B) All windows are covered with steel bars.
(C) Heating, ventilating, air-conditioning, and service openings
are secured with steel bars, metal grating, or an alarm system.
(D) Any metal grates have spaces no larger than six inches wide
measured in any direction.
(E) Any metal screens have spaces no larger than three inches wide
measured in any direction.
(F) All steel bars shall be no further than six inches apart.
(3) As used in this section, "licensed premises," "licensed place
of business," "licensee's place of business," or "licensee's business
premises" means the building designated in the license.
(4) For purposes of paragraph (17) of subdivision (b):
(A) A "firearms transaction record" is a record containing the
same information referred to in subdivision (a) of Section 178.124,
Section 178.124a, and subdivision (e) of Section 178.125 of Title 27
of the Code of Federal Regulations.
(B) A licensee shall be in compliance with the provisions of
paragraph (17) of subdivision (b) if he or she maintains and makes
available for inspection during business hours to any peace officer,
authorized local law enforcement employee, or Department of Justice
employee designated by the Attorney General, upon the presentation of
proper identification, the bound book containing the same
information referred to in Section 178.124a and subdivision (e) of
Section 178.125 of Title 27 of the Code of Federal Regulations and
the records referred to in subdivision (a) of Section 178.124 of
Title 27 of the Code of Federal Regulations.
(d) Upon written request from a licensee, the licensing authority
may grant an exemption from compliance with the requirements of
paragraph (14) of subdivision (b) if the licensee is unable to comply
with those requirements because of local ordinances, covenants,
lease conditions, or similar circumstances not under the control of
the licensee.
(e) Except as otherwise provided in this subdivision, the
Department of Justice shall keep a centralized list of all persons
licensed pursuant to subparagraphs (A) to (E), inclusive, of
paragraph (1) of subdivision (a). The department may remove from
this list any person who knowingly or with gross negligence violates
this article. Upon removal of a dealer from this list, notification
shall be provided to local law enforcement and licensing authorities
in the jurisdiction where the dealer's business is located. The
department shall make information about an individual dealer
available, upon request, for one of the following purposes only:
(1) For law enforcement purposes.
(2) When the information is requested by a person licensed
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code for determining the validity of the license
for firearm shipments.
(3) When information is requested by a person promoting,
sponsoring, operating, or otherwise organizing a show or event as
defined in Section 178.100 of Title 27 of the Code of Federal
Regulations, or its successor, who possesses a valid certificate of
eligibility issued pursuant to Section 12071.1, if that information
is requested by the person to determine the eligibility of a
prospective participant in a gun show or event to conduct
transactions as a firearms dealer pursuant to subparagraph (B) of
paragraph (1) of subdivision (b). Information provided pursuant to
this paragraph shall be limited to information necessary to
corroborate an individual's current license status.
(f) The Department of Justice may inspect dealers to ensure
compliance with this article. The department may assess an annual
fee, not to exceed one hundred fifteen dollars ($115), to cover the
reasonable cost of maintaining the list described in subdivision (e),
including the cost of inspections. Dealers whose place of business
is in a jurisdiction that has adopted an inspection program to ensure
compliance with firearms
law shall be exempt from that portion of the department's fee that
relates to the cost of inspections. The applicant is responsible for
providing evidence to the department that the jurisdiction in which
the business is located has the inspection program.
(g) The Department of Justice shall maintain and make available
upon request information concerning the number of inspections
conducted and the amount of fees collected pursuant to subdivision
(f), a listing of exempted jurisdictions, as defined in subdivision
(f), the number of dealers removed from the centralized list defined
in subdivision (e), and the number of dealers found to have violated
this article with knowledge or gross negligence.
(h) Paragraph (14) or (15) of subdivision (b) shall not apply to a
licensee organized as a nonprofit public benefit or mutual benefit
corporation organized pursuant to Part 2 (commencing with Section
5110) or Part 3 (commencing with Section 7110) of Division 2 of the
Corporations Code, if both of the following conditions are satisfied:
(1) The nonprofit public benefit or mutual benefit corporation
obtained the dealer's license solely and exclusively to assist that
corporation or local chapters of that corporation in conducting
auctions or similar events at which firearms are auctioned off to
fund the activities of that corporation or the local chapters of the
corporation.
(2) The firearms are not pistols, revolvers, or other firearms
capable of being concealed upon the person.
SEC. 177. Section 12078 of the Penal Code is amended to read:
12078. (a) (1) The waiting periods described in Sections 12071,
12072, and 12084 shall not apply to deliveries, transfers, or sales
of firearms made to persons properly identified as full-time paid
peace officers as defined in Chapter 4.5 (commencing with Section
830) of Title 3 of Part 2, provided that the peace officers are
authorized by their employer to carry firearms while in the
performance of their duties. Proper identification is defined as
verifiable written certification from the head of the agency by which
the purchaser or transferee is employed, identifying the purchaser
or transferee as a peace officer who is authorized to carry firearms
while in the performance of his or her duties, and authorizing the
purchase or transfer. The certification shall be delivered to the
dealer or local law enforcement agency acting pursuant to Section
12084 at the time of purchase or transfer and the purchaser or
transferee shall identify himself or herself as the person authorized
in the certification. The dealer or local law enforcement agency
shall keep the certification with the record of sale, or LEFT, as the
case may be. On the date that the delivery, sale, or transfer is
made, the dealer delivering the firearm or the law enforcement agency
processing the transaction pursuant to Section 12084 shall forward
by prepaid mail to the Department of Justice a report of the
transaction pursuant to subdivision (b) or (c) of Section 12077 or
Section 12084. If electronic or telephonic transfer of applicant
information is used, on the date that the application to purchase is
completed, the dealer delivering the firearm shall transmit to the
Department of Justice an electronic or telephonic report of the
transaction as is indicated in subdivision (b) or (c) of Section
12077.
(2) Subdivision (b) of Section 12801 and the preceding provisions
of this article do not apply to deliveries, transfers, or sales of
firearms made to authorized law enforcement representatives of
cities, counties, cities and counties, or state or federal
governments for exclusive use by those governmental agencies if,
prior to the delivery, transfer, or sale of these firearms, written
authorization from the head of the agency authorizing the transaction
is presented to the person from whom the purchase, delivery, or
transfer is being made. Proper written authorization is defined as
verifiable written certification from the head of the agency by which
the purchaser or transferee is employed, identifying the employee as
an individual authorized to conduct the transaction, and authorizing
the transaction for the exclusive use of the agency by which he or
she is employed. Within 10 days of the date a pistol, revolver, or
other firearm capable of being concealed upon the person is acquired
by the agency, a record of the same shall be entered as an
institutional weapon into the Automated Firearms System (AFS) via the
California Law Enforcement Telecommunications System (CLETS) by the
law enforcement or state agency. Those agencies without access to
AFS shall arrange with the sheriff of the county in which the agency
is located to input this information via this system.
(3) Subdivision (b) of Section 12801 and the preceding provisions
of this article do not apply to the loan of a firearm made by an
authorized law enforcement representative of a city, county, or city
and county, or the state or federal government to a peace officer
employed by that agency and authorized to carry a firearm for the
carrying and use of that firearm by that peace officer in the course
and scope of his or her duties.
(4) Subdivision (b) of Section 12801 and the preceding provisions
of this article do not apply to the delivery, sale, or transfer of a
firearm by a law enforcement agency to a peace officer pursuant to
Section 10334 of the Public Contract Code. Within 10 days of the
date that a pistol, revolver, or other firearm capable of being
concealed upon the person is sold, delivered, or transferred pursuant
to Section 10334 of the Public Contract Code to that peace officer,
the name of the officer and the make, model, serial number, and other
identifying characteristics of the firearm being sold, transferred,
or delivered shall be entered into the Automated Firearms System
(AFS) via the California Law Enforcement Telecommunications System
(CLETS) by the law enforcement or state agency that sold,
transferred, or delivered the firearm. Those agencies without access
to AFS shall arrange with the sheriff of the county in which the
agency is located to input this information via this system.
(5) Subdivision (b) of Section 12801 and the preceding provisions
of this article do not apply to the delivery, sale, or transfer of a
firearm by a law enforcement agency to a retiring peace officer who
is authorized to carry a firearm pursuant to Section 12027.1. Within
10 days of the date that a pistol, revolver, or other firearm
capable of being concealed upon the person is sold, delivered, or
transferred to that retiring peace officer, the name of the officer
and the make, model, serial number, and other identifying
characteristics of the firearm being sold, transferred, or delivered
shall be entered into the Automated Firearms System (AFS) via the
California Law Enforcement Telecommunications System (CLETS) by the
law enforcement or state agency that sold, transferred, or delivered
the firearm. Those agencies without access to AFS shall arrange with
the sheriff of the county in which the agency is located to input
this information via this system.
(6) Subdivision (d) of Section 12072 and subdivision (b) of
Section 12801 do not apply to sales, deliveries, or transfers of
firearms to authorized representatives of cities, cities and
counties, counties, or state or federal governments for those
governmental agencies where the entity is acquiring the weapon as
part of an authorized, voluntary program where the entity is buying
or receiving weapons from private individuals. Any weapons acquired
pursuant to this paragraph shall be disposed of pursuant to the
applicable provisions of Section 12028 or 12032.
(7) Subdivision (d) of Section 12072 and subdivision (b) of
Section 12801 shall not apply to the sale, loan, delivery, or
transfer of a firearm made by an authorized law enforcement
representative of a city, county, city and county, state, or the
federal government to any public or private nonprofit historical
society, museum, or institutional collection or the purchase or
receipt of that firearm by that public or private nonprofit
historical society, museum, or institutional collection if all of the
following conditions are met:
(A) The entity receiving the firearm is open to the public.
(B) The firearm prior to delivery is deactivated or rendered
inoperable.
(C) The firearm is not subject to Section 12028, 12028.5, 12030,
or 12032.
(D) The firearm is not prohibited by other provisions of law from
being sold, delivered, or transferred to the public at large.
(E) Prior to delivery, the entity receiving the firearm submits a
written statement to the law enforcement representative stating that
the firearm will not be restored to operating condition, and will
either remain with that entity, or if subsequently disposed of, will
be transferred in accordance with the applicable provisions of this
article and, if applicable, Section 12801.
(F) Within 10 days of the date that the firearm is sold, loaned,
delivered, or transferred to that entity, the name of the government
entity delivering the firearm, and the make, model, serial number,
and other identifying characteristics of the firearm and the name of
the person authorized by the entity to take possession of the firearm
shall be reported to the department in a manner prescribed by the
department.
(G) In the event of a change in the status of the designated
representative, the entity shall notify the department of a new
representative within 30 days.
(8) Subdivision (d) of Section 12072 and subdivision (b) of
Section 12801 shall not apply to the sale, loan, delivery, or
transfer of a firearm made by any person other than a representative
of an authorized law enforcement agency to any public or private
nonprofit historical society, museum, or institutional collection if
all of the following conditions are met:
(A) The entity receiving the firearm is open to the public.
(B) The firearm is deactivated or rendered inoperable prior to
delivery.
(C) The firearm is not of a type prohibited from being sold,
delivered, or transferred to the public.
(D) Prior to delivery, the entity receiving the firearm submits a
written statement to the person selling, loaning, or transferring the
firearm stating that the firearm will not be restored to operating
condition, and will either remain with that entity, or if
subsequently disposed of, will be transferred in accordance with the
applicable, provisions of this article and, if applicable, Section
12801.
(E) If title to a handgun is being transferred to the public or
private nonprofit historical society, museum, or institutional
collection, then the designated representative of that public or
private historical society, museum, or institutional collection
within 30 days of taking possession of that handgun, shall forward by
prepaid mail or deliver in person to the Department of Justice, a
single report signed by both parties to the transaction, that
includes information identifying the person representing that public
or private historical society, museum, or institutional collection,
how title was obtained and from whom, and a description of the
firearm in question, along with a copy of the written statement
referred to in subparagraph (D). The report forms that are to be
completed pursuant to this paragraph shall be provided by the
Department of Justice.
(F) In the event of a change in the status of the designated
representative, the entity shall notify the department of a new
representative within 30 days.
(b) (1) Section 12071, subdivisions (c) and (d) of Section 12072,
and subdivision (b) of Section 12801 shall not apply to deliveries,
sales, or transfers of firearms between or to importers and
manufacturers of firearms licensed to engage in that business
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto.
(2) Subdivision (b) of Section 12801 shall not apply to the
delivery, sale, or transfer of a handgun to a person licensed
pursuant to Section 12071, where the licensee is receiving the
handgun in the course and scope of his or her activities as a person
licensed pursuant to Section 12071.
(c) (1) Subdivision (d) of Section 12072 shall not apply to the
infrequent transfer of a firearm that is not a pistol, revolver, or
other firearm capable of being concealed upon the person by gift,
bequest, intestate succession, or other means by one individual to
another if both individuals are members of the same immediate family.
(2) Subdivision (d) of Section 12072 shall not apply to the
infrequent transfer of a pistol, revolver, or other firearm capable
of being concealed upon the person by gift, bequest, intestate
succession, or other means by one individual to another if both
individuals are members of the same immediate family and both of the
following conditions are met:
(A) The person to whom the firearm is transferred shall, within 30
days of taking possession of the firearm, forward by prepaid mail or
deliver in person to the Department of Justice, a report that
includes information concerning the individual taking possession of
the firearm, how title was obtained and from whom, and a description
of the firearm in question. The report forms that individuals
complete pursuant to this paragraph shall be provided to them by the
Department of Justice.
(B) If taking possession of the firearm prior to January 1, 2003,
the person taking title to the firearm shall first obtain a basic
firearms safety certificate. If taking possession on or after
January 1, 2003, the person taking title to the firearm shall first
obtain a handgun safety certificate.
(3) As used in this subdivision, "immediate family member" means
any one of the following relationships:
(A) Parent and child.
(B) Grandparent and grandchild.
(d) (1) Subdivision (d) of Section 12072 shall not apply to the
infrequent loan of firearms between persons who are personally known
to each other for any lawful purpose, if the loan does not exceed 30
days in duration and, when the firearm is a handgun, commencing
January 1, 2003, the individual being loaned the handgun has a valid
handgun safety certificate.
(2) Subdivision (d) of Section 12072, and subdivision (b) of
Section 12801 shall not apply to the loan of a firearm where all of
the following conditions exist:
(A) The person loaning the firearm is at all times within the
presence of the person being loaned the firearm.
(B) The loan is for a lawful purpose.
(C) The loan does not exceed three days in duration.
(D) The individual receiving the firearm is not prohibited from
owning or possessing a firearm pursuant to Section 12021 or 12021.1
of this code, or by Section 8100 or 8103 of the Welfare and
Institutions Code.
(E) The person loaning the firearm is 18 years of age or older.
(F) The person being loaned the firearm is 18 years of age or
older.
(e) Section 12071, subdivisions (c) and (d) of Section 12072, and
subdivision (b) of Section 12801 shall not apply to the delivery of a
firearm to a gunsmith for service or repair, or to the return of the
firearm to its owner by the gunsmith.
(f) Subdivision (d) of Section 12072 shall not apply to the sale,
delivery, or transfer of firearms by persons who reside in this state
to persons who reside outside this state who are licensed pursuant
to Chapter 44 (commencing with Section 921) of Title 18 of the United
States Code and the regulations issued pursuant thereto, if the
sale, delivery, or transfer is in accordance with Chapter 44
(commencing with Section 921) of Title 18 of the United States Code
and the regulations issued pursuant thereto.
(g) (1) Subdivision (d) of Section 12072 shall not apply to the
infrequent sale or transfer of a firearm, other than a pistol,
revolver, or other firearm capable of being concealed upon the
person, at auctions or similar events conducted by nonprofit mutual
or public benefit corporations organized pursuant to the Corporations
Code.
As used in this paragraph, the term "infrequent" shall not be
construed to prohibit different local chapters of the same nonprofit
corporation from conducting auctions or similar events, provided the
individual local chapter conducts the auctions or similar events
infrequently. It is the intent of the Legislature that different
local chapters, representing different localities, be entitled to
invoke the exemption created by this paragraph, notwithstanding the
frequency with which other chapters of the same nonprofit corporation
may conduct auctions or similar events.
(2) Subdivision (d) of Section 12072 shall not apply to the
transfer of a firearm other than a pistol, revolver, or other firearm
capable of being concealed upon the person, if the firearm is
donated for an auction or similar event described in paragraph (1)
and the firearm is delivered to the nonprofit corporation immediately
preceding, or contemporaneous with, the auction or similar event.
(3) The waiting period described in Sections 12071 and 12072 shall
not apply to a dealer who delivers a firearm other than a pistol,
revolver, or other firearm capable of being concealed upon the
person, at an auction or similar event described in paragraph (1), as
authorized by subparagraph (C) of paragraph (1) of subdivision (b)
of Section 12071. Within two business days of completion of the
application to purchase, the dealer shall forward by prepaid mail to
the Department of Justice a report of the same as is indicated in
subdivision (c) of Section 12077. If the electronic or telephonic
transfer of applicant information is used, within two business days
of completion of the application to purchase, the dealer delivering
the firearm shall transmit to the Department of Justice an electronic
or telephonic report of the same as is indicated in subdivision (c)
of Section 12077.
(h) Subdivision (d) of Section 12072 and subdivision (b) of
Section 12801 shall not apply to the loan of a firearm to a person 18
years of age or older for the purposes of shooting at targets if the
loan occurs on the premises of a target facility that holds a
business or regulatory license or on the premises of any club or
organization organized for the purposes of practicing shooting at
targets upon established ranges, whether public or private, if the
firearm is at all times kept within the premises of the target range
or on the premises of the club or organization.
(i) (1) Subdivision (d) of Section 12072 shall not apply to a
person who takes title or possession of a firearm that is not a
pistol, revolver, or other firearm capable of being concealed upon
the person by operation of law if the person is not prohibited by
Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the
Welfare and Institutions Code from possessing firearms.
(2) Subdivision (d) of Section 12072 shall not apply to a person
who takes title or possession of a pistol, revolver, or other firearm
capable of being concealed upon the person by operation of law if
the person is not prohibited by Section 12021 or 12021.1 of this code
or Section 8100 or 8103 of the Welfare and Institutions Code from
possessing firearms and all of the following conditions are met:
(A) If the person taking title or possession is neither a levying
officer as defined in Section 481.140, 511.060, or 680.210 of the
Code of Civil Procedure, nor a person who is receiving that firearm
pursuant to subparagraph (G), (I), or (J) of paragraph (2) of
subdivision (u), the person shall, within 30 days of taking
possession, forward by prepaid mail or deliver in person to the
Department of Justice, a report of information concerning the
individual taking possession of the firearm, how title or possession
was obtained and from whom, and a description of the firearm in
question. The reports that individuals complete pursuant to this
paragraph shall be provided to them by the department.
(B) If the person taking title or possession is receiving the
firearm pursuant to subparagraph (G) of paragraph (2) of subdivision
(u), the person shall do both of the following:
(i) Within 30 days of taking possession, forward by prepaid mail
or deliver in person to the department, a report of information
concerning the individual taking possession of the firearm, how title
or possession was obtained and from whom, and a description of the
firearm in question. The reports that individuals complete pursuant
to this paragraph shall be provided to them by the department.
(ii) Prior to taking title or possession of the firearm, if title
or possession is taken prior to January 1, 2003, the person shall
either obtain a basic firearms safety certificate or be exempt from
obtaining a basic firearms safety certificate pursuant to Section
12081. Prior to taking title or possession of the firearm, if title
or possession is taken on or after January 1, 2003, the person shall
obtain a handgun safety certificate.
(C) Where the person receiving title or possession of the pistol,
revolver, or other firearm capable of being concealed upon the person
is a person described in subparagraph (I) of paragraph (2) of
subdivision (u), on the date that the person is delivered the
firearm, the name and other information concerning the person taking
possession of the firearm, how title or possession of the firearm was
obtained and from whom, and a description of the firearm by make,
model, serial number, and other identifying characteristics, shall be
entered into the Automated Firearms System (AFS) via the California
Law Enforcement Telecommunications System (CLETS) by the law
enforcement or state agency that transferred or delivered the
firearm. Those agencies without access to AFS shall arrange with the
sheriff of the county in which the agency is located to input this
information via this system.
(D) Where the person receiving title or possession of the pistol,
revolver, or other firearm capable of being concealed upon the person
is a person described in subparagraph (J) of paragraph (2) of
subdivision (u), on the date that the person is delivered the
firearm, the name and other information concerning the person taking
possession of the firearm, how title or possession of the firearm was
obtained and from whom, and a description of the firearm by make,
model, serial number, and other identifying characteristics, shall be
entered into the AFS via the CLETS by the law enforcement or state
agency that transferred or delivered the firearm. Those agencies
without access to AFS shall arrange with the sheriff of the county in
which the agency is located to input this information via this
system. In addition, that law enforcement agency shall not deliver
that pistol, revolver, or other firearm capable of being concealed
upon the person to the person referred to in this subparagraph if
delivery takes place prior to January 1, 2003, unless, prior to the
delivery of the same, the person presents proof to the agency that he
or she is the holder of a basic firearms safety certificate or is
exempt from obtaining a basic firearms safety certificate pursuant to
Section 12081, or, commencing January 1, 2003, is the holder of a
handgun safety certificate.
(3) Subdivision (d) of Section 12072 shall not apply to a person
who takes possession of a firearm by operation of law in a
representative capacity who subsequently transfers ownership of the
firearm to himself or herself in his or her individual capacity. In
the case of a pistol, revolver, or other firearm capable of being
concealed upon the person, on and after April 1, 1994, and until
January 1, 2003, that individual shall have a basic firearms safety
certificate in order for the exemption set forth in this paragraph to
apply. Commencing January 1, 2003, the exemption shall not apply,
and the individual shall obtain a handgun safety certificate prior to
transferring ownership to himself or herself, or taking possession
of a handgun in an individual capacity.
(j) Subdivision (d) of Section 12072 and subdivision (b) of
Section 12801 shall not apply to deliveries, transfers, or returns of
firearms made pursuant to Section 12028, 12028.5, or 12030.
(k) Section 12071, subdivision (c) of Section 12072, and
subdivision (b) of Section 12801 shall not apply to any of the
following:
(1) The delivery, sale, or transfer of unloaded firearms that are
not pistols, revolvers, or other firearms capable of being concealed
upon the person by a dealer to another dealer upon proof that the
person receiving the firearm is licensed pursuant to Section 12071.
(2) The delivery, sale, or transfer of unloaded firearms by
dealers to persons who reside outside this state who are licensed
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto.
(3) The delivery, sale, or transfer of unloaded firearms to a
wholesaler if the firearms are being returned to the wholesaler and
are intended as merchandise in the wholesaler's business.
(4) The delivery, sale, or transfer of unloaded firearms by one
dealer to another dealer if the firearms are intended as merchandise
in the receiving dealer's business upon proof that the person
receiving the firearm is licensed pursuant to Section 12071.
(5) The delivery, sale, or transfer of an unloaded firearm that is
not a pistol, revolver, or other firearm capable of being concealed
upon the person by a dealer to himself or herself.
(6) The loan of an unloaded firearm by a dealer who also operates
a target facility that holds a business or regulatory license on the
premises of the building designated in the license or whose building
designated in the license is on the premises of any club or
organization organized for the purposes of practicing shooting at
targets upon established ranges, whether public or private, to a
person at that target facility or that club or organization, if the
firearm is at all times kept within the premises of the target range
or on the premises of the club or organization.
(l) A person who is exempt from subdivision (d) of Section 12072
or is otherwise not required by law to report his or her acquisition,
ownership, or disposal of a pistol, revolver, or other firearm
capable of being concealed upon the person or who moves out of this
state with his or her pistol, revolver, or other firearm capable of
being concealed upon the person may submit a report of the same to
the Department of Justice in a format prescribed by the department.
(m)
Subdivision (d) of Section 12072 and subdivision (b) of Section 12801
shall not apply to the delivery, sale, or transfer of unloaded
firearms to a wholesaler as merchandise in the wholesaler's business
by manufacturers or importers licensed to engage in that business
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto,
or by another wholesaler, if the delivery, sale, or transfer is made
in accordance with Chapter 44 (commencing with Section 921) of Title
18 of the United States Code.
(n) (1) The waiting period described in Section 12071 or 12072
shall not apply to the delivery, sale, or transfer of a pistol,
revolver, or other firearm capable of being concealed upon the person
by a dealer in either of the following situations:
(A) The dealer is delivering the firearm to another dealer and it
is not intended as merchandise in the receiving dealer's business.
(B) The dealer is delivering the firearm to himself or herself and
it is not intended as merchandise in his or her business.
(2) In order for this subdivision to apply, both of the following
shall occur:
(A) If the dealer is receiving the firearm from another dealer,
the dealer receiving the firearm shall present proof to the dealer
delivering the firearm that he or she is licensed pursuant to Section
12071.
(B) Whether the dealer is delivering, selling, or transferring the
firearm to himself or herself or to another dealer, on the date that
the application to purchase is completed, the dealer delivering the
firearm shall forward by prepaid mail to the Department of Justice a
report of the same and the type of information concerning the
purchaser or transferee as is indicated in subdivision (b) of Section
12077. Where the electronic or telephonic transfer of applicant
information is used, on the date that the application to purchase is
completed, the dealer delivering the firearm shall transmit an
electronic or telephonic report of the same and the type of
information concerning the purchaser or transferee as is indicated in
subdivision (b) of Section 12077.
(o) Section 12071 and subdivisions (c) and (d) of Section 12072
shall not apply to the delivery, sale, or transfer of firearms
regulated pursuant to Section 12020, Chapter 2 (commencing with
Section 12200), or Chapter 2.3 (commencing with Section 12275), if
the delivery, sale, or transfer is conducted in accordance with the
applicable provisions of Section 12020, Chapter 2 (commencing with
Section 12200), or Chapter 2.3 (commencing with Section 12275).
(p) (1) Paragraph (3) of subdivision (a) and subdivision (d) of
Section 12072 shall not apply to the loan of a firearm that is not a
pistol, revolver, or other firearm capable of being concealed upon
the person to a minor, with the express permission of the parent or
legal guardian of the minor, if the loan does not exceed 30 days in
duration and is for a lawful purpose.
(2) Paragraph (3) of subdivision (a) of Section 12072, subdivision
(d) of Section 12072, and subdivision (b) of Section 12801 shall not
apply to the loan of a pistol, revolver, or other firearm capable of
being concealed upon the person to a minor by a person who is not
the parent or legal guardian of the minor if all of the following
circumstances exist:
(A) The minor has the written consent of his or her parent or
legal guardian that is presented at the time of, or prior to the time
of, the loan, or is accompanied by his or her parent or legal
guardian at the time the loan is made.
(B) The minor is being loaned the firearm for the purpose of
engaging in a lawful, recreational sport, including, but not limited
to, competitive shooting, or agricultural, ranching, or hunting
activity, or a motion picture, television, or video production, or
entertainment or theatrical event, the nature of which involves the
use of a firearm.
(C) The duration of the loan does not exceed the amount of time
that is reasonably necessary to engage in the lawful, recreational
sport, including, but not limited to, competitive shooting, or
agricultural, ranching, or hunting activity, or a motion picture,
television, or video production, or entertainment or theatrical
event, the nature of which involves the use of a firearm.
(D) The duration of the loan does not, in any event, exceed 10
days.
(3) Paragraph (3) of subdivision (a), subdivision (d) of Section
12072, and subdivision (b) of Section 12801 shall not apply to the
loan of a pistol, revolver, or other firearm capable of being
concealed upon the person to a minor by his or her parent or legal
guardian if both of the following circumstances exist:
(A) The minor is being loaned the firearm for the purposes of
engaging in a lawful, recreational sport, including, but not limited
to, competitive shooting, or agricultural, ranching, or hunting
activity, or a motion picture, television, or video production, or
entertainment or theatrical event, the nature of which involves the
use of a firearm.
(B) The duration of the loan does not exceed the amount of time
that is reasonably necessary to engage in the lawful, recreational
sport, including, but not limited to, competitive shooting, or
agricultural, ranching, or hunting activity, or a motion picture,
television, or video production, or entertainment or theatrical
event, the nature of which involves the use of a firearm.
(4) Paragraph (3) of subdivision (a) of Section 12072 shall not
apply to the transfer or loan of a firearm that is not a pistol,
revolver, or other firearm capable of being concealed upon the person
to a minor by his or her parent or legal guardian.
(5) Paragraph (3) of subdivision (a) of Section 12072 shall not
apply to the transfer or loan of a firearm that is not a pistol,
revolver, or other firearm capable of being concealed upon the person
to a minor by his or her grandparent who is not the legal guardian
of the minor if the transfer is done with the express permission of
the parent or legal guardian of the minor.
(6) Subparagraph (A) of paragraph (3) of subdivision (a) of
Section 12072 shall not apply to the sale of a handgun if both of the
following requirements are satisfied:
(A) The sale is to a person who is at least 18 years of age.
(B) The firearm is an antique firearm as defined in paragraph (16)
of subsection (a) of Section 921 of Title 18 of the United States
Code.
(q) Subdivision (d) of Section 12072 shall not apply to the loan
of a firearm that is not a pistol, revolver, or other firearm capable
of being concealed upon the person to a licensed hunter for use by
that licensed hunter for a period of time not to exceed the duration
of the hunting season for which that firearm is to be used.
(r) The waiting period described in Section 12071, 12072, or 12084
shall not apply to the delivery, sale, or transfer of a firearm to
the holder of a special weapons permit issued by the Department of
Justice issued pursuant to Section 12095, 12230, 12250, or 12305. On
the date that the application to purchase is completed, the dealer
delivering the firearm or the law enforcement agency processing the
transaction pursuant to Section 12084, shall forward by prepaid mail
to the Department of Justice a report of the same as described in
subdivision (b) or (c) of Section 12077 or Section 12084. If the
electronic or telephonic transfer of applicant information is used,
on the date that the application to purchase is completed, the dealer
delivering the firearm shall transmit to the Department of Justice
an electronic or telephonic report of the same as is indicated in
subdivision (b) or (c) of Section 12077.
(s) Subdivision (d) of Section 12072 and subdivision (b) of
Section 12801 shall not apply to the loan of an unloaded firearm or
the loan of a firearm loaded with blank cartridges, to a person 18
years of age or older, for use solely as a prop for a motion picture,
television, or video production or an entertainment or theatrical
event.
(t) (1) The waiting period described in Sections 12071, 12072, and
12084 shall not apply to the sale, delivery, loan, or transfer of a
firearm that is a curio or relic, as defined in Section 178.11 of
Title 27 of the Code of Federal Regulations, by a dealer or through a
law enforcement agency to a person who is licensed as a collector
pursuant to Chapter 44 (commencing with Section 921) of Title 18 of
the United States Code and the regulations issued pursuant thereto
who has a current certificate of eligibility issued to him or her by
the Department of Justice pursuant to Section 12071. On the date
that the delivery, sale, or transfer is made, the dealer delivering
the firearm or the law enforcement agency processing the transaction
pursuant to Section 12084, shall forward by prepaid mail to the
Department of Justice a report of the transaction pursuant to
subdivision (b) of Section 12077 or Section 12084. If the electronic
or telephonic transfer of applicant information is used, on the date
that the application to purchase is completed, the dealer delivering
the firearm shall transmit to the Department of Justice an
electronic or telephonic report of the transaction as is indicated in
subdivision (b) or (c) of Section 12077.
(2) Subdivision (d) of Section 12072 shall not apply to the
infrequent sale, loan, or transfer of a firearm that is not a pistol,
revolver, or other firearm capable of being concealed upon the
person, which is a curio or relic manufactured at least 50 years
prior to the current date, but not including replicas thereof, as
defined in Section 178.11 of Title 27 of the Code of Federal
Regulations.
(u) As used in this section:
(1) "Infrequent" has the same meaning as in paragraph (1) of
subdivision (c) of Section 12070.
(2) "A person taking title or possession of firearms by operation
of law" includes, but is not limited to, any of the following
instances wherein an individual receives title to, or possession of,
firearms:
(A) The executor or administrator of an estate if the estate
includes firearms.
(B) A secured creditor or an agent or employee thereof when the
firearms are possessed as collateral for, or as a result of, a
default under a security agreement under the Commercial Code.
(C) A levying officer, as defined in Section 481.140, 511.060, or
680.260 of the Code of Civil Procedure.
(D) A receiver performing his or her functions as a receiver if
the receivership estate includes firearms.
(E) A trustee in bankruptcy performing his or her duties if the
bankruptcy estate includes firearms.
(F) An assignee for the benefit of creditors performing his or her
functions as an assignee, if the assignment includes firearms.
(G) A transmutation of property consisting of firearms pursuant to
Section 850 of the Family Code.
(H) Firearms passing to a surviving spouse pursuant to Chapter 1
(commencing with Section 13500) of Part 2 of Division 8 of the
Probate Code.
(I) Firearms received by the family of a police officer or deputy
sheriff from a local agency pursuant to Section 50081 of the
Government Code.
(J) The transfer of a firearm by a law enforcement agency to the
person who found the firearm where the delivery is to the person as
the finder of the firearm pursuant to Article 1 (commencing with
Section 2080) of Chapter 4 of Division 3 of the Civil Code.
SEC. 178. The heading of Title 10.2 (commencing with Section
14125) of Part 4 of the Penal Code is amended to read:
TITLE 10.2. ASIAN PACIFIC ISLANDER ANTI-HATE CRIMES PROGRAM
SEC. 178.5. Section 2620.2 of the Probate Code is amended to read:
2620.2. (a) Whenever the conservator or guardian has failed to
file an account as required by Section 2620, the court shall require
that written notice be given to the conservator or guardian and the
attorney of record for the conservatorship or guardianship directing
the conservator or guardian to file an account and to set the account
for hearing before the court within 60 days of the date of the
notice or, if the conservator or guardian is a public agency, within
120 days of the date of the notice.
(b) Failure to file the account within the time specified in the
notice and any additional time allowed by the court under subdivision
(a), or within 45 days of actual receipt of the notice, whichever is
later, shall constitute a contempt of the authority of the court as
described in Section 1209 of the Code of Civil Procedure.
(c) If the conservator or guardian does not file an account and
set the account for hearing as required by Section 2620 the court
shall do one or more of the following:
(1) Remove the conservator or guardian as provided under Article 1
(commencing with Section 2650) of Chapter 9 of Part 4 of Division 4.
(2) Issue and serve a citation requiring a guardian or conservator
who does not file a required account to appear and show cause why
the guardian or conservator should not be punished for contempt. If
the guardian or conservator purposely evades personal service of the
citation, the guardian or conservator shall be removed from office.
(3) Suspend the powers of the conservator or guardian and appoint
a temporary conservator or guardian, who shall take possession of the
assets of the conservatorship or guardianship, investigate the
actions of the conservator or guardian, and petition for surcharge if
this is in the best interest of the ward or conservatee.
Compensation for the temporary conservator or guardian, and counsel
for the temporary conservator or guardian, shall be treated as a
surcharge against the conservator or guardian, and if unpaid shall be
considered a breach of condition of the bond, unless for good cause
shown the court finds that the temporary conservator or guardian, and
counsel for the temporary conservator or guardian, shall be
compensated from the estate.
(4) (A) Appoint legal counsel to represent the ward or conservatee
if the court has not suspended the powers of the conservator or
guardian and appoint a temporary conservator or guardian pursuant to
paragraph (3). Compensation for the counsel appointed for the ward
or conservatee shall be treated as a surcharge against the
conservator or guardian, and if unpaid shall be considered a breach
of a condition on the bond, unless for good cause shown the court
finds that counsel for the ward or conservatee shall be compensated
according to Section 1470. The court shall order the legal counsel
to do one or more of the following:
(i) Investigate the actions of the conservator or guardian, and
petition for surcharge if this is in the best interest of the ward or
conservatee.
(ii) Recommend to the court whether the conservator or guardian
should be removed.
(iii) Recommend to the court whether money or other property in
the estate should be deposited pursuant to Section 2453, 2453.5,
2454, or 2455 to be subject to withdrawal only upon authorization of
the court.
(B) After resolution of the matters for which legal counsel was
appointed in subparagraph (A), the court shall terminate the
appointment of legal counsel, unless the court determines that
continued representation of the ward or conservatee and the estate is
necessary and reasonable.
(5) Order that money or property in the estate be deposited
pursuant to Section 2453, 2453.5, 2454, or 2455 to be subject to
withdrawal only upon authorization of the court.
(6) Grant, upon ex parte application or such notice as the court
may require, time to file the account, not to exceed an additional 60
days after the expiration of the deadline described in subdivision
(a), where the court finds there is good cause and that the estate is
adequately bonded. After expiration of any extensions, if the
account has not been filed, the court shall take action as described
in paragraphs (1) to (5), inclusive.
(d) Subdivision (c) does not preclude the court from additionally
taking any other appropriate action in response to a failure to file
a proper accounting in a timely manner.
SEC. 179. Section 6122 of the Probate Code is amended to read:
6122. (a) Unless the will expressly provides otherwise, if after
executing a will the testator's marriage is dissolved or annulled,
the dissolution or annulment revokes all of the following:
(1) Any disposition or appointment of property made by the will to
the former spouse.
(2) Any provision of the will conferring a general or special
power of appointment on the former spouse.
(3) Any provision of the will nominating the former spouse as
executor, trustee, conservator, or guardian.
(b) If any disposition or other provision of a will is revoked
solely by this section, it is revived by the testator's remarriage to
the former spouse.
(c) In case of revocation by dissolution or annulment:
(1) Property prevented from passing to a former spouse because of
the revocation passes as if the former spouse failed to survive the
testator.
(2) Other provisions of the will conferring some power or office
on the former spouse shall be interpreted as if the former spouse
failed to survive the testator.
(d) For purposes of this section, dissolution or annulment means
any dissolution or annulment which would exclude the spouse as a
surviving spouse within the meaning of Section 78. A decree of legal
separation which does not terminate the status of husband and wife
is not a dissolution for purposes of this section.
(e) Except as provided in Section 6122.1, no change of
circumstances other than as described in this section revokes a will.
(f) Subdivisions (a) to (d), inclusive, do not apply to any case
where the final judgment of dissolution or annulment of marriage
occurs before January 1, 1985. That case is governed by the law in
effect prior to January 1, 1985.
SEC. 180. Section 615 of the Public Resources Code is amended to
read:
615. Grants awarded by the department, including, but not limited
to, those awarded pursuant to Division 9 (commencing with Section
9000), Division 10.2 (commencing with Section 10200), and Division
12.1 (commencing with Section 14500), are not subject to the State
Contract Act (Part 2 (commencing with Section 10100) of Division 2 of
the Public Contract Code) or Article 6 (commencing with Section 999)
of Chapter 6 of Division 4 of the Military and Veterans Code.
SEC. 181. Section 5095.2 of the Public Resources Code is amended
to read:
5095.2. As used in this chapter, the following terms have the
following meanings:
(a) "Active recreational purpose" means an activity that requires
athletic fields, courts, gymnasiums, or other recreational venues for
youth soccer, baseball, football, basketball, tennis, or swimming,
or any activity the department identifies as meeting this definition.
(b) "Department" means the Department of Parks and Recreation.
(c) "Director" means the Director of Parks and Recreation.
(d) "Facility" includes a place for organized team sports, outdoor
recreation, permanent play structures, and multipurpose structures
designed to meet the special recreational, educational, vocational,
and social needs of youth. "Facility" also includes the acquisition
of properties or development of venues for the furtherance of the
purposes of Section 5095.4 where existing state conservancies or
state, community, or regional parks are not readily accessible.
(e) "Fund" means the State Urban Parks and Healthy Communities
Fund.
(f) "Nonurbanized local agency" means any city, county, or
district that qualifies as a nonurbanized area as defined in
subdivision (e) of Section 5621 and that is eligible for grant
funding pursuant to Chapter 3.2 (commencing with Section 5620).
(g) "Special district" means a regional park district, regional
park and open-space district, or regional open-space district formed
pursuant to Article 3 (commencing with Section 5500) of Chapter 3, or
a recreation and park district formed pursuant to Chapter 4
(commencing with Section 5780).
(h) "State agency" includes the Department of Parks and Recreation
and the state conservancies in existence on the effective date of
the act adding this section during the 2001 portion of the 2001-02
Regular Session.
(i) "Urbanized or heavily urbanized local agencies" include
cities, counties, or a city and county, or special districts as
determined by the Department of Finance according to the latest
verifiable census data pursuant to subdivisions (c) and (d) of
Section 5621.
SEC. 182. The heading of Article 5 (commencing with Section
5096.652) of Chapter 1.696 of Division 2 of the Public Resources Code
is amended and renumbered to read:
Article 5.5. Historical and Cultural Resources Preservation
SEC. 183. Section 21158.6 of the Public Resources Code is amended
to read:
21158.6. (a) For a project in the City of Oakland that consists
of multiple-family residential development, or a residential and
commercial or retail mixed-use development with not more than 25
percent of the total floor area of the project utilized as retail
space, a focused environmental impact report may be prepared,
notwithstanding that the project was not identified in a master
environmental impact report, if all of the following conditions are
met:
(1) The Oakland City Council does both of the following:
(A) Authorizes the implementation of this section. The city
council may authorize the implementation of this section only by
voting to approve the practice of preparing focused environmental
impact reports for projects in the central business district housing
target areas specified in paragraph (11).
(B) Determines that the general plan, zoning ordinance, and
related policies and programs are consistent with principles that
encourage compact development in a manner that does both of the
following:
(i) Promotes efficient transportation systems, economic growth,
affordable housing, energy efficiency, and an appropriate balance of
jobs and housing.
(ii) Protects the environment, open space, and agricultural areas.
(2) The city submits a draft determination to the Office of
Planning and Research that the applicable general plan, zoning
ordinance, and any related policies and programs are consistent with
the principles described in subparagraph (B) of paragraph (1) prior
to the city council making its determination regarding that
consistency. The office may submit comments on the draft findings to
the city council within 30 days from the date that the city submits
the draft determination to the office.
(3) The city has an average population density of at least 5,000
persons per square mile.
(4) The project is consistent with the general plan, any
applicable specific plan and community plan, and zoning ordinance,
including any variance that is properly granted pursuant to that
zoning ordinance, an environmental impact report was prepared for the
general plan, and the application for the project is deemed complete
pursuant to Section 65943 of the Government Code within three years
of the date this section is effective.
(5) The lead agency cannot make the finding described in
subdivision (c) of Section 21157.1, a negative declaration or
mitigated negative declaration cannot be prepared pursuant to Section
21080, 21157.5, or 21158, and Section 21166 does not apply.
(6) The project meets one or both of the following conditions:
(A) The parcel on which the project is to be developed is
surrounded by immediately contiguous urban development.
(B) The parcel on which the project is to be developed is, or has
been previously, developed with urban uses.
(7) The density of the project is at least 40 units per net acre.
(8) The parcel on which the project is to be developed is within
one-half mile of an existing rail transit station.
(9) The project can be adequately served by existing utilities and
municipal services, and there will be adequate capacity for
infrastructure, utilities, and services to serve other projects
approved and proposed in the service area.
(10) The project does not include a single level building that
exceeds the square footage limitation specified in subdivision (a) of
Section 21158.5.
(11) The project is located in one of the following central
business district housing target areas:
(A) The Valdez cluster, which is bounded on the west by Telegraph
Avenue, on the south by 23rd Street, on the east by Harrison Street,
and on the north by 27th Street. A project located in this cluster
that meets the condition described in paragraph (8) may include a
portion up to one acre that does not meet that condition.
(B) The Uptown cluster, which is bounded on the west by Castro
Street, on the south by 14th Street from Castro Street to Jefferson
Street and 16th Street from Jefferson Street to Broadway, on the east
by Jefferson Street from 14th Street to 16th Street and Broadway
from 16th Street to 22nd Street, and on the north by 22nd Street.
(C) The 11th Street cluster, which is bounded by Franklin Street
from 12th Street to 15th Street, by Webster from 11th Street to 12th
Street, by Alice Street from 11th Street to 13th Street, by 12th
Street from Franklin Street to Webster Street, by 11th Street from
Webster Street to Alice Street and 13th Street from Alice Street to
Madison Street, and on the east by Madison Street from 13th Street to
15th Street, and on the north by 15th Street from Franklin Street to
Madison Street.
(D) The Old Oakland cluster, which is bounded on the west by
Castro Street, on the south by 7th Street, on the east by Broadway,
and on the north by 11th Street.
(b) A focused environmental impact report prepared pursuant to
this section shall be limited to a discussion of potentially
significant effects on the environment specific to the project. No
discussion shall be required of alternatives to the project,
cumulative impacts of the project, or the growth inducing impacts of
the project.
(c) (1) On or before July 1, 2004, the city shall submit a report
to the Office of Planning and Research that includes, but that is not
necessarily limited to, all of the following information:
(A) The number of focused environmental impact reports prepared
pursuant to this section.
(B) The types of projects for which focused environmental impact
reports were prepared pursuant to this section.
(C) The time periods for preparing each of the focused
environmental impact reports prepared pursuant to this section, and
for acting on each project from the date that the application was
deemed complete.
(D) A description of any
alternatives to a project, cumulative impacts of a project, growth
inducing impacts of a project, or other issues that may have been
identified and analyzed if an environmental document, other than a
focused environmental impact report, had been prepared for the
project.
(2) Prior to submitting the report to the office pursuant to
paragraph (1), the city shall hold at least one public hearing and
shall respond to oral and written comments regarding the draft
report. The city shall include the comments and responses in the
final report.
(d) This section shall remain in effect only until January 1,
2005, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2005, deletes or extends
that date.
SEC. 183.5. Section 21167.7 of the Public Resources Code is
amended to read:
21167.7. Every person who brings an action pursuant to Section
21167 shall comply with the requirements of Section 388 of the Code
of Civil Procedure. Every such person shall also furnish pursuant to
Section 388 of the Code of Civil Procedure a copy of any amended or
supplemental pleading filed by such person in such action to the
Attorney General. No relief, temporary or permanent, shall be
granted until a copy of the pleading has been furnished to the
Attorney General in accordance with such requirements.
SEC. 184. Section 25403.5 of the Public Resources Code is amended
to read:
25403.5. (a) The commission shall, by July 1, 1978, adopt
standards by regulation for a program of electrical load management
for each utility service area. In adopting the standards, the
commission shall consider, but need not be limited to, the following
load management techniques:
(1) Adjustments in rate structure to encourage use of electrical
energy at off-peak hours or to encourage control of daily electrical
load. Compliance with those adjustments in rate structure shall be
subject to the approval of the Public Utilities Commission in a
proceeding to change rates or service.
(2) End use storage systems which store energy during off-peak
periods for use during peak periods.
(3) Mechanical and automatic devices and systems for the control
of daily and seasonal peakloads.
(b) The standards shall be cost-effective when compared with the
costs for new electrical capacity, and the commission shall find them
to be technologically feasible. Any expense or any capital
investment required of a utility by the standards shall be an
allowable expense or an allowable item in the utility rate base and
shall be treated by the Public Utilities Commission as allowable in a
rate proceeding.
The commission may determine that one or more of the load
management techniques are infeasible and may delay their adoption.
If the commission determines that any techniques are infeasible to
implement, it shall make a finding in each instance stating the
grounds upon which the determination was made and the actions it
intends to take to remove the impediments to implementation.
(c) The commission may also grant, upon application by a utility,
an exemption from the standards or a delay in implementation. The
grant of an exemption or delay shall be accompanied by a statement of
findings by the commission indicating the grounds for the exemption
or delay. Exemption or delay shall be granted only upon a showing of
extreme hardship, technological infeasibility, lack of
cost-effectiveness, or reduced system reliability and efficiency.
(d) This section does not apply to proposed sites and related
facilities for which a notice of intent or an application requesting
certification has been filed with the commission prior to the
effective date of the standards.
SEC. 185. Section 31007 of the Public Resources Code is amended to
read:
31007. "Coastal restoration project" means any action taken by a
local public agency or the conservancy to correct undesirable
development patterns in the coastal zone.
SEC. 186. Section 42645 of the Public Resources Code is amended to
read:
42645. (a) The board, in consultation with the State Department
of Education, the State Board of Education, and the Secretary for
Education, shall establish a program to provide grants to school
districts and schools to assist in the development and implementation
of educational programs and to promote the use of existing
educational programs to teach the concepts of source reduction,
recycling, and composting.
(b) The board, in consultation with the State Department of
Education, the Board of Education, and the Secretary for Education,
shall adopt criteria for awarding grants pursuant to this article,
including, but not limited to, the grant's structure, the schedule
for awarding grants, and grant amount limits. This criteria shall
include, but not be limited to, a procedure for the geographic
distribution of the grants and the appropriate representation of
elementary, middle, and high school as grant recipients. In adopting
this criteria, the board shall include, in the criteria, the extent
to which an office, a school district, or a school has demonstrated a
commitment to achieving the following goals:
(1) The adoption of waste reduction and recycling programs and
practices.
(2) The adoption and implementation of the unified education
strategy adopted pursuant to Section 42603.
(3) The allocation of adequate space for the safe collection,
storage, and loading of recyclable materials.
(4) To the maximum extent feasible, the use of recycled materials
and environmentally preferable products in the construction or
modernization of public school facilities.
(5) Participation in the environmental ambassador pilot program
established pursuant to Section 51226.4 of the Education Code.
(c) Notwithstanding Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code, the adoption
of criteria for the awarding of grants pursuant to this article is
not the adoption of a regulation, and is exempt from the requirements
of that chapter.
SEC. 187. Section 71040 of the Public Resources Code is amended to
read:
71040. (a) The Secretary for Environmental Protection shall
establish permit assistance centers throughout the state to provide
businesses and other entities with assistance in complying with laws
and regulations implemented by every board, department, and office
within the California Environmental Protection Agency. Each permit
assistance center shall, to the extent feasible, incorporate permit
assistance activities of local and federal entities and of other
entities of the state into its operations.
(b) In addition to the centers authorized pursuant to subdivision
(a), the secretary shall establish an electronic online permit
assistance center through the Internet. The electronic online permit
assistance center shall be available for use by any business or
other entity subject to a law or regulation implemented by a board,
department, or office within the California Environmental Protection
Agency, and shall provide a business or other entity with assistance
in complying with those laws and regulations. The center, which
shall be called the "California Government-On Line to Desktops" or
"CALGOLD" program, shall provide special software, "hotlinks" and
other online resources and tools that may be used by a business or
other entity to streamline and expedite compliance with laws and
regulations implemented by a board, department, or office within the
California Environmental Protection Agency. The CALGOLD program
shall, to the extent feasible, incorporate permit assistance
activities of local and federal entities and of other entities of the
state into its operations.
(c) The Secretary for Environmental Protection shall report
annually, no later than December 1 with respect to the previous
fiscal year, to the Governor and the Legislature on the number of
permits issued, expedited, or otherwise streamlined by each center;
the number and types of businesses assisted by each center; and how
the assistance provided to businesses has improved environmental
protection. The secretary, in consultation with the Secretary of
Technology, Trade and Commerce, shall report on the permit assistance
activities of both agencies and shall make recommendations to ensure
that these activities are coordinated and nonduplicative.
SEC. 188. Section 331 of the Public Utilities Code is amended to
read:
331. The definitions set forth in this section shall govern the
construction of this chapter.
(a) "Aggregator" means any marketer, broker, public agency, city,
county, or special district, that combines the loads of multiple
end-use customers in facilitating the sale and purchase of electric
energy, transmission, and other services on behalf of these
customers.
(b) "Broker" means an entity that arranges the sale and purchase
of electric energy, transmission, and other services between buyers
and sellers, but does not take title to any of the power sold.
(c) "Direct transaction" means a contract between any one or more
electric generators, marketers, or brokers of electric power and one
or more retail customers providing for the purchase and sale of
electric power or any ancillary services.
(d) "Fire wall" means the line of demarcation separating
residential and small commercial customers from all other customers
as described in subdivision (e) of Section 367.
(e) "Marketer" means any entity that buys electric energy,
transmission, and other services from traditional utilities and other
suppliers, and then resells those services at wholesale or to an
end-use customer.
(f) "Microcogeneration facility" means a cogeneration facility of
less than one megawatt.
(g) "Restructuring trusts" means the two tax-exempt public benefit
trusts established by Decision 96-08-038 of the Public Utilities
Commission to provide for design and development of the hardware and
software systems for the Power Exchange and the Independent System
Operator, respectively, and that may undertake other activities, as
needed, as ordered by the commission.
(h) "Small commercial customer" means a customer that has a
maximum peak demand of less than 20 kilowatts.
SEC. 189. Section 332.1 of the Public Utilities Code is amended to
read:
332.1. (a) (1) It is the intent of the Legislature to enact Item
1 (revised) on the commission's August 21, 2000 agenda, entitled
"Opinion Modifying Decision (D.) D.00-06-034 and D.00-08-021 to
Regarding Interim Rate Caps for San Diego Gas and Electric Company,"
as modified below.
(2) It is also the intent of the Legislature that to the extent
that the Federal Energy Regulatory Commission orders refunds to
electrical corporations pursuant to their findings, the commission
shall ensure that any refunds are returned to customers.
(b) The commission shall establish a ceiling of six and
five-tenths cents ($0.065) per kilowatthour on the energy component
of electric bills for electricity supplied to residential, small
commercial, and street lighting customers by the San Diego Gas and
Electric Company, through December 31, 2002, retroactive to June 1,
2000. If the commission finds it in the public interest, this
ceiling may be extended through December 2003 and may be adjusted as
provided in subdivision (d).
(c) The commission shall establish an accounting procedure to
track and recover reasonable and prudent costs of providing electric
energy to retail customers unrecovered through retail bills due to
the application of the ceiling provided for in subdivision (b). The
accounting procedure shall utilize revenues associated with sales of
energy from utility-owned or managed generation assets to offset an
undercollection, if undercollection occurs. The accounting procedure
shall be reviewed periodically by the commission, but not less
frequently than semiannually. The commission may utilize an existing
proceeding to perform the review. The accounting procedure and
review shall provide a reasonable opportunity for San Diego Gas and
Electric Company to recover its reasonable and prudent costs of
service over a reasonable period of time.
(d) If the commission determines that it is in the public interest
to do so, the commission, after the date of the completion of the
proceeding described in subdivision (g), may adjust the ceiling from
the level specified in subdivision (b), and may adjust the frozen
rate from the levels specified in subdivision (f), consistent with
the Legislature's intent to provide substantial protections for
customers of the San Diego Gas and Electric Company and their
interest in just and reasonable rates and adequate service.
(e) For purposes of this section, "small commercial customer"
includes, but is not limited to, all San Diego Gas and Electric
Company accounts on Rate Schedule A of the San Diego Gas and Electric
Company, all accounts of customers who are "general acute care
hospitals," as defined in Section 1250 of the Health and Safety Code,
all San Diego Gas and Electric Company accounts of customers who are
public or private schools for pupils in kindergarten or any of
grades 1 to 12, inclusive, and all accounts on Rate Schedule AL-TOU
under 100 kilowatts.
(f) The commission shall establish an initial frozen rate of six
and five-tenths cents ($0.065) per kilowatthour on the energy
component of electric bills for electricity supplied to all customers
by the San Diego Gas and Electric Company not subject to subdivision
(b), for the time period ending with the end of the rate freeze for
the Pacific Gas and Electric Company and the Southern California
Edison Company pursuant to Section 368, retroactive to February 7,
2001. The commission shall consider the comparable energy components
of rates for comparable customer classes served by the Pacific Gas
and Electric Company and the Southern California Edison Company and,
if it determines it to be in the public interest, the commission may
adjust this frozen rate, and may do so, retroactive to the date that
rate increases took effect for customers of Pacific Gas and Electric
Company and Southern California Edison Company pursuant to the
commission's March 27, 2001, decision. The commission shall
determine the Fixed Department of Water Resources Set-Aside pursuant
to Section 360.5 for customers subject to this section, reflecting a
retail rate consistent with the rate for the energy component of
electric bills as determined in this subdivision, in place of the
retail rate in effect on January 5, 2001. This section shall be
construed to modify the payment provisions, but may not be construed
to modify the electric procurement obligations of the Department of
Water Resources, pursuant to any contract or agreement in accordance
with Division 27 (commencing with Section 80000) of the Water Code,
and in effect as of February 7, 2001, between the Department of Water
Resources and San Diego Gas and Electric Company.
(g) The commission shall institute a proceeding to examine the
prudence and reasonableness of the San Diego Gas and Electric Company
in the procurement of wholesale energy on behalf of its customers,
for a period beginning, at the latest, on June 1, 2000. If the
commission finds that San Diego Gas and Electric Company acted
imprudently or unreasonably, the commission shall issue orders that
it determines to be appropriate affecting the retail rates of San
Diego Gas and Electric Company customers including, but not limited
to, refunds.
(h) Nothing in this section may be construed to limit the
authority of the Department of Water Resources pursuant to Division
27 (commencing with Section 80000) of the Water Code.
SEC. 190. Section 332.2 of the Public Utilities Code, as added by
Section 2 of Chapter 5 of the 2001-02 First Extraordinary Session, is
amended to read:
332.2. Rates set by the commission that are subject to
subdivision (f) of Section 332.1 may not result in any retroactive
recovery of undercollections by the San Diego Gas and Electric
Company. Any undercollection resulting from the retroactive rate
reductions ordered pursuant to this chapter, retroactive to February
7, 2001, may not result in a revenue undercollection to San Diego Gas
and Electric Company.
SEC. 191. Section 332.2 of the Public Utilities Code, as added by
Section 2 of Chapter 6 of the 2001-02 First Extraordinary Session, is
amended to read:
332.2. Rates set by the commission that are subject to
subdivision (f) of Section 332.1 may not result in any retroactive
recovery of undercollections by the San Diego Gas and Electric
Company. Any undercollection resulting from the retroactive rate
reductions ordered pursuant to this chapter, retroactive to February
7, 2001, may not result in a revenue undercollection to San Diego Gas
and Electric Company.
SEC. 192. Section 399.6 of the Public Utilities Code, as amended
by Section 1 of Chapter 774 of the Statutes of 2001, is amended to
read:
399.6. (a) In order to optimize public investment and ensure that
the most cost-effective and efficient investments in renewable
resources are vigorously pursued, the Energy Commission shall create
an investment plan as set forth in paragraphs (1) to (3), inclusive,
to govern the allocation of funds provided pursuant to this article.
The Energy Commission's long-term goal shall be a fully competitive
and self-sustaining California renewable energy supply. The
investment plan shall be in accordance with all of the following:
(1) The investment plan's objective shall be to increase, in the
near term, the quantity of California's electricity generated by
in-state renewable energy resources, while protecting system
reliability, fostering resource diversity, and obtaining the greatest
environmental benefits for California residents.
(2) An additional objective of the plan shall be to identify and
support emerging renewable energy technologies that have the greatest
near-term commercial promise and that merit targeted assistance.
(3) The investment plan shall contain specific numerical targets,
reflecting the projected impact of the plan, for both of the
following:
(A) Increased quantity of California electrical generation
produced from emerging technologies and from overall renewable
resources.
(B) Increased supply of renewable generation available from
facilities other than those selling to investor-owned utilities under
contracts entered into prior to 1996 under the federal Public
Utilities Regulatory Policies Act of 1978 (P.L. 95-617).
(b) The Energy Commission shall, on an annual basis, evaluate
progress on meeting the targets set forth in subparagraphs (A) and
(B) of paragraph (3) of subdivision (a), or any substitute provisions
adopted by the Legislature upon review of the investment plan, and
assess the impact of the investment plan on reducing the cost to
Californians of renewable energy generation.
(c) In preparing these investment plans, the Energy Commission
shall recommend allocations among all of the following:
(1) (A) Except as provided in subparagraph (B), production
incentives for new renewable energy, including repowered or
refurbished renewable energy.
(B) Allocations may not be made for renewable energy that is
generated by a project that remains under a power purchase contract
with an electrical corporation originally entered into prior to
September 24, 1996, whether amended or restated thereafter.
(C) Notwithstanding subparagraph (B), production incentives for
incremental new, repowered, or refurbished renewable energy from
existing projects under a power purchase contract with an electrical
corporation originally entered into prior to September 24, 1996,
whether amended or restated thereafter, may be allowed in any month,
if all of the following occur:
(i) The project's power purchase contract provides that all energy
delivered and sold under the contract is paid at a price that does
not exceed commission-approved short-run avoided cost of energy.
(ii) Either of the following:
(I) The power purchase contract is amended to provide that the
kilowatthours used to determine the capacity payment in any
time-of-delivery period in any month under the contract shall be
equal to the actual kilowatthour production, but no greater than the
five-year average of the kilowatthours delivered for the
corresponding time-of-delivery period and month, in the years 1994 to
1998, inclusive.
(II) If a project's installed capacity as of December 31, 1998, is
less than 75 percent of the nameplate capacity as stated in the
power purchase contract, the power purchase contract is amended to
provide that the kilowatthours used to determine the capacity payment
in any time-of-delivery period in any month under the contract shall
be equal to the actual kilowatthour production, but no greater than
the product of the five-year average of the kilowatthours delivered
for the corresponding time-of-delivery period and month, in the years
1994 to 1998, inclusive, and the ratio of installed capacity as of
December 31 of the previous year, but not to exceed contract
nameplate capacity, to the installed capacity as of December 31,
1998.
(iii) The production incentive is payable only with respect to the
kilowatthours delivered in a particular month that exceeds the
corresponding five-year average calculated pursuant to clause (ii).
(2) Rebates, buydowns, or equivalent incentives for emerging
renewable technologies.
(3) Customer credits for renewables not under contract with a
utility.
(4) Customer education.
(5) Incentives for reducing fuel costs that are confirmed to the
satisfaction of the Energy Commission at solid fuel biomass energy
facilities in order to provide demonstrable environmental and public
benefits, including, but not limited to, air quality.
(6) Solar thermal generating resources that enhance the
environmental value or reliability of the electrical system and that
require financial assistance to remain economically viable, as
determined by the Energy Commission. The Energy Commission may
require financial disclosure from applicants for purposes of this
paragraph.
(7) Specified fuel cell technologies, if the Energy Commission
makes all of the following findings:
(A) The specified technologies have similar or better air
pollutant characteristics than renewable technologies in the
investment plan.
(B) The specified technologies require financial assistance to
become commercially viable by reference to wholesale generation
prices.
(C) The specified technologies could contribute significantly to
the infrastructure development or other innovation required to meet
the long-term objective of a self-sustaining, competitive supply of
renewable energy.
(8) Existing wind-generating resources, if the Energy Commission
finds that the existing wind-generating resources are a
cost-effective source of reliable and environmental benefits compared
with other eligible sources, and that the existing wind-generating
resources require financial assistance to remain economically viable,
as determined by the Energy Commission. The Energy Commission may
require financial disclosure from applicants for the purposes of this
paragraph.
(d) The commission shall establish a cap on the aggregate amount
of funds that may be awarded to public entities from the program that
provides customer credits for renewables. The intent of the cap is
to assure adequate funding of credits for residential and small
commercial customers.
(e) Notwithstanding any other provision of law, moneys collected
for renewable energy pursuant to this article shall be transferred to
the Renewable Resource Trust Fund of the Energy Commission, to be
held until further action by the Legislature. The Energy Commission
shall prepare and submit to the Legislature, on or before March 31,
2001, an initial investment plan for these moneys, addressing the
application of moneys collected between January 1, 2002, and January
1, 2007. The initial investment plan shall also include an
evaluation of and report to the Legislature regarding the
appropriateness and structure of a mandatory state purchase of
renewable energy. On or before March 31, 2006, the Energy Commission
shall prepare an investment plan proposing the application of moneys
collected between January 1, 2007, and January 1, 2012. No moneys
may be expended in the years covered by these plans without further
legislative action.
SEC. 193. Section 2774.5 of the Public Utilities Code is amended
to read:
2774.5. An electrical corporation or local publicly owned
electric utility, as defined in subdivision (d) of Section 9604,
shall immediately notify the Commissioner of the California Highway
Patrol, the Office of Emergency Services, and the sheriff and any
affected chief of police of the specific area within their respective
law enforcement jurisdictions that will sustain a planned loss of
power as soon as the planned loss becomes known as to when and where
that power loss will occur. The notification shall include common
geographical boundaries, grid or block numbers of the affected area,
and the next anticipated power loss area designated by the electrical
corporation or public entity during rotating blackouts.
SEC. 194. Section 3350 of the Public Utilities Code is amended to
read:
3350. In evaluating the eligibility for financing of additional
generation facilities, the authority shall utilize the Energy
Commission's and the Independent System Operator's, or their
successor's, information relating to the need for additional
generating facilities and their forecasts of electric supply and
demand for the state.
SEC. 195. Section 170016 of the Public Utilities Code is amended
to read:
170016. (a) The permanent board shall be established pursuant to
this section. The board shall consist of nine members, with three
members serving in an executive committee.
(b) The following three members shall comprise the executive
committee:
(1) A member of the public who shall be appointed by the Board of
Supervisors of the County of San Diego and shall be a resident of an
unincorporated area of the county. The initial term for this member
shall be two years.
(2) A member of the public who shall be appointed by the Governor
and confirmed by the Senate, shall reside in the County of San Diego,
but not within the City of San Diego. The initial term for this
member, upon confirmation of the Senate, shall be six years.
(3) A member of the public who shall be appointed by the
Mayor of the City of San Diego and shall be confirmed by a majority
vote of the San Diego City Council. The initial term for this member
shall be four years.
(c) The remaining six members of the board shall be as follows:
(1) The Mayor of the City of San Diego, or a member of the city
council designated by the mayor to be his or her alternate.
(2) A member of the public appointed by the Mayor of the City of
San Diego. The initial term for this member shall be two years.
(3) The mayor of the most populous city, as of the most recent
decennial census, among the north area cities. If that mayor
declines to serve, he or she shall appoint a member of the public who
is a resident of one of the north area cities. The initial term for
this member shall be two years.
(4) (A) If the member serving under paragraph (3) is a mayor, then
a member of the public selected by the mayors of the north area
cities from one of those cities, excluding the most populous city.
(B) If the person serving under paragraph (3) is not a mayor, then
the mayors of the north area cities shall select a mayor or council
member of a north area city, excluding the most populous city, to
serve as the member.
(C) The initial term for this member shall be four years.
(5) The mayor of the most populous city, as of the most recent
decennial census, among the south area cities. If that mayor
declines to serve, he or she shall appoint a member of the public who
is a resident of one of the south area cities. The initial term for
this member shall be six years.
(6) (A) If the member serving under paragraph (5) is a mayor, then
a member of the public selected by the mayors of the south area
cities from one of those cities, excluding the most populous city.
(B) If the person serving under paragraph (5) is not a mayor, then
the mayors of the south area cities shall select a mayor or council
member of a south area city, excluding the most populous city, to
serve as the member.
(C) The initial term for this member shall be four years.
(d) The initial chair shall be the person appointed to the board
pursuant to paragraph (2) of subdivision (b). Thereafter, the
executive committee shall appoint the chair, who shall serve for a
two-year portion of his or her term as a board member, upon
confirmation of the full board. A chair may be appointed to
consecutive terms, subject to confirmation of the full board.
(e) (1) Members appointed to the first board shall be appointed on
or before October 31, 2002, and shall be seated as the board on
December 2, 2002.
(2) Any appointment not filled by the respective appointing
authority on or before December 1, 2002, shall be filled by
appointment by the Governor, consistent with the eligibility
requirements of this section for that membership position.
(f) (1) After the initial term, all terms shall be four years,
except as otherwise required under subdivision (b) of Section 170018.
(2) The expiration date of the term of office shall be the first
Monday in December in the year in which the term is to expire.
SEC. 196. Section 170018 of the Public Utilities Code is amended
to read:
170018. (a) The appointing authority for a member whose term has
expired shall appoint that member's successor for a full term of four
years.
(b) The membership of any member serving on the board as a result
of holding another public office shall terminate when the member
ceases holding the other public office.
(c) Any vacancy in the membership of the board shall be filled for
the expired term by a person selected by the appointing authority
for that position.
SEC. 197. Section 62.1 of the Revenue and Taxation Code is amended
to read:
62.1. (a) Change in ownership shall not include the following:
(1) Any transfer, on or after January 1, 1985, of a mobilehome
park to a nonprofit corporation, stock cooperative corporation,
limited equity stock cooperative, or other entity formed by the
tenants of a mobilehome park, for the purpose of purchasing the
mobilehome park, provided that, with respect to any transfer of a
mobilehome park on or after January 1, 1989, subject to this
paragraph, the individual tenants who were renting at least 51
percent of the spaces in the mobilehome park prior to the transfer
participate in the transaction through the ownership of an aggregate
of at least 51 percent of the voting stock of, or other ownership or
membership interests in, the entity which acquires the park. If, on
or after January 1, 1998, a park is acquired by an entity that did
not attain an initial tenant participation level of at least 51
percent on the date of the transfer, the entity shall have up to one
year after the date of the transfer to attain a tenant participation
level of at least 51 percent. If an individual tenant notifies the
county assessor of the intention to comply with the conditions set
forth in the preceding sentence, the mobilehome park may not be
reappraised by the assessor during that period. However, if a tenant
participation level of at least 51 percent is not attained within
the one-year period, the county assessor shall thereafter levy escape
assessments for the mobilehome park transfer.
(2) Any transfer or transfers on or after January 1, 1985, of
rental spaces in a mobilehome park to the individual tenants of the
rental spaces, provided that (1) at least 51 percent of the rental
spaces are purchased by individual tenants renting their spaces prior
to purchase, and (2) the individual tenants of these spaces form,
within one year after the first purchase of a rental space by an
individual tenant, a resident organization as described in
subdivision (l) of Section 50781 of the Health and Safety Code, to
operate and maintain the park. If, on or after January 1, 1985, an
individual tenant or tenants notify the county assessor of the
intention to comply with the conditions set forth in the preceding
sentence, any mobilehome park rental space that is purchased by an
individual tenant in that mobilehome park during that period shall
not be reappraised by the assessor. However, if all of the
conditions set forth in the first sentence of this paragraph are not
satisfied, the county assessor shall thereafter levy escape
assessments for the spaces so transferred. This paragraph shall
apply only to those rental mobilehome parks that have been in
operation for five years or more.
(b) (1) If the transfer of a mobilehome park has been excluded
from a change in ownership pursuant to paragraph (1) of subdivision
(a) and the park has not been converted to condominium, stock
cooperative ownership, or limited equity cooperative ownership, any
transfer on or after January 1, 1989, of shares of the voting stock
of, or other ownership or membership interests in, the entity that
acquired the park in accordance with paragraph (1) of subdivision (a)
shall be a change in ownership of a pro rata portion of the real
property of the park unless the transfer is for the purpose of
converting the park to condominium, stock cooperative ownership, or
limited equity cooperative ownership or is excluded from change in
ownership by Section 62, 63, or 63.1.
(2) For the purposes of this subdivision, "pro rata portion of the
real property" means the total real property of the mobilehome park
multiplied by a fraction consisting of the number of shares of voting
stock, or other ownership or membership interests, transferred
divided by the total number of outstanding issued or unissued shares
of voting stock of, or other ownership or membership interests in,
the entity that acquired the park in accordance with paragraph (1) of
subdivision (a).
(3) Any pro rata portion or portions of real property that changed
ownership pursuant to this subdivision may be separately assessed as
provided in Section 2188.10.
(4) (A) Notwithstanding any other provision of law, after an
exclusion under subdivision (a), the assessor may not levy any escape
or supplemental assessment with respect to any change in ownership
of a pro rata portion of the real property of the mobilehome park
that occurred between January 1, 1989, and January 1, 2002, and for
which the assessor did not, prior to January 1, 2000, levy any
assessments. However, commencing with the January 1, 2002, lien
date, the assessor shall correct the base year value of the pro rata
portion of the real property of the park to properly reflect these
changes in ownership. A mobilehome park shall provide information
requested by the assessor that is necessary to correct the base year
value of the property for purposes of this paragraph.
(B) When an assessor corrects the base year value of the real
property of the park pursuant to subparagraph (A), the assessor shall
notify parks that residents may be eligible for property tax
assistance programs offered by either the Controller or the Franchise
Tax Board for senior citizens, or blind or disabled persons.
(C) Any outstanding taxes that were levied between January 1,
2000, and January 1, 2002, as a result of a pro rata change in
ownership as described in subparagraph (A) shall be canceled.
However, there shall be no refund of taxes, as so levied, that were
paid prior to January 1, 2002.
(5) A mobilehome park that does not utilize recorded deeds to
transfer ownership interest in the spaces or lots shall file, by
February 1 of each year, a report with the county assessor's office
containing all of the following information:
(A) The full name and mailing address of each owner, stockholder,
or holder of an ownership interest in the mobilehome park.
(B) The situs address, including space number, of each unit.
(C) The date that the ownership interest was acquired.
(D) If the unit is a manufactured home, the Department of Housing
and Community Development decal number or serial number, or both, and
whether the manufactured home is subject to the vehicle license fee
or the local property tax.
(6) Within 30 days of a change in ownership, the new resident
owner or other purchaser or transferee of a mobilehome within a
mobilehome park that does not utilize recorded deeds to transfer
ownership interest in the spaces or lots shall file a change in
ownership statement described in either Section 480 or 480.2.
(7) Failure to comply with the reporting requirement described in
paragraph (5) shall result in a penalty pursuant to Section 482.
(c) It is the intent of the Legislature that, in order to
facilitate affordable conversions of mobilehome parks to tenant
ownership, paragraph (1) of subdivision (a) apply to all bona fide
transfers of rental mobilehome parks to tenant ownership, including,
but not limited to, those parks converted to tenant ownership as a
nonprofit corporation made on or after January 1, 1985.
SEC. 198. Section 756 of the Revenue and Taxation Code is amended
to read:
756. (a) On or before July 31, the board shall transmit to each
county auditor a roll showing the unitary and operating nonunitary
assessments made by the board in the county and the nonoperating
nonunitary assessments made by the board in each city and revenue
district in the county; provided, however, that the roll need not
show the assessments made by the board in a revenue district which
did not levy a tax or assessment during the preceding year. The roll
is at all times, during office hours, open to the inspection of any
person representing any taxing agency or revenue district, or any
district described in Section 2131. If the roll does not show the
assessments in a revenue district as herein provided and a notice of
a proposed levy is furnished to the board in writing, on or before
January 1 preceding the fiscal year for which the levy is to be made,
the board shall furnish an estimate of the total assessed value of
nonoperating nonunitary state-assessed property in the district and
shall transmit thereafter to the county auditor a statement of roll
change showing the nonoperating nonunitary assessments made by the
board in the district.
(b) Notwithstanding subdivision (a), in making the roll referred
to in subdivision (a), the unitary value and nonunitary value of the
property of regulated railway companies and property subject to
subdivision (i) of Section 98.9 shall be enrolled by revenue
district.
SEC. 199. Section 11273 of the Revenue and Taxation Code is
amended to read:
11273. If any person required to file a report fails to file it
on or before April 30 or at the time as extended by the board, a
penalty of 10 percent of the assessed value shall be added to the
assessment.
If the assessee establishes to the satisfaction of the board that
the failure to file the property statement timely was due to a
reasonable cause and occurred notwithstanding the exercise of
ordinary care and the absence of willful neglect, the board shall
order the penalty abated, provided the assessee has filed with the
board written application for abatement of the penalty within the
time prescribed by law for filing a petition for reassessment.
SEC. 200. Section 12209 of the Revenue and Taxation Code is
amended to read:
12209. (a) For each year beginning on or after January 1, 1999,
and before January 1, 2007, there shall be allowed as a credit
against the amount of tax, as defined in Section 28 of Article XIII
of the California Constitution, an amount equal to 20 percent of the
amount of each qualified investment made by a taxpayer during the
year into a community development financial institution.
(b) For purposes of determining any tax that may be imposed under
Section 685 of the Insurance Code on a taxpayer not organized under
the laws of this state, the amount of the credit allowed by
subdivision (a) shall be treated as a tax paid under Section 12201 or
Section 28 of Article XIII of the California Constitution.
(c) Notwithstanding any other provision of this part, no credit
shall be allowed under this section unless the California Organized
Investment Network, or its successor within the Department of
Insurance, certifies that the investment described in subdivision (a)
qualifies for the credit under this section and certifies the total
amount of the credit allocated to the taxpayer pursuant to this
section. The aggregate amount of qualified investments made by all
taxpayers pursuant to this section, Section 17053.57, and Section
23657 shall not exceed ten million dollars ($10,000,000) for each
calendar year. However, if the aggregate amount of qualified
investments made in any calendar year is less than ten million
dollars ($10,000,000), the difference may be carried over to the next
year, and any succeeding year during which this section remains in
effect, and added to the aggregate amount authorized for those years.
(d) The community development financial institution shall do all
of the following:
(1) Apply to the Department of Insurance, California Organized
Investment Network, or its successor, for certification of its status
as a community development financial institution.
(2) Apply to the Department of Insurance, California Organized
Investment Network, or its successor, on behalf of the taxpayer for
certification of the amount of the investment and the credit amount
allocated to the taxpayer, obtain the certification, and retain a
copy of the certification.
(3) Obtain the taxpayer's California company identification number
for tax administration purposes and provide this information to the
Department of Insurance, California Organized Investment Network, or
its successor, with the application required in paragraph (2).
(4) Provide an annual listing to the State Board of Equalization,
in the form and manner agreed upon by the State Board of Equalization
and the Department of Insurance, California Organized Investment
Network, or its successor, of the names and taxpayer's California
company identification numbers of any taxpayer who makes any
withdrawal or partial withdrawal of a qualified investment before the
expiration of 60 months from the date of the qualified investment.
(e) The Department of Insurance, California Organized Investment
Network, or any successor thereof, shall do all of the following:
(1) Accept applications for certification from financial
institutions and issue certificates that the applicant is a community
development financial institution qualified to receive qualified
investments.
(2) Accept applications for certification from any community
development financial institution on behalf of the taxpayer and issue
certificates to taxpayers in an aggregate amount that shall not
exceed the limit specified in subdivision (c). The certificate shall
include the amount eligible to be made as an investment that
qualifies for the credit and the total amount of the credit to which
the taxpayer is entitled for the year. Certificates shall be issued
in the order that the applications are received.
(3) Provide an annual listing to the State Board of Equalization,
in the form or manner agreed upon by the State Board of Equalization
and the Department of Insurance, California Organized Investment
Network, or its successor, of the taxpayers who were issued
certificates, their respective National Association of Insurance
Commissioners company number and employer's tax identification
number, the amount of the qualified investment made by each taxpayer,
and the total amount of qualified investments.
(f) For purposes of this section:
(1) "Qualified investment" means a deposit or loan that does not
earn interest, or an equity investment, or an equity-like debt
instrument that conforms to the specifications for these instruments
as prescribed by the United States Department of the Treasury,
Community Development Financial Institutions Fund, or its successor.
All qualified investments must be equal to or greater than fifty
thousand dollars ($50,000) and made for a minimum duration of 60
months.
(2) "Community development financial institution" means a private
financial institution located in this state that is certified by the
Department of Insurance, California Organized Investment Network, or
its successor, that has community development as its primary mission,
and that lends in urban, rural, or reservation-based communities in
this state. A community development financial institution may
include a community development bank, a community development loan
fund, a community development credit union, a microenterprise fund, a
community development corporation-based lender, and a community
development venture fund.
(g) (1) If a qualified investment is withdrawn before the end of
the 60th month and not reinvested in another community development
financial institution within 60 days, there shall be added to the
"tax," as defined in Section 28 of Article XIII of the California
Constitution, for the year in which the withdrawal occurs, the entire
amount of any credit previously allowed under this section.
(2) If a qualified investment is reduced before the end of the
60th month, but not below fifty thousand dollars ($50,000), there
shall be added to the "tax," as defined in Section 28 of Article XIII
of the California Constitution, for the taxable year in which the
reduction occurs, an amount equal to 20 percent of the total
reduction for the year.
(h) In the case where the credit allowed by this section exceeds
the "tax," the excess may be carried over to reduce the "tax" for the
next four years, or until the credit has been exhausted, whichever
occurs first.
(i) The State Board of Equalization shall, as requested by the
Department of Insurance, California Organized Investment Network, or
its successor, advise and assist in the administration of this
section.
(j) This section shall remain in effect only until December 31,
2007, and as of that date is repealed.
SEC. 201. Section 17053.57 of the Revenue and Taxation Code is
amended to read:
17053.57. (a) For each taxable year beginning on or after January
1, 1997, and before January 1, 2007, there shall be allowed as a
credit against the amount of "net tax," as defined in Section 17039,
an amount equal to 20 percent of the amount of each qualified
investment made by a taxpayer during the taxable year into a
community development financial institution.
(b) Notwithstanding any other provision of this part, no credit
shall be allowed under this section unless the California Organized
Investment Network, or its successor within the Department of
Insurance, certifies that the investment described in subdivision (a)
qualifies for the credit under this section and certifies the total
amount of the credit allocated to the taxpayer pursuant to this
section. The aggregate amount of qualified investments made by all
taxpayers pursuant to this section, Section 12209, and Section 23657
shall not exceed ten million dollars ($10,000,000) for each calendar
year. However, if the aggregate amount of qualified investments made
in any calendar year is less than ten million dollars ($10,000,000),
the difference may be carried over to the next year, and any
succeeding year during which this section remains in effect, and
added to the aggregate amount authorized for those years.
(c) The Community Development Financial Institution shall do all
of the following:
(1) Apply to the Department of Insurance, California Organized
Investment Network, or its successor, for certification of its status
as a Community Development Financial Institution.
(2) Apply to the Department of Insurance, California Organized
Investment Network, or its successor, on behalf of the taxpayer for
certification of the amount of the investment and the credit amount
allocated to the taxpayer, obtain the certification, and retain a
copy of the certification.
(3) Obtain the taxpayer's identification number, or in the case of
a partnership, the taxpayer identification numbers of all the
partners for tax administration purposes and provide this information
to the Department of Insurance, California Organized Investment
Network, or its successor, with the application required in paragraph
(2).
(4) Provide an annual listing to the Franchise Tax Board, in the
form and manner agreed upon by the Franchise Tax Board and the
Department of Insurance, California Organized Investment Network, or
its successor, of the names and taxpayer identification numbers of
any taxpayer who makes any withdrawal or partial withdrawal of a
qualified investment before the expiration of 60 months from the date
of the qualified investment.
(d) The Department of Insurance, California Organized Investment
Network, or any successor thereof, shall do all of the following:
(1) Accept applications for certification from financial
institutions and issue certificates that the applicant is a Community
Development Financial Institution qualified to receive qualified
investments.
(2) Accept applications for certification from any Community
Development Financial Institution on behalf of the taxpayer and issue
certificates to taxpayers in an aggregate amount that shall not
exceed the limit specified in subdivision (b). The certificate shall
include the amount eligible to be made as an investment that
qualifies for the credit and the total amount of the credit to which
the taxpayer is entitled for the taxable year. Certificates shall be
issued in the order in which the applications are received.
(3) Provide an annual listing to the Franchise Tax Board, in a
form or manner agreed upon by the Franchise Tax Board and the
Department of Insurance, California Organized Investment Network, or
its successor, of the taxpayers who were issued certificates, their
respective tax identification numbers, the amount of the qualified
investment made by each taxpayer, and the total amount of all
qualified investments.
(e) For purposes of this section:
(1) "Qualified investment" means a deposit or loan that does not
earn interest, or an equity investment, or an equity-like debt
instrument that conforms to the specifications for these instruments
as prescribed by the United States Department of the Treasury,
Community Development Financial Institutions Fund, or its successor.
All qualified investments must be equal to or greater than fifty
thousand dollars ($50,000) and made for a minimum duration of 60
months.
(2) "Community development financial institution" means a private
financial institution located in this state that is certified by the
Department of Insurance, California Organized Investment Network, or
its successor, that has community development as its primary mission,
and that lends in urban, rural, or reservation-based communities in
this state. A community development financial institution may
include a community development bank, a community development loan
fund, a community development credit union, a microenterprise fund, a
community development corporation-based lender, and a community
development venture fund.
(f) (1) If a qualified investment is withdrawn before the end of
the 60th month and not reinvested in another Community Development
Financial Institution within 60 days, there shall be added to the
"net tax," as defined in Section 17039, for the taxable year in which
the withdrawal occurs, the entire amount of any credit previously
allowed under this section.
(2) If a qualified investment is reduced before the end of the
60th month, but not below fifty thousand dollars ($50,000), there
shall be added to the "net tax," as defined in Section 17039, for the
taxable year in which the reduction occurs, an amount equal to 20
percent of the total reduction for the taxable year.
(g) In the case where the credit allowed by this section exceeds
the "net tax," the excess may be carried over to reduce the "net tax"
for the next four taxable years, or until the credit has been
exhausted, whichever occurs first.
(h) The Franchise Tax Board shall, as requested by the Department
of Insurance, California Organized Investment Network, or its
successor, advise and assist in the administration of this section.
(i) This section shall remain in effect only until December 1,
2007, and as of that date is repealed.
SEC. 202. Section 17073 of the Revenue and Taxation Code is
amended to read:
17073. (a) Section 63 of the Internal Revenue Code, relating to
taxable income defined, shall apply, except as otherwise provided.
(b) The deduction allowed by Section 17208.1, relating to interest
on loans or financed indebtedness obtained from a publicly owned
utility for the purchase and installation of energy efficient
products or
equipment, may not be treated as a miscellaneous itemized deduction
under Section 67(a) of the Internal Revenue Code, relating to the
2-percent floor on miscellaneous deductions.
(c) For individuals who do not itemize deductions, the standard
deduction computed in accordance with Section 17073.5 shall be
allowed as a deduction in computing taxable income.
SEC. 203. Section 17942 of the Revenue and Taxation Code is
amended to read:
17942. (a) In addition to the tax imposed under Section 17941,
every limited liability company subject to tax under Section 17941
shall pay annually to this state a fee equal to:
(1) Nine hundred dollars ($900), if the total income from all
sources reportable to this state for the taxable year is two hundred
fifty thousand dollars ($250,000) or more, but less than five hundred
thousand dollars ($500,000).
(2) Two thousand five hundred dollars ($2,500), if the total
income from all sources reportable to this state for the taxable year
is five hundred thousand dollars ($500,000) or more, but less than
one million dollars ($1,000,000).
(3) Six thousand dollars ($6,000), if the total income from all
sources reportable to this state for the taxable year is one million
dollars ($1,000,000) or more, but less than five million dollars
($5,000,000).
(4) Eleven thousand seven hundred ninety dollars ($11,790), if the
total income from all sources reportable to this state for the
taxable year is five million dollars ($5,000,000) or more.
(5) This subdivision shall apply to taxable years beginning on or
after January 1, 1997.
(6) The changes made to this subdivision by the act adding this
paragraph shall apply to taxable years beginning on or after January
1, 2001.
(b) (1) For purposes of this section, "total income" means gross
income, as defined in Section 24271, plus the cost of goods sold that
are paid or incurred in connection with the trade or business of the
taxpayer. However, "total income" shall not include allocation or
attribution of income or gain or distributions made to a limited
liability company in its capacity as a member of, or holder of an
economic interest in, another limited liability company if the
allocation or attribution of income or gain or distributions are
directly or indirectly attributable to income that is subject to the
payment of the fee described in this section.
(2) In the event a taxpayer is a commonly controlled limited
liability company, the total income from all sources reportable to
this state, taking into account any election under Section 25110, may
be determined by the Franchise Tax Board to be the total income of
all the commonly controlled limited liability company members if it
determines that multiple limited liability companies were formed for
the primary purpose of reducing fees payable under this section. A
determination by the Franchise Tax Board under this subdivision may
only be made with respect to one limited liability company in a
commonly controlled group. However, each commonly controlled limited
liability company shall be jointly and severally liable for the fee.
For purposes of this section, commonly controlled limited liability
companies shall include the taxpayer and any other partnership or
limited liability company doing business (as defined in Section
23101) in this state and required to file a return under Section
18633 or 18633.5, in which the same persons own, directly or
indirectly, more than 50 percent of the capital interests or profits
interests.
(c) The fee assessed under this section shall be due and payable
on the date the return of the limited liability company is required
to be filed under Section 18633.5, shall be collected and refunded in
the same manner as the taxes imposed by this part, and shall be
subject to interest and applicable penalties.
SEC. 204. Section 18836 of the Revenue and Taxation Code is
amended to read:
18836. (a) An individual may designate on the tax return that a
contribution in excess of the tax liability, if any, be made to the
Lupus Foundation of America, California Chapters Fund, which is
established by Section 18837. That designation is to be used as a
voluntary contribution on the tax return.
(b) The contributions shall be in full dollar amounts and may be
made individually by each signatory on a joint return.
(c) A designation shall be made for any taxable year on the
initial return for that taxable year and once made is irrevocable.
If payments and credits reported on the return, together with any
other credits associated with the taxpayer's account, do not exceed
the taxpayer's liability, the return shall be treated as though no
designation has been made. If no designee is specified, the
contribution shall be transferred to the General Fund after
reimbursement of the direct actual costs of the Franchise Tax Board
for the collection and administration of funds under this article.
(d) If an individual designates a contribution to more than one
account or fund listed on the tax return, and the amount available is
insufficient to satisfy the total amount designated, the
contribution shall be allocated among the designees on a pro rata
basis.
(e) The Franchise Tax Board shall revise the form of the return to
include a space labeled the "Lupus Foundation of America, California
Chapters Fund" to allow for the designation permitted. The form
shall also include in the instructions information that the
contribution may be in the amount of one dollar ($1) or more and that
the contribution shall be used for lupus education, awareness, and
research.
(f) Notwithstanding any other provision, a voluntary contribution
designation for the Lupus Foundation of America, California Chapters
Fund may not be added on the tax return until another voluntary
contribution designation is removed.
(g) A deduction shall be allowed under Article 6 (commencing with
Section 17201) of Chapter 3 of Part 10 for any contribution made
pursuant to subdivision (a).
SEC. 205. Section 19551.1 of the Revenue and Taxation Code is
amended to read:
19551.1. (a) The Franchise Tax Board may permit the tax officials
of any city to obtain tax information pursuant to subdivision (a) of
Section 19551.
(b) The information furnished to tax officials of a city under
this section shall be limited as follows:
(1) When requested pursuant to a written agreement, the taxing
authority of a city may be granted tax information only with respect
to taxpayers with an address as reflected on the Franchise Tax Board'
s records within the jurisdictional boundaries of the city who report
income from a trade or business to the Franchise Tax Board.
(2) The tax information that may be provided by the Franchise Tax
Board to a city is limited to a taxpayer's name, address, social
security or taxpayer identification number, and business activity
code.
(3) Tax information provided to the taxing authority of a city may
not be furnished to, or used by, any person other than an employee
of that taxing authority.
(4) Section 19542 applies to this section.
(5) Section 19542.1 applies to this section.
(c) The Franchise Tax Board may not provide any information
pursuant to this section until all of the following have occurred:
(1) An agreement has been executed between a city and the
Franchise Tax Board, that provides that an amount equal to all first
year costs necessary to furnish the city information pursuant to this
section shall be received by the Franchise Tax Board before the
Franchise Tax Board incurs any costs associated with the activity
permitted by this section. For purposes of this section, first year
costs include costs associated with, but not limited to, the
purchasing of equipment, the development of processes, and labor.
(2) An agreement has been executed between a city and the
Franchise Tax Board, that provides that the annual costs incurred by
the Franchise Tax Board, as a result of the activity permitted by
this section, shall be reimbursed by the city to the board.
(3) Pursuant to the agreement described in paragraph (1), the
Franchise Tax Board has received an amount equal to the first year
costs.
(d) This section does not invalidate any other law. This section
does not preclude any city or, city and county, from obtaining
information about individual taxpayers, including those taxpayers
exempt from this section, by any other means permitted by state or
federal law.
(e) This section shall remain in effect only until December 31,
2008, and as of that date, is repealed.
SEC. 206. Section 20543 of the Revenue and Taxation Code is
amended to read:
20543. (a) (1) The amount of assistance for a claimant owning his
or her residential dwelling shall be based on the claimant's
household income for the period set forth in Section 20503.
(2) For claims filed with respect to the 2001 calendar year and
each calendar year thereafter, the percentage of assistance for which
each claimant owning his or her residential dwelling shall be
eligible based on the following scale:
The percentage of tax on
the
first $34,000 of full
value
If the total household income (as determined for tax
(as defined in this part) purposes) used to provide
is not more than: assistance is:
$8,812 .................................. 139%
9,400 .................................. 136
9,987 .................................. 133
10,575 .................................. 131
11,163 .................................. 128
11,750 .................................. 125
12,337 .................................. 122
12,925 .................................. 119
13,513 .................................. 116
14,101 .................................. 113
14,688 .................................. 110
15,275 .................................. 106
15,863 .................................. 100
16,451 .................................. 94
17,038 .................................. 88
17,626 .................................. 83
18,213 .................................. 77
18,800 .................................. 71
19,389 .................................. 65
19,976 .................................. 59
20,564 .................................. 54
21,151 .................................. 49
21,738 .................................. 45
22,327 .................................. 41
22,914 .................................. 36
23,500 .................................. 32
24,088 .................................. 29
24,675 .................................. 26
25,263 .................................. 23
25,851 .................................. 20
26,438 .................................. 17
27,908 .................................. 15
29,376 .................................. 12
30,846 .................................. 10
32,314 .................................. 9
33,783 .................................. 7
35,251 .................................. 6
(b) With respect to assistance that is provided by the Franchise
Tax Board pursuant to this chapter for the 2002 calendar year and
each year thereafter, the household income figures that apply to
assistance provided by the Franchise Tax Board during that period
shall be the household income figures that applied to assistance
provided by the Franchise Tax Board in the same period in the
immediately preceding year, multiplied by an inflation factor
calculated as follows:
(1) On or before February 1 of each year, the Department of
Industrial Relations shall transmit to the Franchise Tax Board the
percentage change in the California Consumer Price Index for all
items from June of the second preceding calendar year to June of the
immediately preceding calendar year.
(2) The Franchise Tax Board shall add 100 percent to the
percentage change figure that is furnished pursuant to paragraph (1)
and divide the result by 100.
(3) The Franchise Tax Board shall multiply the immediately
preceding household income figure by the inflation adjustment factor
determined in paragraph (2), and round off the resulting product to
the nearest one dollar ($1).
SEC. 207. Section 21015.6 of the Revenue and Taxation Code is
amended to read:
21015.6. (a) No levy may be made on the principal residence of
any innocent investor or the proceeds from the sale or other
transaction involving the principal residence of an innocent investor
upon notification to the Franchise Tax Board that the residence is
the principal residence of an innocent investor and substantiation of
both of the following:
(1) The basis for that levy is an underpayment of any tax imposed
under Part 10 (commencing with Section 17001) for any taxable year
ending on or before December 31, 2000, that is attributable to an
abusive tax shelter.
(2) The principal residence is owned by an innocent investor.
(b) Any state tax lien recorded under Chapter 14 (commencing with
Section 7150) of Division 7 of Title 1 of the Government Code,
including a state tax lien described under Section 522(c)(2)(B) of
Title 11 of the United States Code, relating to state tax liens after
bankruptcy, on the principal residence of an innocent investor shall
be released without satisfaction of the lien upon notification to
the Franchise Tax Board that the residence is the principal residence
of an innocent investor and substantiation of both of the following:
(1) The basis for that lien is an underpayment of any tax imposed
under Part 10 (commencing with Section 17001) for any taxable year
ending on or before December 31, 2000, that is attributable to an
abusive tax shelter.
(2) The owner of that principal residence is an innocent investor.
(c) For purposes of this section:
(1) "Abusive tax shelter" shall satisfy both of the following
requirements:
(A) Be a potentially abusive tax shelter within the meaning of
Section 6112 of the Internal Revenue Code.
(B) With respect to which either of the following has occurred:
(i) The Internal Revenue Service has imposed a penalty under
Section 6700 or 6701 of the Internal Revenue Code.
(ii) The Franchise Tax Board has imposed a penalty under Section
19177 or 19178.
(2) "Innocent investor" means any individual (or the spouse or
former spouse of that individual) that satisfies each of the
following requirements:
(A) Is liable for underpayment of any tax imposed under Part 10
(commencing with Section 17001) for any taxable year ending on or
before December 31, 2000, that is attributable to ownership of an
interest in an abusive tax shelter.
(B) Had no responsibility for the creation, promotion, operation,
management, or control of the abusive tax shelter.
(C) During the tax years to which the underpayment described in
subparagraph (A) relates, reasonably believed that the tax treatment
of an item attributable to an abusive tax shelter was, more likely
than not, the proper tax treatment.
(3) "Principal residence" includes any property that qualifies as
a declared homestead as defined in Section 704.910 of the Code of
Civil Procedure.
(d) Notification required by this section shall be made in the
manner prescribed in forms and instructions of the Franchise Tax
Board.
(e) (1) If, after January 1, 2002, the Franchise Tax Board has
received proceeds from the sale of a principal residence by either
levy or the satisfaction of a lien, the amounts received shall be
returned to the owner upon notification to the Franchise Tax Board
that the residence was the principal residence of an innocent
investor and substantiation as specified in subdivision (a) or (b).
The notification shall be made in writing and shall be considered a
request for the return of the proceeds from the sale of the principal
residence.
(2) If the Franchise Tax Board fails to mail notice of denial of
the request for the return of the proceeds from the sale of the
principal residence within six months after the date the request was
submitted, the owner may, prior to the mailing of the notice of
denial of the request, consider the request denied and may, in
accordance with subdivision (f), bring an action against the
Franchise Tax Board for the return of the proceeds from the sale of
the principal residence.
(3) Amounts returned pursuant to paragraph (1) shall include
interest at the adjusted annual rate established under Section 19521
from the date the amounts are received by the Franchise Tax Board
until the date the amounts are returned.
(4) Any amounts required to be returned pursuant to this
subdivision shall first be credited against any amount due from the
owner (other than an underpayment of tax described in subparagraph
(A) of paragraph (2) of subdivision (c)) and the balance, if any,
shall be returned to the owner.
(5) No amount may be credited or returned pursuant to this
subdivision unless the notification and substantiation described in
paragraph (1) occur before the expiration of the one-year period
beginning on the date the proceeds are received by the Franchise Tax
Board.
(f) (1) If the Franchise Tax Board denies a request for the return
of the proceeds from the sale of a principal residence, the owner of
the residence may bring an action against the Franchise Tax Board
for the return, in whole or in part, of the proceeds the Franchise
Tax Board received by levy or in satisfaction of a lien.
(2) The action described in paragraph (1) must be filed within one
year from the date the proceeds are received by the Franchise Tax
Board or within 90 days after the Franchise Tax Board notifies the
owner of the denial of his or her request for the return of the
proceeds from the sale of the principal residence, whichever period
expires later.
(3) Except as otherwise provided in this subdivision, an action
brought pursuant to this subdivision shall be governed by the
provisions of law applicable to an action authorized under Section
19382.
SEC. 208. Section 23684 of the Revenue and Taxation Code is
amended to read:
23684. (a) For each taxable year beginning on or after January 1,
2001, and before January 1, 2004, there shall be allowed as a credit
against the "tax," as defined in Section 23036, an amount equal to
the lesser of 15 percent of the cost that is paid or incurred by a
taxpayer, after deducting the value of any other municipal, state, or
federal sponsored financial incentives, during the taxable year for
the purchase and installation of any solar energy system installed on
property in this state, or the applicable dollar amount per rated
watt of that solar energy system, as determined by the Franchise Tax
Board in consultation with the State Energy Resources Conservation
and Development Commission.
(b) For each taxable year beginning on or after January 1, 2004,
and before January 1, 2006, there shall be allowed as a credit
against the "tax," as defined in Section 23036, an amount equal to
the lesser of 7.5 percent of the cost that is paid or incurred by a
taxpayer, after deducting the value of any other municipal, state, or
federal sponsored financial incentives, during the taxable year for
the purchase and installation of any solar energy system installed on
property in this state, or the applicable dollar amount per rated
watt of that solar energy system, as determined by the Franchise Tax
Board in consultation with the State Energy Resources Conservation
and Development Commission.
(c) For purposes of this section:
(1) "Applicable dollar amount" means four dollars and fifty cents
($4.50) for any taxable year beginning on or after January 1, 2001,
and before January 1, 2006.
(2) "Solar energy system" means a solar energy device, in the form
of either a photovoltaic or wind-driven system, with a peak
generating capacity of up to, but not more than, 200 kilowatts, used
for the individual function of generating electricity, that is
certified by the State Energy Resources Conservation and Development
Commission and installed with a five-year warranty against breakdown
or undue degradation.
(3) A credit may be allowed under this section with respect to
only one solar energy system per each separate legal parcel of
property or per each address of the taxpayer in the state.
(4) No credit may be allowed under this section unless the solar
energy system is actually used for purposes of producing electricity
and is primarily used to meet the taxpayer's own energy needs.
(d) No other credit and no deduction may be allowed under this
part for any cost for which a credit is allowed by this section. The
basis of the solar energy system shall be reduced by the amount
allowed as a credit under subdivision (a) or (b).
(e) No credit may be allowed to any taxpayer engaged in those
lines of business described in Sector 22 of the North American
Industry Classification System (NAICS) Manual published by the United
States Office of Management and Budget, 1997 edition.
(f) If any solar energy system for which a credit is allowed
pursuant to this section is thereafter sold or removed from this
state within one year from the date the solar energy system is first
placed in service in this state, the amount of credit allowed by this
section for that solar energy system shall be recaptured by adding
that credit amount to the tax of the taxpayer for the taxable year in
which the solar energy system is sold or removed.
(g) In the case where the credit allowed by this section exceeds
the "tax," the excess may be carried over to reduce the "tax" in the
following year, and the succeeding seven years if necessary, until
the credit is exhausted.
(h) This section shall remain in effect only until December 1,
2006, and as of that date is repealed.
SEC. 209. Section 32402 of the Revenue and Taxation Code is
amended to read:
32402. (a) Except as provided in subdivision (b) no refund shall
be approved by the board after three years from the 15th day of the
calendar month following the close of the period for which the
overpayment was made, or, with respect to determinations made under
Article 2 (commencing with Section 32271), Article 3 (commencing with
Section 32291), or Article 5 (commencing with Section 32311) of
Chapter 6 after six months from the date the determinations become
final, or after six months from the date of overpayment, whichever
period expires later, unless a claim therefor is filed with the board
within that period. No credit shall be approved by the board after
the expiration of that period unless a claim for credit is filed with
the board within that period, or unless the credit relates to a
period for which a waiver is given pursuant to Section 32273.
(b) A refund may be approved by the board for any period for which
a waiver is given under Section 32273, if a claim therefor is filed
with the board before the expiration of the period agreed upon.
(c) Every claim for refund or credit shall be in writing and shall
state the specific grounds upon which the claim is founded.
SEC. 210. Section 730.5 of the Streets and Highways Code is
amended to read:
730.5. Any person who by any means, without a permit issued by
the department, digs up, cuts down, destroys, prunes, trims, or
otherwise injures any tree or shrub on any state highway,
rights-of-way, or property shall be liable for a penalty in the sum
of ten thousand dollars ($10,000) for each tree so damaged and one
thousand dollars ($1,000) for each shrub so damaged; and the
department, in the name of the people of the State of California, may
recover the penalty in an action at law, in a court of competent
jurisdiction, together with the costs and expenses, including
attorney and expert fees, incurred in the action and the actual costs
incurred because of the damage to any tree or shrub on state
property.
SEC. 211. Section 15076.5 of the Unemployment Insurance Code is
amended to read:
15076.5. The California Workforce Investment Board shall do all
of the following:
(a) Be the lead state agency to establish policies for:
(1) Alleviating adverse conditions that might cause plant closures
and, where closures are unavoidable, assisting local efforts to
secure alternative employment and retraining opportunities for
displaced workers.
(2) Marshaling available state and federal resources to aid
workers and communities affected by major plant closures and to
foster long-term economic vitality, industrial growth, and job
opportunities.
(3) Integrating appropriate activities of the Technology, Trade
and Commerce Agency, the Employment Development Department, the
Employment Training Panel, the Department of Industrial Relations,
the State Department of Education, the Chancellor's Office of the
California Community Colleges, and the Governor's Office of Planning
and Research with the State Dislocated Worker Unit.
(4) Collection of data and preparation of economic analyses and
reporting, intended to provide better and more detailed assessments
of future trends within the industrial, commercial, and agricultural
sectors of the economy.
(b) Review and comment on the plans for displaced worker
assistance programs submitted pursuant to Section 15076.
(c) Recommend to the Governor necessary components of state plans
under the jurisdiction of other state offices, departments, or
agencies that administer programs appropriate for coordination with
dislocated worker assistance programs authorized by this chapter.
(d) Review and make recommendations to the Governor and the
Legislature regarding changes needed in current federal and state
statutes and programs in order to minimize adverse consequences of
plant closures and promote rapid reemployment of workers and
revitalization of communities.
SEC. 212. Section 286 of the Vehicle Code is amended to read:
286. The term "dealer" does not include any of the following:
(a) Insurance companies, banks, finance companies, public
officials, or any other persons coming into possession of vehicles in
the regular course of business, who sell vehicles under a
contractual right or obligation, in performance of an official duty,
or in authority of any court of law, if the sale is for the purpose
of saving the seller from loss or pursuant to the authority of a
court.
(b) Persons who sell or distribute vehicles of a type subject to
registration or trailers subject to identification pursuant to
Section 5014.1 for a manufacturer to vehicle dealers licensed under
this code, or who are employed by manufacturers or distributors to
promote the sale of vehicles dealt in by those manufacturers or
distributors. However, any of those persons who also sell vehicles
at retail are vehicle dealers and are subject to this code.
(c) Persons regularly employed as salespersons by vehicle dealers
licensed under this code while acting within the scope of that
employment.
(d) Persons engaged exclusively in the bona fide business of
exporting vehicles or of soliciting orders for the sale and delivery
of vehicles outside the territorial limits of the United States, if
no federal excise tax is legally payable or refundable on any of the
transactions. Persons not engaged exclusively in the bona fide
business of exporting vehicles, but who are engaged in the business
of soliciting orders for the sale and delivery of vehicles, outside
the territorial limits of the United States are exempt from licensure
as dealers only if their sales of vehicles produce less than 10
percent of their total gross revenue from all business transacted.
(e) Persons not engaged in the purchase or sale of vehicles as a
business, who dispose of any vehicle acquired and used in good faith,
for their own personal use, or for use in their business, and not
for the purpose of avoiding the provisions of this code.
(f) Persons who are engaged in the purchase, sale, or exchange of
vehicles, other than motorcycles subject to identification under this
code, that are not intended for use on the highways.
(g) Persons temporarily retained as auctioneers solely for the
purpose of disposing of vehicle stock inventories by means of public
auction on behalf of the owners at the owners' place of business, or
as otherwise approved by the department, if intermediate physical
possession or control of, or an ownership interest in, the inventory
is not conveyed to the persons so retained.
(h) Persons who are engaged exclusively in the business of
purchasing, selling, servicing, or exchanging racing vehicles, parts
for racing vehicles, and trailers designed and intended by the
manufacturer to be used exclusively for carrying racing vehicles.
For purposes of this subdivision, "racing vehicle" means a motor
vehicle of a type used exclusively in a contest of speed or in a
competitive trial of speed that is not intended for use on the
highways.
(i) Any person who is a lessor.
(j) Any person who is a renter.
(k) Any salvage pool.
(l) Any yacht broker who is subject to the Yacht and Ship Brokers
Act (Article 2 (commencing with Section 700) of Chapter 5 of Division
3 of the Harbors and Navigation Code) and who sells used boat
trailers in conjunction with the sale of a vessel.
(m) Any licensed automobile dismantler who sells vehicles that
have been reported for dismantling as provided in Section 11520.
(n) The Director of Corrections when selling vehicles pursuant to
Section 2813.5 of the Penal Code.
(o) (1) Any public or private nonprofit charitable, religious, or
educational institution or organization that sells vehicles if all of
the following conditions are met:
(A) The institution or organization qualifies for state tax-exempt
status under Section 23701d of the Revenue and Taxation Code, and
tax-exempt status under Section 501(c)(3) of the federal Internal
Revenue Code.
(B) The vehicles sold were donated to the nonprofit charitable,
religious, or educational institution or organization.
(C) The vehicles subject to retail sale meet all of the applicable
equipment requirements of Division 12 (commencing with Section
24000) and are in compliance with emission control requirements as
evidenced by the issuance of a certificate pursuant to subdivision
(b) of Section 44015 of the Health and Safety Code. Under no
circumstances may any institution or organization transfer the
responsibility of obtaining a smog inspection certificate to the
buyer of the vehicle.
(D) The proceeds of the sale of the vehicles are retained by that
institution or organization for its charitable, religious, or
educational purposes.
(2) An institution or organization described in paragraph (1) may
sell vehicles on behalf of another institution or organization under
the following conditions:
(A) The nonselling institution or organization meets the
requirements of paragraph (1).
(B) The selling and nonselling institutions or organizations enter
into a signed, written agreement pursuant to subparagraph (A) of
paragraph (3) of subdivision (a) of Section 1660.
(C) The selling institution or organization transfers the proceeds
from the sale of each vehicle to the nonselling institution or
organization within 45 days of the sale. All net proceeds
transferred to the nonselling institution or organization shall
clearly be identifiable to the sale of a specific vehicle. The
selling institution or organization may retain a percentage of the
proceeds from the sale of a particular vehicle. However, any
retained proceeds shall be used by the selling institution or
organization for its charitable, religious, or educational purposes.
(D) At the time of transferring the proceeds, the selling
institution or organization shall provide to the nonselling
institution or organization, an itemized listing of the vehicles sold
and the amount for which each vehicle was sold.
(E) In the event the selling institution or organization cannot
complete a retail sale of a particular vehicle, or if the vehicle
cannot be transferred as a wholesale transaction to a dealer licensed
under this code, the vehicle shall be returned to the nonselling
institution or organization and the written agreement revised to
reflect that return. Under no circumstances may a selling
institution or organization transfer or donate the vehicle to a third
party that is excluded from the definition of a dealer under this
section.
(3) An institution or organization described in this subdivision
shall retain all records required to be retained pursuant to Section
1660.
(p) Any motor club, as defined in Section 12142 of the Insurance
Code, that does not arrange or negotiate individual motor vehicle
purchase transactions on behalf of its members but refers members to
a new motor vehicle dealer for the purchase of a new motor vehicle
and does not receive a fee from the dealer contingent upon the sale
of the vehicle.
SEC. 213. Section 672 of the Vehicle Code is amended to read:
672. (a) "Vehicle manufacturer" is any person who produces from
raw materials or new basic components a vehicle of a type subject to
registration under this code, off-highway motorcycles subject to
identification under this code, or trailers subject to identification
pursuant to Section 5014.1, or who permanently alters, for purposes
of retail sales, new commercial vehicles by converting the vehicles
into housecars that display the insignia of approval required by
Section 18056 of the Health and Safety Code and any regulations
issued pursuant thereto by the Department of Housing and Community
Development. As used in this section, "permanently alters" does not
include the permanent attachment of a camper to a vehicle.
(b) A vehicle manufacturer that produces a vehicle of a type
subject to registration that consists of used or reconditioned parts,
for the purposes of the code, is a remanufacturer, as defined in
Section 507.8.
(c) Unless a vehicle manufacturer either grants franchises to
franchisees in this state, or issues vehicle warranties directly to
franchisees in this state or consumers in this state, the
manufacturer shall have an established place of business or a
representative in this state.
(d) The scope and application of this section are limited to
Division 2 (commencing with Section 1500) and Division 5 (commencing
with Section 11100).
SEC. 214. Section 5017 of the Vehicle Code is amended to read:
5017. (a) Each identification plate issued under Section 5016
shall bear a distinctive number to identify the equipment, logging
vehicle, trailer, semitrailer, or implement of husbandry for which it
is issued. The owner, upon being issued a plate, shall attach it to
the equipment, logging vehicle, trailer, semitrailer, or implement
of husbandry for which it is issued and shall carry the
identification certificate issued by the department as provided by
Section 4454. It shall be unlawful for any person to attach or use
the plate upon any other equipment, logging vehicle, trailer,
semitrailer, or implement of husbandry. If the equipment, logging
vehicle, trailer, semitrailer, or implement of husbandry is destroyed
or the ownership thereof transferred to another person, the person
to whom the plate was issued shall, within 10 days, notify the
department, on a form approved by the department, that the equipment,
logging vehicle, trailer, semitrailer, or implement of husbandry has
been destroyed or the ownership thereof transferred to another
person.
(b) Upon the implementation of the permanent trailer
identification plate program, all trailers except those exempted in
paragraphs (1) and (3) of subdivision (a) of Section 5014.1 may be
assigned a single permanent plate for identification purposes. Upon
issuance of the plate, it shall be attached to the vehicle pursuant
to Sections 5200 and 5201.
(c) An identification certificate shall be issued for each trailer
or semitrailer assigned an identification plate. The identification
certificate shall contain upon its face, the date issued, the name
and residence or business address of the registered owner or lessee
and of the legal owner, if any, the vehicle identification number
assigned to the trailer or semitrailer, and a description of the
trailer or semitrailer as complete as that required in the
application for registration of the trailer or semitrailer. For
those trailers registered under Article 4 (commencing with Section
8050) of Chapter 4 on the effective date of the act adding this
sentence that are being converted to the permanent trailer
identification program, the identification card may contain only the
name of the registrant, and the legal owner's name is not required to
be shown. Upon transfer of those trailers, the identification card
shall contain the name of the owner and legal owner, if any. When an
identification certificate has been issued to a trailer or
semitrailer, the owner or operator shall make that certificate
available for inspection by a peace officer upon request.
(d) The application for transfer of ownership of a vehicle with a
trailer plate or permanent trailer identification plate shall be made
within 10 days of sale of the vehicle. The permanent trailer
identification certificate is not a certificate of ownership as
described in Section 38076.
SEC. 215. Section 5068 of the Vehicle Code, as added by Section 2
of Chapter 201 of the Statutes of 2001, is amended to read:
5068. (a) (1) Any veterans' organization may apply either
individually or with other veterans' organizations to meet the 5,000
application threshold set forth in Section 5060 for special interest
plates. An organization that meets the 5,000 minimum application
requirement by applying with other organizations pursuant to this
subdivision shall be issued a regular license plate bearing a
distinctive design or decal approved pursuant to subdivision (a) of
Section 5060.
(2) Special interest plates issued pursuant to this section may be
issued in a combination of numbers or letters, or both, requested by
the owner or lessee of the vehicle, to be displayed in addition to
the design or decal authorized under paragraph (1), subject to
Section 5105.
(b) In addition to the regular fees for an original registration,
a renewal of registration, or a transfer of registration, the
following fees shall be paid by individuals applying for a veterans'
organization special interest license plate or decal:
(1) Thirty dollars ($30) for the initial issuance of the plates
and decals. The plates shall be permanent and shall not be required
to be replaced.
(2) Thirty dollars ($30) for each renewal of registration which
includes the continued display of the plates or decals.
(3) Fifteen dollars ($15) for transfer of the plates to another
vehicle.
(4) Thirty-five dollars ($35) for replacement plates, if they
become damaged or unserviceable.
(5) Ten dollars ($10) for replacement decals, if they become
damaged or unserviceable.
(6) Forty dollars ($40) for the personalization of the plates, as
authorized under paragraph (2) of subdivision (a).
(c) This section shall become operative on July 1, 2002.
SEC. 216. Section 9250.7 of the Vehicle Code is amended to read:
9250.7. (a) (1) A service authority established under Section
22710 may impose a service fee of one dollar ($1) on all vehicles,
except vehicles described in subdivision (a) of Section 5014.1,
registered to an owner with an address in the county that established
the service authority. The fee shall be paid to the department at
the time of registration, or renewal of registration, or when renewal
becomes delinquent, except on vehicles that are expressly exempted
under this code from the payment of registration fees.
(2) In addition to the one dollar ($1) service fee, and upon the
implementation of the permanent trailer identification plate program,
and as part of the Commercial Vehicle Registration Act of 2001, all
commercial motor vehicles subject to Section 9400.1 registered to an
owner with an address in the county that established a service
authority under this section shall pay an additional service fee of
two dollars ($2).
(b) The department, after deducting its administrative costs,
shall transmit, at least quarterly, the net amount collected pursuant
to subdivision (a) to the Treasurer for deposit in the Abandoned
Vehicle Trust Fund, which is hereby created. All money in the fund
is continuously appropriated to the Controller for allocation to a
service authority that has an approved abandoned vehicle abatement
program pursuant to Section 22710, and for payment of the
administrative costs of the Controller. After deduction of its
administrative costs, the Controller shall allocate the money in the
Abandoned Vehicle Trust Fund to each service authority in proportion
to the revenues received from the fee imposed by that authority
pursuant to subdivision (a). If any funds received by a service
authority pursuant to this section are not expended to abate
abandoned vehicles pursuant to an approved abandoned vehicle
abatement program that has been in existence for at least two full
fiscal years within 90 days of the close of the fiscal year in which
the funds were received and the amount of those funds exceeds the
amount expended by the service authority for the abatement of
abandoned vehicles in the previous fiscal year, a fee imposed
pursuant to subdivision (a) shall be suspended for one year,
commencing on the July 1 following the Controller's determination
pursuant to subdivision (e).
(c) Every service authority that imposes a fee authorized by
subdivision (a) shall issue a fiscal yearend report to the Controller
on or before October 31 of each year summarizing all of the
following:
(1) The total revenues received by the service authority for the
previous fiscal year.
(2) The total expenditures by the service authority for the
previous fiscal year.
(3) The total number of vehicles abated during the previous fiscal
year.
(4) The average cost per abatement during the previous fiscal
year.
(5) Any additional, unexpended fee revenues for the service
authority for the previous fiscal year.
(d) Each service authority that fails to submit the report
required pursuant to subdivision (c) by November 30 of each year
shall have the fee suspended for one year pursuant to subdivision
(b).
(e) On or before January 1, 2003, and on or before January 1
annually thereafter, the Controller shall review the fiscal yearend
reports submitted by each service authority pursuant to subdivision
(c) to determine if fee revenues are being utilized in a manner
consistent with the service authority's program. If the Controller
determines that the use of the fee revenues is not consistent with
the service authority's program, or that an excess of fee revenues
exists, as specified in subdivision (b), the authority to collect the
fee shall be suspended for one year pursuant to subdivision (b). If
the Controller determines that a service authority has not submitted
a fiscal yearend report as required in subdivision (c), the
authorization to collect the service fee shall be suspended for one
year pursuant to subdivision (d). The Controller shall inform the
Department of Motor Vehicles on or before January 1, 2003, and on or
before January 1 annually thereafter, that the authority to collect
the fee is suspended. A suspension shall only occur if the service
authority has been in existence for at least two full fiscal years
and the revenue fee surpluses are in excess of those allowed under
this section or the fiscal yearend report has not been submitted.
(f) On or before January 1, 2003, and on or before January 1
annually thereafter, the Controller shall prepare and submit to the
Legislature a revenue and expenditure summary for each service
authority established under Section 22710 that includes, but is not
limited to, all of the following:
(1) The total revenues received by each service authority.
(2) The total expenditures by each service authority.
(3) The unexpended revenues for each service authority.
(4) The total number of vehicle abatements for each service
authority.
(5) The average cost per abatement as provided by each service
authority to the Controller pursuant to subdivision (c).
(g) The fee imposed by a service authority shall remain in effect
only for a period of 10 years from the date that the actual
collection of the fee commenced unless the fee is extended pursuant
to this subdivision. The fee may be extended in increments of up to
10 years each if the board of supervisors of the county, by a
two-thirds vote, and a majority of the cities having a majority of
the incorporated population within the county adopt resolutions
providing for the extension of the fee.
SEC. 217. Section 12517.5 of the Vehicle Code is amended to read:
12517.5. A person who is employed as a driver of a paratransit
vehicle shall not operate that vehicle unless the person meets both
of the following requirements:
(a) Has in his or her immediate possession a valid driver's
license of a class appropriate to the vehicle driven.
(b) Successfully completes, during each calendar year, four hours
of training administered by, or at the direction of, his or her
employer or the employer's agent on the safe operation of paratransit
vehicles and four hours of training on the special transportation
needs of the persons he or she is employed to transport.
This subdivision may be satisfied if the driver receives
transportation training or a certificate, or both, pursuant to
Section 40082, 40083, 40085, 40085.5, or 40088 of the Education Code.
The employer shall maintain a record of the current training
received by each driver in his or her employ and shall present that
record on demand to any authorized representative of the Department
of the California Highway Patrol.
SEC. 218. Section 12811 of the Vehicle Code, as amended by Section
5 of Chapter 740 of the Statutes of 2001, is amended to read:
12811. (a) (1) When the department determines that the applicant
is lawfully entitled to a license, it shall issue to the person a
driver's license as applied for. The license shall state the class
of license for which the licensee has qualified and shall contain the
distinguishing number assigned to the applicant, the date of
expiration, the true full name, age, and mailing address of the
licensee, a brief description and engraved picture or photograph of
the licensee for the purpose of identification, and space for the
signature of the licensee.
Each license shall also contain a space for the endorsement of a
record of each suspension or revocation thereof.
The department shall use whatever process or processes, in the
issuance of engraved or colored licenses, that prohibit, as near as
possible, the ability to alter or reproduce the license, or prohibit
the ability to superimpose a picture or photograph on the license
without ready detection.
(2) In addition to the requirements of paragraph (1), a license
issued to a person under 18 years of age shall display the words
"provisional until age 18."
(b) The department shall provide a form that, when completed, may
be carried with the license, by which the licensee may indicate his
or her willingness and intent to make an anatomical gift, including
the gift of a pacemaker, or his or her refusal to make an anatomical
gift pursuant to Section 7150.5 of the Health and Safety Code, and,
if applicable, the date that a pacemaker was implanted. The form
shall be designed to obtain information sufficient to identify the
nature of the anatomical gift and shall include, but not be limited
to, all of the following:
(1) A space for the signature of the potential donor.
(2) A space for the signature of one or more witnesses, which
should include the spouse, parent, or adult child of the donor or any
other next of kin.
(3) A statement sufficient in its terms to meet the requirements
of the Uniform Anatomical Gift Act (Chapter 3.5 (commencing with
Section 7150) of Part 1 of Division 7 of the Health and Safety Code).
(4) A space for the donor to indicate whether the donor desires to
donate tissues or organs, or both, or the donor's entire body for
the purpose of transplantation or medical research, or both.
(5) Text informing the donor that the form is a legally binding
document, which shall remain binding after death despite any
expressed desires of next of kin opposed to the donation.
(6) Text requiring the donor to discuss the decision to donate
with family, friends, or any other person who might be directly
affected by the donation, particularly those next of kin who might
object to the decision and a space for the donor's initials to
acknowledge that it is the donor's responsibility to comply with this
requirement.
(7) Text informing the donor that rescission of the decision to
donate shall require the completion of a new form and the removal of
the sticker described in Section 1672.5 from the driver's license or
identification card.
(c) (1) The statement required under paragraph (3) of subdivision
(b) shall not be deemed to be effective unless both of the following
conditions have been met:
(A) The statement is signed by the licensee.
(B) The licensee is 18 years of age or older at the time of
signing.
(2) If the licensee cannot sign, the statement may be signed for
the licensee, at his or her direction and in his or her presence, in
the presence of two witnesses who shall sign the statement in his or
her presence.
(d) The department shall present the form provided under
subdivision (b), and explain its use, to each applicant for a license
or license renewal.
(e) The anatomical gift shall become effective upon the death of
the licensee.
(f) No public entity or employee is liable for any loss,
detriment, or injury resulting directly or indirectly from false or
inaccurate information contained in the form provided pursuant to
subdivision (b).
(g) No contract may be let to any nongovernmental entity for the
processing of driver's licenses, unless the department receives two
or more qualified bids from independent, responsible bidders.
(h) This section shall become inoperative on the date the Director
of Finance makes the determination described in subdivision (d) of
Section 7152.7 of the Health and Safety Code.
SEC. 219. Section 14602.6 of the Vehicle Code is amended to read:
14602.6. (a) Whenever a peace officer determines that a person
was driving a vehicle while his or her driving privilege was
suspended or revoked or without ever having been issued a driver's
license, the peace officer may either immediately arrest that person
and cause the removal and seizure of that vehicle or, if the vehicle
is involved in a traffic collision, cause the removal and seizure of
the vehicle, without the necessity of arresting the person in
accordance with Chapter 10 (commencing with Section 22650) of
Division 11. A vehicle so impounded shall be impounded for 30 days.
The impounding agency, within two working days of impoundment,
shall send a notice by certified mail, return receipt requested, to
the legal owner of the vehicle, at the address obtained from the
department, informing the owner that the vehicle has been impounded.
Failure to notify the legal owner within two working days shall
prohibit the impounding agency from charging for more than 15 days'
impoundment when the legal owner redeems the impounded vehicle. The
impounding agency shall maintain a published telephone number that
provides information 24 hours a day regarding the impoundment of
vehicles and the rights of a registered owner to request a hearing.
(b) The registered and legal owner of a vehicle that is removed
and seized under subdivision (a) or their agents shall be provided
the opportunity for a storage hearing to determine the validity of,
or consider any mitigating circumstances attendant to, the storage,
in accordance with Section 22852.
(c) Any period in which a vehicle is subjected to storage under
this section shall be included as part of the period of impoundment
ordered by the court under subdivision (a) of Section 14602.5.
(d) (1) An impounding agency shall release a vehicle to the
registered owner or his or her agent prior to the end of 30 days'
impoundment under any of the following circumstances:
(A) When the vehicle is a stolen vehicle.
(B) When the vehicle is subject to bailment and is driven by an
unlicensed employee of a business establishment, including a parking
service or repair
garage.
(C) When the license of the driver was suspended or revoked for an
offense other than those included in Article 2 (commencing with
Section 13200) of Chapter 2 of Division 6 or Article 3 (commencing
with Section 13350) of Chapter 2 of Division 6.
(D) When the vehicle was seized under this section for an offense
that does not authorize the seizure of the vehicle.
(E) When the driver reinstates his or her driver's license or
acquires a driver's license and proper insurance.
(2) No vehicle shall be released pursuant to this subdivision
without presentation of the registered owner's or agent's currently
valid driver's license to operate the vehicle and proof of current
vehicle registration, or upon order of a court.
(e) The registered owner or his or her agent is responsible for
all towing and storage charges related to the impoundment and any
administrative charges authorized under Section 22850.5.
(f) A vehicle removed and seized under subdivision (a) shall be
released to the legal owner of the vehicle or the legal owner's agent
prior to the end of 30 days' impoundment if all of the following
conditions are met:
(1) The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution
legally operating in this state or is another person, not the
registered owner, holding a security interest in the vehicle.
(2) The legal owner or the legal owner's agent pays all towing and
storage fees related to the seizure of the vehicle. No lien sale
processing fees shall be charged to the legal owner who redeems the
vehicle prior to the 15th day of impoundment. Neither the impounding
authority nor any person having possession of the vehicle shall
collect from the legal owner of the type specified in paragraph (1)
or the legal owner's agent any administrative charges imposed
pursuant to Section 22850.5 unless the legal owner voluntarily
requested a poststorage hearing.
(3) The legal owner or the legal owner's agent presents either
lawful foreclosure documents or an affidavit of repossession for the
vehicle, and a security agreement or title showing proof of legal
ownership for the vehicle. Any documents presented may be originals,
photocopies, or facsimile copies, or may be transmitted
electronically. The impounding agency may require the agent of the
legal owner to produce a photocopy or facsimile copy of its
repossession agency license or registration issued pursuant to
Chapter 11 (commencing with Section 7500) of Division 3 of the
Business and Professions Code, or to demonstrate, to the satisfaction
of the impounding agency, that the agent is exempt from licensure
pursuant to Section 7500.2 or 7500.3 of the Business and Professions
Code.
No administrative costs authorized under subdivision (a) of
Section 22850.5 shall be charged to the legal owner of the type
specified in paragraph (1) who redeems the vehicle unless the legal
owner voluntarily requests a poststorage hearing. No city, county,
city or county, or state agency shall require a legal owner or a
legal owner's agent to request a poststorage hearing as a requirement
for release of the vehicle to the legal owner or the legal owner's
agent. The impounding agency shall not require any documents other
than those specified in this paragraph.
As used in this paragraph, "foreclosure documents" means an
"assignment" as that term is defined in subdivision (o) of Section
7500.1 of the Business and Professions Code.
(g) (1) A legal owner or the legal owner's agent that obtains
release of the vehicle pursuant to subdivision (f) may not release
the vehicle to the registered owner of the vehicle or any agents of
the registered owner, unless the registered owner is a rental car
agency, until after the termination of the 30-day impoundment period.
(2) The legal owner or the legal owner's agent may not relinquish
the vehicle to the registered owner until the registered owner or
that owner's agent presents his or her valid driver's license or
valid temporary driver's license to the legal owner or the legal
owner's agent. The legal owner or the legal owner's agent shall make
every reasonable effort to ensure that the license presented is
valid.
(3) Prior to relinquishing the vehicle, the legal owner may
require the registered owner to pay all towing and storage charges
related to the impoundment and any administrative charges authorized
under Section 22850.5 that were incurred by the legal owner in
connection with obtaining custody of the vehicle.
(h) (1) A vehicle removed and seized under subdivision (a) shall
be released to a rental car agency prior to the end of 30 days'
impoundment if the agency is either the legal owner or registered
owner of the vehicle and the agency pays all towing and storage fees
related to the seizure of the vehicle.
(2) The owner of a rental vehicle that was seized under this
section may continue to rent the vehicle upon recovery of the
vehicle. However, the rental car agency may not rent another vehicle
to the driver of the vehicle that was seized until 30 days after the
date that the vehicle was seized.
(3) The rental car agency may require the person to whom the
vehicle was rented to pay all towing and storage charges related to
the impoundment and any administrative charges authorized under
Section 22850.5 that were incurred by the rental car agency in
connection with obtaining custody of the vehicle.
(i) Notwithstanding any other provision of this section, the
registered owner and not the legal owner shall remain responsible for
any towing and storage charges related to the impoundment, any
administrative charges authorized under Section 22850.5, and any
parking fines, penalties, and administrative fees incurred by the
registered owner.
(j) The impounding agency shall not be liable to the registered
owner for the improper release of the vehicle to the legal owner or
the legal owner's agent provided the release complies with the
provisions of this section.
SEC. 220. Section 14602.7 of the Vehicle Code is amended to read:
14602.7. (a) A magistrate presented with the affidavit of a peace
officer establishing reasonable cause to believe that a vehicle,
described by vehicle type and license number, was an instrumentality
used in the peace officer's presence in violation of Sections 2800.1,
2800.2, 2800.3, or 23103, shall issue a warrant or order authorizing
any peace officer to immediately seize and cause the removal of the
vehicle. The warrant or court order may be entered into a
computerized database. A vehicle so impounded may be impounded for a
period not to exceed 30 days.
The impounding agency, within two working days of impoundment,
shall send a notice by certified mail, return receipt requested, to
the legal owner of the vehicle, at the address obtained from the
department, informing the owner that the vehicle has been impounded
and providing the owner with a copy of the warrant or court order.
Failure to notify the legal owner within two working days shall
prohibit the impounding agency from charging for more than 15 days
impoundment when a legal owner redeems the impounded vehicle.
(b) (1) An impounding agency shall release a vehicle to the
registered owner or his or her agent prior to the end of the
impoundment period and without the permission of the magistrate
authorizing the vehicle's seizure under any of the following
circumstances:
(A) When the vehicle is a stolen vehicle.
(B) When the vehicle is subject to bailment and is driven by an
unlicensed employee of the business establishment, including a
parking service or repair garage.
(C) When the registered owner of the vehicle causes a peace
officer to reasonably believe, based on the totality of the
circumstances, that the registered owner was not the driver who
violated Section 2800.1, 2800.2, or 2800.3, the agency shall
immediately release the vehicle to the registered owner or his or her
agent.
(2) No vehicle shall be released pursuant to this subdivision,
except upon presentation of the registered owner's or agent's
currently valid driver's license to operate the vehicle and proof of
current vehicle registration, or upon order of the court.
(c) (1) Whenever a vehicle is impounded under this section, the
magistrate ordering the storage shall provide the vehicle's
registered and legal owners of record, or their agents, with the
opportunity for a poststorage hearing to determine the validity of
the storage.
(2) A notice of the storage shall be mailed or personally
delivered to the registered and legal owners within 48 hours after
issuance of the warrant or court order, excluding weekends and
holidays, by the person or agency executing the warrant or court
order, and shall include all of the following information:
(A) The name, address, and telephone number of the agency
providing the notice.
(B) The location of the place of storage and a description of the
vehicle, which shall include, if available, the name or make, the
manufacturer, the license plate number, and the mileage of the
vehicle.
(C) A copy of the warrant or court order and the peace officer's
affidavit, as described in subdivision (a).
(D) A statement that, in order to receive their poststorage
hearing, the owners, or their agents, are required to request the
hearing from the magistrate issuing the warrant or court order in
person, in writing, or by telephone, within 10 days of the date of
the notice.
(3) The poststorage hearing shall be conducted within two court
days after receipt of the request for the hearing.
(4) At the hearing, the magistrate may order the vehicle released
if he or she finds any of the circumstances described in subdivision
(b) or (e) that allow release of a vehicle by the impounding agency.
The magistrate may also consider releasing the vehicle when the
continued impoundment will cause undue hardship to persons dependent
upon the vehicle for employment or to a person with a community
property interest in the vehicle.
(5) Failure of either the registered or legal owner, or his or her
agent, to request or to attend a scheduled hearing satisfies the
poststorage hearing requirement.
(6) The agency employing the peace officer who caused the
magistrate to issue the warrant or court order shall be responsible
for the costs incurred for towing and storage if it is determined in
the poststorage hearing that reasonable grounds for the storage are
not established.
(d) The registered owner or his or her agent is responsible for
all towing and storage charges related to the impoundment, and any
administrative charges authorized under Section 22850.5.
(e) A vehicle removed and seized under subdivision (a) shall be
released to the legal owner of the vehicle or the legal owner's agent
prior to the end of the impoundment period and without the
permission of the magistrate authorizing the seizure of the vehicle
if all of the following conditions are met:
(1) The legal owner is a motor vehicle dealer, bank, credit union,
acceptance corporation, or other licensed financial institution
legally operating in this state or is another person, not the
registered owner, holding a financial interest in the vehicle.
(2) The legal owner or the legal owner's agent pays all towing and
storage fees related to the seizure of the vehicle. No lien sale
processing fees shall be charged to the legal owner who redeems the
vehicle prior to the 15th day of impoundment. Neither the impounding
authority nor any person having possession of the vehicle shall
collect from the legal owner of the type specified in paragraph (1)
or the legal owner's agent any administrative charges imposed
pursuant to Section 22850.5 unless the legal owner voluntarily
requested a poststorage hearing.
(3) The legal owner or the legal owner's agent presents either
lawful foreclosure documents or a certificate of repossession and a
security agreement or title showing proof of legal ownership for the
vehicle. Any documents presented may be originals, photocopies, or
facsimile copies, or may be transmitted electronically. The
impounding agency may require the agent of the legal owner to produce
a photocopy or facsimile copy of its repossession agency license or
registration issued pursuant to Chapter 11 (commencing with Section
7500) of Division 3 of the Business and Professions Code, or to
demonstrate, to the satisfaction of the impounding agency, that the
agent is exempt from licensure pursuant to Section 7500.2 or 7500.3
of the Business and Professions Code.
No administrative costs authorized under subdivision (a) of
Section 22850.5 shall be charged to the legal owner of the type
specified in paragraph (1), who redeems the vehicle unless the legal
owner voluntarily requests a poststorage hearing. No city, county,
city and county, or state agency shall require a legal owner or a
legal owner's agent to request a poststorage hearing as a requirement
for release of the vehicle to the legal owner or the legal owner's
agent. The impounding agency shall not require any documents other
than those specified in this paragraph.
As used in this paragraph, "foreclosure documents" means an
"assignment" as that term is defined in subdivision (o) of Section
7500.1 of the Business and Professions Code.
(f) (1) A legal owner or the legal owner's agent that obtains
release of the vehicle pursuant to subdivision (e) shall not release
the vehicle to the registered owner of the vehicle or any agents of
the registered owner, unless a registered owner is a rental car
agency, until the termination of the impoundment period.
(2) The legal owner or the legal owner's agent shall not
relinquish the vehicle to the registered owner until the registered
owner or that owner's agent presents his or her valid driver's
license or valid temporary driver's license to the legal owner or the
legal owner's agent. The legal owner or the legal owner's agent
shall make every reasonable effort to ensure that the license
presented is valid.
(3) Prior to relinquishing the vehicle, the legal owner may
require the registered owner to pay all towing and storage charges
related to the impoundment and the administrative charges authorized
under Section 22850.5 that were incurred by the legal owner in
connection with obtaining the custody of the vehicle.
(g) (1) A vehicle impounded and seized under subdivision (a) shall
be released to a rental car agency prior to the end of the
impoundment period if the agency is either the legal owner or
registered owner of the vehicle and the agency pays all towing and
storage fees related to the seizure of the vehicle.
(2) The owner of a rental vehicle that was seized under this
section may continue to rent the vehicle upon recovery of the
vehicle. However, the rental car agency shall not rent another
vehicle to the driver who used the vehicle that was seized to evade a
police officer until 30 days after the date that the vehicle was
seized.
(3) The rental car agency may require the person to whom the
vehicle was rented and who evaded the peace officer to pay all towing
and storage charges related to the impoundment and any
administrative charges authorized under Section 22850.5 that were
incurred by the rental car agency in connection with obtaining
custody of the vehicle.
(h) Notwithstanding any other provision of this section, the
registered owner and not the legal owner shall remain responsible for
any towing and storage charges related to the impoundment and the
administrative charges authorized under Section 22850.5 and any
parking fines, penalties, and administrative fees incurred by the
registered owner.
(i) (1) This section does not apply to vehicles abated under the
Abandoned Vehicle Abatement Program pursuant to Sections 22660 to
22668, inclusive, and Section 22710, or to vehicles impounded for
investigation pursuant to Section 22655, or to vehicles removed from
private property pursuant to Section 22658.
(2) This section does not apply to abandoned vehicles removed
pursuant to Section 22669 that are determined by the public agency to
have an estimated value of three hundred dollars ($300) or less.
(j) The impounding agency shall not be liable to the registered
owner for the improper release of the vehicle to the legal owner or
the legal owner's agent provided the release complies with the
provisions of this section.
SEC. 221. Section 15302 of the Vehicle Code is amended to read:
15302. No driver of a commercial motor vehicle may operate a
commercial motor vehicle for the rest of his or her life if convicted
of more than one violation of any of the following:
(a) Driving a commercial motor vehicle while under the influence
of alcohol or a controlled substance.
(b) Leaving the scene of an accident involving a commercial motor
vehicle operated by the driver.
(c) Using a commercial motor vehicle in the commission of more
than one felony arising out of separate occasions of arrest or
citation.
(d) Driving a commercial motor vehicle when the driver's
commercial driver's license is revoked, suspended, or canceled based
on the driver's operation of a commercial motor vehicle or when the
driver is disqualified from operating a commercial motor vehicle
based on the driver's operation of a commercial motor vehicle.
(e) Causing a fatality involving conduct defined pursuant to
subparagraph (E) of paragraph (1) of subsection (c) of Title 49 of
Section 31310 of the United States Code.
(f) A violation of Section 2800.1, 2800.2, or 2800.3 that involves
a commercial motor vehicle.
(g) Any combination of the above violations.
SEC. 222. Section 15620 of the Vehicle Code is amended to read:
15620. (a) A parent, legal guardian, or other person responsible
for a child who is 6 years of age or younger may not leave that child
inside a motor vehicle without being subject to the supervision of a
person who is 12 years of age or older, under either of the
following circumstances:
(1) Where there are conditions that present a significant risk to
the child's health or safety.
(2) When the vehicle's engine is running or the vehicle's keys are
in the ignition, or both.
(b) A violation of subdivision (a) is an infraction punishable by
a fine of one hundred dollars ($100), except that the court may
reduce or waive the fine if the defendant establishes to the
satisfaction of the court that he or she is economically
disadvantaged and the court, instead, refers the defendant to a
community education program that includes education on the dangers of
leaving young children unattended in motor vehicles, and provides
certification of completion of that program. Upon completion of that
program, the defendant shall provide that certification to the
court. The court may, at its discretion, require any defendant
described in this section to attend an education program on the
dangers of leaving young children unattended in motor vehicles.
(c) Nothing in this section shall preclude prosecution under both
this section and Section 192 of the Penal Code, or Section 273a of
that code, or any other provision of law.
(d) (1) Subdivision (b) and Section 40000.1 do not apply if an
unattended child is injured or medical services are rendered on that
child because of a violation described in subdivision (a).
(2) Nothing in this subdivision precludes prosecution under any
other provision of law.
SEC. 223. Section 23580 of the Vehicle Code is amended to read:
23580. (a) If any person is convicted of a violation of Section
23152 or 23153 and the offense was a second or subsequent offense
punishable under Section 23540, 23546, 23550, 23550.5, 23560, or
23566, the court shall require that any term of imprisonment that is
imposed include at least one period of not less than 48 consecutive
hours of imprisonment or, in the alternative and notwithstanding
Section 4024.2 of the Penal Code, that the person serve not less than
10 days of community service.
(b) Notwithstanding any other provision of law, except Section
2900.5 of the Penal Code, unless the court expressly finds in the
circumstances that the punishment inflicted would be cruel or unusual
punishment prohibited by Section 17 of Article I of the California
Constitution, no court or person to whom a person is remanded for
execution of sentence shall release, or permit the release of, a
person from the requirements of subdivision (a), including, but not
limited to, any work-release program, weekend service of sentence
program, diversion or treatment program, or otherwise.
(c) For the purposes of this section, "imprisonment" means
confinement in a jail, in a minimum security facility, or in an
inpatient rehabilitation facility, as provided in Part 1309
(commencing with Section 1309.1) of Title 23 of the Code of Federal
Regulations.
SEC. 224. Section 10013 of the Water Code is amended to read:
10013. The department, as a part of the preparation of the
department's Bulletin 160-03, shall include in the California Water
Plan a report on the development of regional and local water projects
within each hydrologic region of the state, as described in the
department's Bulletin 160-98, to improve water supplies to meet
municipal, agricultural, and environmental water needs and minimize
the need to import water from other hydrologic regions. The report
shall include, but is not limited to, regional and local water
projects that use technologies for desalting brackish groundwater and
ocean water, reclaiming water for use within the community
generating the water to be reclaimed, the construction of improved
potable water treatment facilities so that water from sources
determined to be unsuitable can be used, and the construction of dual
water systems and brine lines, particularly in connection with new
developments and when replacing water piping in developed or
redeveloped areas.
SEC. 225. Section 10610.2 of the Water Code is amended to read:
10610.2. (a) The Legislature finds and declares all of the
following:
(1) The waters of the state are a limited and renewable resource
subject to ever-increasing demands.
(2) The conservation and efficient use of urban water supplies are
of statewide concern; however, the planning for that use and the
implementation of those plans can best be accomplished at the local
level.
(3) A long-term, reliable supply of water is essential to protect
the productivity of California's businesses and economic climate.
(4) As part of its long-range planning activities, every urban
water supplier should make every effort to ensure the appropriate
level of reliability in its water service sufficient to meet the
needs of its various categories of customers during normal, dry, and
multiple dry water years.
(5) Public health issues have been raised over a number of
contaminants that have been identified in certain local and imported
water supplies.
(6) Implementing effective water management strategies, including
groundwater storage projects and recycled water projects, may require
specific water quality and salinity targets for meeting groundwater
basins water quality objectives and promoting beneficial use of
recycled water.
(7) Water quality regulations are becoming an increasingly
important factor in water agencies' selection of raw water sources,
treatment alternatives, and modifications to existing treatment
facilities.
(8) Changes in drinking water quality standards may also impact
the usefulness of water supplies and may ultimately impact supply
reliability.
(9) The quality of source supplies can have a significant impact
on water management strategies and supply reliability.
(b) This part is intended to provide assistance to water agencies
in carrying out their long-term resource planning responsibilities to
ensure adequate water supplies to meet existing and future demands
for water.
SEC. 226. Section 10631 of the Water Code is amended to read:
10631. A plan shall be adopted in accordance with this chapter
and shall do all of the following:
(a) Describe the service area of the supplier, including current
and projected population, climate, and other demographic factors
affecting the supplier's water management planning. The projected
population estimates shall be based upon data from the state,
regional, or local service agency population projections within the
service area of the urban water supplier and shall be in five-year
increments to 20 years or as far as data is available.
(b) Identify and quantify, to the extent practicable, the existing
and planned sources of water available to the supplier over the same
five-year increments described in subdivision (a). If groundwater
is identified as an existing or planned source of water available to
the supplier, all of the following information shall be included in
the plan:
(1) A copy of any groundwater management plan adopted by the urban
water supplier, including plans adopted pursuant to Part 2.75
(commencing with Section 10750), or any other specific authorization
for groundwater management.
(2) A description of any groundwater basin or basins from which
the urban water supplier pumps groundwater. For those basins for
which a court or the board has adjudicated the rights to pump
groundwater, a copy of the order or decree adopted by the court or
the board and a description of the amount of groundwater the urban
water supplier has the legal right to pump under the order or decree.
For basins that have not been adjudicated, information as to
whether the department has identified the basin or basins as
overdrafted or has projected that the basin will become overdrafted
if present management conditions continue, in the most current
official departmental bulletin that characterizes the condition of
the groundwater basin, and a detailed description of the efforts
being undertaken by the urban water supplier to eliminate the
long-term overdraft condition.
(3) A detailed description and analysis of the location, amount,
and sufficiency of groundwater pumped by the urban water supplier for
the past five years. The description and analysis shall be based on
information that is reasonably available, including, but not limited
to, historic use records.
(4) A detailed description and analysis of the amount and location
of groundwater that is projected to be pumped by the urban water
supplier. The description and analysis shall be based on information
that is reasonably available, including, but not limited to,
historic use records.
(c) Describe the reliability of the water
supply and vulnerability to seasonal or climatic shortage, to the
extent practicable, and provide data for each of the following:
(1) An average water year.
(2) A single dry water year.
(3) Multiple dry water years.
For any water source that may not be available at a consistent
level of use, given specific legal, environmental, water quality, or
climatic factors, describe plans to supplement or replace that source
with alternative sources or water demand management measures, to the
extent practicable.
(d) Describe the opportunities for exchanges or transfers of water
on a short-term or long-term basis.
(e) (1) Quantify, to the extent records are available, past and
current water use, over the same five-year increments described in
subdivision (a), and projected water use, identifying the uses among
water use sectors, including, but not necessarily limited to, all of
the following uses:
(A) Single-family residential.
(B) Multifamily.
(C) Commercial.
(D) Industrial.
(E) Institutional and governmental.
(F) Landscape.
(G) Sales to other agencies.
(H) Saline water intrusion barriers, groundwater recharge, or
conjunctive use, or any combination thereof.
(I) Agricultural.
(2) The water use projections shall be in the same five-year
increments described in subdivision (a).
(f) Provide a description of the supplier's water demand
management measures. This description shall include all of the
following:
(1) A description of each water demand management measure that is
currently being implemented, or scheduled for implementation,
including the steps necessary to implement any proposed measures,
including, but not limited to, all of the following:
(A) Water survey programs for single-family residential and
multifamily residential customers.
(B) Residential plumbing retrofit.
(C) System water audits, leak detection, and repair.
(D) Metering with commodity rates for all new connections and
retrofit of existing connections.
(E) Large landscape conservation programs and incentives.
(F) High-efficiency washing machine rebate programs.
(G) Public information programs.
(H) School education programs.
(I) Conservation programs for commercial, industrial, and
institutional accounts.
(J) Wholesale agency programs.
(K) Conservation pricing.
(L) Water conservation coordinator.
(M) Water waste prohibition.
(N) Residential ultra-low-flush toilet replacement programs.
(2) A schedule of implementation for all water demand management
measures proposed or described in the plan.
(3) A description of the methods, if any, that the supplier will
use to evaluate the effectiveness of water demand management measures
implemented or described under the plan.
(4) An estimate, if available, of existing conservation savings on
water use within the supplier's service area, and the effect of the
savings on the supplier's ability to further reduce demand.
(g) An evaluation of each water demand management measure listed
in paragraph (1) of subdivision (f) that is not currently being
implemented or scheduled for implementation. In the course of the
evaluation, first consideration shall be given to water demand
management measures, or combination of measures, that offer lower
incremental costs than expanded or additional water supplies. This
evaluation shall do all of the following:
(1) Take into account economic and noneconomic factors, including
environmental, social, health, customer impact, and technological
factors.
(2) Include a cost-benefit analysis, identifying total benefits
and total costs.
(3) Include a description of funding available to implement any
planned water supply project that would provide water at a higher
unit cost.
(4) Include a description of the water supplier's legal authority
to implement the measure and efforts to work with other relevant
agencies to ensure the implementation of the measure and to share the
cost of implementation.
(h) Include a description of all water supply projects and water
supply programs that may be undertaken by the urban water supplier to
meet the total projected water use as established pursuant to
subdivision (a) of Section 10635. The urban water supplier shall
include a detailed description of expected future projects and
programs, other than the demand management programs identified
pursuant to paragraph (1) of subdivision (f), that the urban water
supplier may implement to increase the amount of the water supply
available to the urban water supplier in average, single-dry, and
multiple-dry water years. The description shall identify specific
projects and include a description of the increase in water supply
that is expected to be available from each project. The description
shall include an estimate with regard to the implementation timeline
for each project or program.
(i) Urban water suppliers that are members of the California Urban
Water Conservation Council and submit annual reports to that council
in accordance with the "Memorandum of Understanding Regarding Urban
Water Conservation in California," dated September 1991, may submit
the annual reports identifying water demand management measures
currently being implemented, or scheduled for implementation, to
satisfy the requirements of subdivisions (f) and (g).
SEC. 227. Section 11912 of the Water Code is amended to read:
11912. The department, in fixing and establishing prices, rates,
and charges for water and power, shall include as a reimbursable cost
of any state water project an amount sufficient to repay all costs
incurred by the department, directly or by contract with other
agencies, for the preservation of fish and wildlife and determined to
be allocable to the costs of the project works constructed for the
development of that water and power, or either. Costs incurred for
the enhancement of fish and wildlife or for the development of public
recreation shall not be included in the prices, rates, and charges
for water and power, and shall be nonreimbursable costs.
SEC. 228. Section 13627.4 of the Water Code is amended to read:
13627.4. (a) The civil liability described in Section 13627.1,
13627.2, or 13627.3 may be administratively imposed in accordance
with Article 2.5 (commencing with Section 13323) of Chapter 5, except
that the executive director shall issue the complaint with review by
the state board.
(b) A remedy under this chapter is in addition to, and does not
supersede or limit, any other remedy, civil or criminal, except that
no liability is recoverable against an operator under subdivision (c)
of Section 13627.1 for a violation for which liability is recovered
against the operator under Section 13350 or 13385.
SEC. 229. Section 213.5 of the Welfare and Institutions Code is
amended to read:
213.5. (a) After a petition has been filed pursuant to Section
311 to declare a child a dependent child of the juvenile court, and
until the time that the petition is dismissed or dependency is
terminated, upon application in the manner provided by Section 527 of
the Code of Civil Procedure, the juvenile court may issue ex parte
orders (1) enjoining any person from molesting, attacking, striking,
sexually assaulting, stalking, or battering the child or any other
child in the household; (2) excluding any person from the dwelling of
the person who has care, custody, and control of the child; and (3)
enjoining any person from behavior, including contacting,
threatening, or disturbing the peace of the child, that the court
determines is necessary to effectuate orders under paragraph (1) or
(2). A court issuing an ex parte order pursuant to this subdivision
may simultaneously issue an ex parte order enjoining any person from
contacting, threatening, molesting, attacking, striking, sexually
assaulting, stalking, battering, or disturbing the peace of any
parent, legal guardian, or current caretaker of the child, regardless
of whether the child resides with that parent, legal guardian, or
current caretaker, upon application in the manner provided by Section
527 of the Code of Civil Procedure.
(b) After a petition has been filed pursuant to Section 601 or 602
to declare a child a ward of the juvenile court, and until the time
that the petition is dismissed or wardship is terminated, upon
application in the manner provided by Section 527 of the Code of
Civil Procedure, the juvenile court may issue ex parte orders (1)
enjoining any person from molesting, attacking, threatening, sexually
assaulting, stalking, or battering the child; (2) excluding any
person from the dwelling of the person who has care, custody, and
control of the child; or (3) enjoining the child from contacting,
threatening, stalking, or disturbing the peace of any person the
court finds to be at risk from the conduct of the child, or with whom
association would be detrimental to the child.
(c) In the case in which a temporary restraining order is granted
without notice, the matter shall be made returnable on an order
requiring cause to be shown why the order should not be granted, on
the earliest day that the business of the court will permit, but not
later than 15 days or, if good cause appears to the court, 20 days
from the date the temporary restraining order is granted. The court
may, on the motion of the person seeking the restraining order, or on
its own motion, shorten the time for service on the person to be
restrained of the order to show cause. Any hearing pursuant to this
section may be held simultaneously with any regularly scheduled
hearings held in proceedings to declare a child a dependent child or
ward of the juvenile court pursuant to Section 300, 601, or 602, or
subsequent hearings regarding the dependent child or ward.
(d) The juvenile court may issue, upon notice and a hearing, any
of the orders set forth in subdivisions (a), (b), and (c). Any
restraining order granted pursuant to this subdivision shall remain
in effect, in the discretion of the court, not to exceed three years,
unless otherwise terminated by the court, extended by mutual consent
of all parties to the restraining order, or extended by further
order of the court on the motion of any party to the restraining
order.
(e) (1) The juvenile court may issue an order made pursuant to
subdivision (a), (c), or (d) excluding a person from a residence or
dwelling. This order may be issued for the time and on the
conditions that the court determines, regardless of which party holds
legal or equitable title or is the lessee of the residence or
dwelling.
(2) The court may issue an order under paragraph (1) only on a
showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the other party or any other person under the care, custody,
and control of the other party, or any minor child of the parties or
of the other party.
(C) That physical or emotional harm would otherwise result to the
other party, to any person under the care, custody, and control of
the other party, or to any minor child of the parties or of the other
party.
(f) Any order issued pursuant to subdivision (a), (b), (c), or (d)
shall state on its face the date of expiration of the order.
(g) The juvenile court shall order any designated person or
attorney to mail a copy of any order, or extension, modification, or
termination thereof, granted pursuant to subdivision (a), (b), (c),
or (d), by the close of the business day on which the order,
extension, modification, or termination was granted, and any
subsequent proof of service thereof, to each local law enforcement
agency designated by the person seeking the restraining order or his
or her attorney having jurisdiction over the residence of the person
who has care, custody, and control of the child and other locations
where the court determines that acts of domestic violence or abuse
against the child or children are likely to occur. Each appropriate
law enforcement agency shall make available through an existing
system for verification, information as to the existence, terms, and
current status of any order issued pursuant to subdivision (a), (b),
(c), or (d) to any law enforcement officer responding to the scene of
reported domestic violence or abuse.
(h) Any willful and knowing violation of any order granted
pursuant to subdivision (a), (b), (c), or (d) shall be a misdemeanor
punishable under Section 273.65 of the Penal Code.
(i) A juvenile court restraining order related to domestic
violence issued by a court pursuant to this section shall be issued
on forms adopted by the Judicial Council of California and that have
been approved by the Department of Justice pursuant to subdivision
(i) of Section 6380 of the Family Code. However, the fact that an
order issued by a court pursuant to this section was not issued on
forms adopted by the Judicial Council and approved by the Department
of Justice shall not, in and of itself, make the order unenforceable.
(j) Information on any juvenile court restraining order related to
domestic violence issued by a court pursuant to this section shall
be transmitted to the Department of Justice in accordance with
subdivision (b) of Section 6380 of the Family Code.
(k) (1) Prior to a hearing on the issuance or denial of an order
under this part, a search shall be conducted as described in
subdivision (a) of Section 6306 of the Family Code.
(2) Prior to deciding whether to issue an order under this part,
the court shall consider the following information obtained pursuant
to a search conducted under paragraph (1): any conviction for a
violent felony specified in Section 667.5 of the Penal Code or a
serious felony specified in Section 1192.7 of the Penal Code; any
misdemeanor conviction involving domestic violence, weapons, or other
violence; any outstanding warrant; parole or probation status; any
prior restraining order; and any violation of a prior restraining
order.
(3) (A) If the results of the search conducted pursuant to
paragraph (1) indicate that an outstanding warrant exists against the
subject of the search, the court shall order the clerk of the court
to immediately notify, by the most effective means available,
appropriate law enforcement officials of any information obtained
through the search that the court determines is appropriate. The law
enforcement officials so notified shall take all actions necessary
to execute any outstanding warrants or any other actions, as
appropriate and as soon as practicable.
(B) If the results of the search conducted pursuant to paragraph
(1) indicate that the subject of the search is currently on parole or
probation, the court shall order the clerk of the court to
immediately notify, by the most effective means available, the
appropriate parole or probation officer of any information obtained
through the search that the court determines is appropriate. The
parole or probation officer so notified shall take all actions
necessary to revoke any parole or probation, or any other actions,
with respect to the subject person, as appropriate and as soon as
practicable.
SEC. 230. Section 727.4 of the Welfare and Institutions Code is
amended to read:
727.4. (a) Notice of any hearing pursuant to Section 727, 727.2,
or 727.3 shall be mailed by the probation officer to the minor, the
minor's parent or guardian, any adult provider of care to the minor
including, but not limited to, foster parents, relative caregivers,
preadoptive parents, community care facility, or foster family agency
and to the counsel of record if the counsel of record was not
present at the time that the hearing was set by the court, by
first-class mail addressed to the last known address of the person to
be notified, or shall be personally served on those persons, not
earlier than 30 days nor later than 15 days preceding the date of the
hearing. The notice shall contain a statement regarding the nature
of the status review or permanency planning hearing and any change in
the custody or status of the minor being recommended by the
probation department. The notice shall also include a statement
informing the foster parents, relative caregivers, or preadoptive
parents that he or she may attend all hearings or may submit any
information he or she deems relevant to the court in writing. The
foster parents, relative caregiver, and preadoptive parents are
entitled to notice and opportunity to be heard but need not be made
parties to the proceedings. Proof of notice shall be filed with the
court.
(b) At least 10 calendar days prior to each status review and
permanency planning hearing, after the hearing during which the court
orders that the care, custody and control of the minor to be under
the supervision of the probation officer for placement pursuant to
subdivision (a) of Section 727, the probation officer shall file a
social study report with the court, pursuant to the requirements
listed in Section 706.5.
(c) The probation department shall inform the minor, the minor's
parent or guardian, and all counsel of record that a copy of the
social study prepared for the hearing will be available 10 days prior
to the hearing and may be obtained from the probation officer.
(d) As used in Article 15 (commencing with Section 625) to Article
18 (commencing with Section 725), inclusive:
(1) "Foster care" means residential care provided in any of the
settings described in Section 11402.
(2) "At risk of entering foster care" means that conditions within
a minor's family may necessitate his or her entry into foster care
unless those conditions are resolved.
(3) "Preadoptive parent" means a licensed foster parent who has
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a licensed adoption
agency.
(4) "Date of entry into foster care" means the date that is 60
days after the date on which the minor was removed from his or her
home, unless one of the exceptions below applies:
(A) If the minor is detained pending foster care placement, and
remains detained for more than 60 days, then the date of entry into
foster care means the date the court adjudges the minor a ward and
orders the minor placed in foster care under the supervision of the
probation officer.
(B) If, before the minor is placed in foster care, the minor is
committed to a ranch, camp, school, or other institution pending
placement, and remains in that facility for more than 60 days, then
the "date of entry into foster care" is the date the minor is
physically placed in foster care.
(C) If at the time the wardship petition was filed, the minor was
a dependent of the juvenile court and in out-of-home placement, then
the "date of entry into foster care" is the earlier of the date the
juvenile court made a finding of abuse or neglect, or 60 days after
the date on which the child was removed from his or her home.
(5) "Reasonable efforts" means:
(A) Efforts made to prevent or eliminate the need for removing the
minor from the minor's home;
(B) Efforts to make it possible for the minor to return home,
including, but not limited to, case management, counseling, parenting
training, mentoring programs, vocational training, educational
services, substance abuse treatment, transportation, and therapeutic
day services; and
(C) Efforts to complete whatever steps are necessary to finalize a
permanent plan for the minor.
(6) "Relative" means an adult who is related to the minor by
blood, adoption, or affinity within the fifth degree of kinship
including stepparents, stepsiblings, and all relatives whose status
is preceded by the words "great," "great-great," "grand," or the
spouse of any of these persons even if the marriage was terminated by
death or dissolution.
(7) "Hearing" means a noticed proceeding with findings and orders
that are made on a case-by-case basis, heard by either of the
following:
(A) A judicial officer, in a courtroom, recorded by a court
reporter.
(B) An administrative panel, provided that the hearing is a status
review hearing and that the administrative panel meets the following
conditions:
(i) The administrative review shall be open to participation by
the minor and parents or legal guardians and all those persons
entitled to notice under subdivision (a).
(ii) The minor and his or her parents or legal guardians receive
proper notice as required in subdivision (a).
(iii) The administrative review panel is composed of persons
appointed by the presiding judge of the juvenile court, the
membership of which shall include at least one person who is not
responsible for the case management of, or delivery of services to,
the minor or the parents who are the subjects of the review.
(iv) The findings of the administrative review panel shall be
submitted to the juvenile court for the court's approval and shall
become part of the official court record.
SEC. 231. Section 903.5 of the Welfare and Institutions Code is
amended to read:
903.5. In addition to the requirements of Section 903.4, and
notwithstanding any other provision of law, the parent or other
person legally liable for the support of a minor, who voluntarily
places the minor in 24-hour out-of-home care, shall be liable for the
cost of the minor's care, support, and maintenance when the minor
receives Aid to Families with Dependent Children-Foster Care
(AFDC-FC), Supplemental Security Income-State Supplementary Program
(SSI-SSP), or county-only funds. As used in this section, "parent"
includes any person specified in Section 903. Whenever the county
welfare department or the placing agency determines that a court
order would be advisable and effective, the department or the agency
shall notify the local child support agency, or the financial
evaluation officer designated pursuant to Section 903.45, who shall
proceed pursuant to Section 903.4 or 903.45.
SEC. 232. Section 9320 of the Welfare and Institutions Code is
amended to read:
9320. (a) The department shall establish a task force to study
and make recommendations, including action steps and timelines, on
the improvement of legal services delivery to senior citizens in
California by exploring the following matters:
(1) Actions to ensure that all area agencies on aging allocate
sufficient funding to local legal assistance providers. Actions may
include, but not be limited to, the establishment of a minimum
percentage of area agency on aging funding for legal assistance
providers in California.
(2) Ways to ensure uniformity in the provision of legal services
throughout the state, including, but not limited to, possible
development of uniform statewide standards for the delivery of legal
services in California.
(3) Measures to evaluate and monitor local legal assistance
programs to ensure compliance with the federal Older Americans Act
and its implementing regulations.
(4) Establishment of statewide reporting system to assess the
effectiveness of a legal assistance program for seniors in the state.
(5) The possible establishment of a statewide legal hotline for
seniors.
(6) Opportunities to enhance communications among the various
service providers and to ensure efficient service delivery involving
local programs and a statewide hotline, should it come into
existence.
(7) Opportunities for joint training for senior legal services
advocates around the state.
(8) Other states' legal services delivery networks.
(b) The director shall serve on or appoint a representative to the
task force, and shall appoint the following additional members:
(1) One member of the Legislature or his or her representative.
(2) Three legal service director representatives of existing legal
service programs for seniors.
(3) The Legal Services Developer at the California Department of
Aging.
(4) Two area agency on aging directors.
(5) Two representatives of senior advocacy organizations.
(6) A representative of the State Bar of California.
(c) The Member of the Legislature, or his or her representative,
shall serve on the task force to the extent that the service is
compatible with the duties of a Member of the Legislature.
(d) The task force shall report and make its recommendations to
the Legislature on or before September 1, 2002.
SEC. 233. Section 9681 of the Welfare and Institutions Code is
amended to read:
9681. (a) Funding of projects pursuant to this article shall be
subject to the appropriation of funds by the Legislature in the
Budget Act or another statute.
(b) Appropriations made pursuant to subdivision (a) shall be
expended to fund grants to eligible local public agencies or
nonprofit organizations in an amount not to exceed one hundred fifty
thousand dollars ($150,000) each.
SEC. 234. Section 11203 of the Welfare and Institutions Code is
amended to read:
11203. (a) During those times as the federal government provides
funds for the care of a needy relative with whom a needy child or
needy children are living, aid to the child or children for any month
includes aid to meet the needs of that relative, if money payments
are made with respect to the child or children for that month, and if
the relative is not receiving aid under Chapter 3 (commencing with
Section 12000) or 5 (commencing with Section 13000) of this part or
Part A of Title XVI of the Social Security Act for that month. Needy
relatives under this chapter include only natural or adoptive
parents, the spouse of a natural or adoptive parent, and other needy
caretaker relatives.
(b) (1) The parent or parents shall be considered living with the
needy child or needy children for a period of up to 180 consecutive
days of the needy child's or children's absence from the family
assistance unit and the parent or parents shall be eligible for
services under this chapter including services funded under Sections
15204.2 and 15204.8 if all of the following conditions are met:
(A) The child has been removed from the parent or parents and
placed in out-of-home care.
(B) When the child was removed from the parent or parents, the
family was receiving aid under this section.
(C) The county has determined that the provision of services under
this chapter including services funded under Sections 15204.2 and
15204.8, is necessary for reunification.
(2) For purposes of this subdivision, the
parent or parents shall not be eligible for any payment of aid under
Section 11450.
(c) The department shall revise its state Temporary Assistance for
Needy Families plan to incorporate the provisions of subdivision (b)
and to incorporate the good cause exception provisions authorized by
paragraph (10) of subsection (a) of Section 608 of Title 42 of the
United States Code with respect to cases where reunification occurs
after 180 consecutive days from the date of the removal of the child
or children from the home.
SEC. 235. Section 14087.961 of the Welfare and Institutions Code
is amended to read:
14087.961. Governance of the commission shall be vested in a
governing body consisting of 13 members, each of whom shall have a
fiduciary duty to act in the best interest of the commission and the
local initiative, nominated by the following entities, and appointed
by the board of supervisors:
(a) Four members shall be nominated by the board of supervisors to
represent the County of Los Angeles. No more than one member
nominated by the board of supervisors shall be a member of the board
of supervisors and each remaining member nominated by the board of
supervisors shall possess experience as a health care administrator
or as a health care provider.
(b) One member shall be a representative of private hospitals that
have Medi-Cal disproportionate share status, or if that status no
longer exists, that serve an equivalent patient population, who shall
be nominated by the Hospital Council of Southern California.
(c) One member shall be a representative of private hospitals that
do not have Medi-Cal disproportionate share status, who shall be
nominated by the Hospital Council of Southern California.
(d) One member shall be a representative of free and community
clinics, who shall be nominated by an entity or group recognized by
the board of supervisors as representing free and community clinics.
(e) One member shall be a representative of federally qualified
health centers, who shall be nominated by an entity or group
recognized by the board of supervisors as representing federally
qualified health centers, or if that status no longer exists, an
equivalent group of health centers.
(f) One member shall be a physician representative, who shall be
nominated by the Los Angeles County Medical Association, in
consultation with other physician associations within the county.
(g) One member shall be a representative of Knox-Keene licensed
prepaid health plans, who shall be nominated by the California
Association of Health Plans.
(h) One member shall represent health care consumers, and at the
time of being nominated, shall be a health care consumer. The
initial nominee shall be nominated by the working group on the role
of the consumer for the first nominee, and thereafter, by a process
determined by the community advisory committee under which only
health care consumers may nominate and vote for appointees.
(i) One member shall be a health care consumer advocate, who shall
represent health care consumers. The initial nominee shall be
nominated by the working group on the role of the consumer for the
first nominee, and thereafter, by a process determined by the
community advisory committee under which only health care consumers
may nominate and vote for appointees.
(j) One member shall be a children's health care provider
representative, who shall be nominated by the Children's Planning
Council as the coordinating entity for organizations and agencies
providing direct services to, or advocacy for, children and families
within the county.
SEC. 236. Section 14103.5 of the Welfare and Institutions Code is
amended to read:
14103.5. (a) A noncontract hospital that is in a closed health
facility planning area is not eligible to receive reimbursement for
services provided to a Medi-Cal beneficiary, unless the noncontract
hospital provides necessary emergency services to a Medi-Cal
beneficiary who is in a life threatening or emergency situation, but
cannot be sufficiently stabilized in order to facilitate transport to
a contracting hospital.
(b) A noncontract hospital in a closed health facility planning
area that provides necessary emergency services to a Medi-Cal
beneficiary who is in a life threatening or emergency situation, but
cannot be sufficiently stabilized in order to facilitate transport to
a contracting hospital, may only be reimbursed for those necessary
emergency services when it obtains an approved treatment
authorization request.
(c) Any treatment authorization request submitted for any service
classified as a necessary emergency service, which would have been
subject to prior authorization had it not been so classified, shall
be supported by the attending physician's statement that does all of
the following:
(1) Describes in detail the nature of the emergency or life
threatening situation, including relevant clinical information about
the patient's condition.
(2) States why the patient could not be sufficiently stabilized
for transport to a contracting hospital and why the necessary
emergency services rendered were considered to be immediately
required. A mere statement that an emergency existed is not
sufficient. The treatment authorization request shall be
comprehensive enough to support a finding that an emergency or a life
threatening situation existed.
(3) Contains the signature of the attending physician who had
direct knowledge of the emergency described in the statement.
(d) For the purposes of this section, "necessary emergency
services" are limited to those health services medically necessary
for alleviation of severe pain or immediate diagnosis and treatment
of unforeseen medical conditions which, if not immediately diagnosed
and treated, could lead to significant disability or death.
(e) For the purposes of this section, a "noncontract hospital"
means a hospital that has not contracted with the department pursuant
to Article 2.6 (commencing with Section 14081) for the provision of
inpatient services to Medi-Cal beneficiaries.
(f) Nothing in this section shall be construed as limiting
reimbursement for medically necessary care following stabilization,
in the event that a contract hospital does not accept transfer of the
patient or pending the transfer to a contract hospital.
SEC. 237. Section 14132.99 of the Welfare and Institutions Code is
amended to read:
14132.99. For services provided pursuant to Chapter 7 (commencing
with Section 14000) of Part 3 of Division 9, Section 14499.5, or
Chapter 1 (commencing with Section 101525) to Chapter 4 (commencing
with Section 101825), inclusive, of Part 4 of Division 101 of the
Health and Safety Code, the cost for services defined in Section
1370.6 of the Health and Safety Code, and Sections 14087.11 and
14132.98 shall be provided by state only funds if federal financial
participation is not available.
SEC. 237.5. Section 15657 of the Welfare and Institutions Code is
amended to read:
15657. Where it is proven by clear and convincing evidence that a
defendant is liable for physical abuse as defined in Section
15610.63, neglect as defined in Section 15610.57, or financial abuse
as defined in Section 15610.30, and that the defendant has been
guilty of recklessness, oppression, fraud, or malice in the
commission of this abuse, in addition to all other remedies otherwise
provided by law:
(a) The court shall award to the plaintiff reasonable attorney's
fees and costs. The term "costs" includes, but is not limited to,
reasonable fees for the services of a conservator, if any, devoted to
the litigation of a claim brought under this article.
(b) The limitations imposed by Section 337.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
SEC. 238. Section 19000 of the Welfare and Institutions Code is
amended to read:
19000. (a) The Legislature finds and declares as follows:
(1) Work is a valuable and important activity, both for
individuals and society, and fulfills the need of an individual to be
productive, promotes independence, enhances self-esteem, and allows
for participation in the mainstream of life.
(2) Disability is a natural part of human experience and in no way
diminishes the capacity of individuals to live independently, enjoy
self-determination, make choices, contribute to society, pursue
meaningful careers, and enjoy inclusion and integration in the
economic, political, social, cultural, and educational mainstream of
society.
(3) As a group, individuals with disabilities experience
staggering levels of unemployment and poverty.
(4) Increased employment of, and independent living for,
individuals with disabilities can be achieved by providing
individualized training, independent living services, educational and
support services, and meaningful opportunities for employment in
integrated work settings with reasonable accommodations.
(5) Individuals with disabilities, including individuals with the
most severe disabilities, have demonstrated their ability to achieve
gainful employment in integrated settings if appropriate services and
supports are provided.
(6) The provision of vocational rehabilitation services can enable
individuals with disabilities, including individuals with the most
severe disabilities, to pursue meaningful careers by securing gainful
employment commensurate with their abilities and capabilities.
(b) The purpose of this division is to assist the Department of
Rehabilitation in operating comprehensive, coordinated, effective,
efficient, and accountable programs of vocational rehabilitation and
independent living that are designed to assess, plan, develop, and
provide services for individuals with disabilities, particularly
individuals with the most severe disabilities, consistent with their
strengths, resources, priorities, concerns, abilities, and
capabilities, so that these individuals may prepare for and engage in
gainful employment and live more independently.
(c) The Department of Rehabilitation's vocational rehabilitation
and independent living programs shall be consistent with the national
policy toward people with disabilities articulated in the Americans
with Disabilities Act of 1990 (Public Law 101-336) and the
Rehabilitation Act Amendments of 1998 (Public Law 105-220).
(d) It shall be the goal of the Department of Rehabilitation to
provide individuals with disabilities with the tools necessary to do
all of the following:
(1) Make informed choices and decisions.
(2) Maximize employment, independence, and economic and social
self-sufficiency in the mainstream of society.
(3) Achieve equality of opportunity and inclusion and integration
into all aspects of society.
(e) The Department of Rehabilitation's vocational rehabilitation
and independent living programs, projects, and activities shall be
carried out in a manner consistent with the following principles:
(1) Respect for individual dignity, personal responsibility,
self-determination, and pursuit of independent living and meaningful
careers, based on informed choice of individuals with disabilities.
(2) Respect for the privacy, rights, and equal access of
individuals with disabilities, including, but not limited to, the use
of accessible formats.
(3) Individuals with disabilities, including individuals with the
most severe disabilities, shall be generally presumed to be capable
of engaging in gainful employment, and the provision of
individualized vocational rehabilitation services can improve their
ability to become gainfully employed.
(4) Promotion of independence, inclusion, integration, and full
participation of individuals with disabilities.
(5) Individuals with disabilities shall be provided the
opportunities to obtain competitive employment in integrated
settings.
(6) Individuals with disabilities shall be active participants in
their own rehabilitation programs, including, but not limited to,
making meaningful and informed choices about the selection of their
vocational goals and objectives and the vocational rehabilitation
services they receive.
(7) Support for the involvement of a parent, a family member, a
guardian, an advocate, or an authorized representative, if an
individual with a disability requests, desires, or needs that
support.
(8) Individuals with disabilities and their advocates are full
partners in the vocational rehabilitation and independent living
programs and shall be involved on a regular basis and in a meaningful
manner with respect to policy development and implementation.
(9) Qualified vocational rehabilitation counselors, and other
qualified personnel facilitate the accomplishment of the employment
and independent living goals and objectives of an individual.
(10) Accountability measures must facilitate and not impede the
accomplishment of the goals and objectives of the department's
programs, including providing vocational rehabilitation and
independent living services to, among others, individuals with the
most severe disabilities.
SEC. 239. Section 5 of the Santa Clara Valley Water District Act
(Chapter 1405 of the Statutes of 1951) is amended to read.
Sec. 5. The district is hereby declared to be a body corporate and
politic and, in addition to other powers granted by this act, may
take action to carry out all of the following purposes:
1. To have perpetual succession.
2. To sue and be sued in the name of the district in all actions
and proceedings in all courts and tribunals of competent
jurisdiction.
3. To adopt a seal and alter it at pleasure.
4. To acquire by grant, purchase, lease, gift, devise, contract,
construction, or otherwise, and to hold, use, enjoy, sell, let, and
dispose of real and personal property of every kind, including lands,
structures, buildings, rights-of-way, easements, and privileges, and
to construct, maintain, alter, and operate any and all works or
improvements, within or outside the district, necessary or proper to
carry out any of the objects or purposes of this act and convenient
to the full exercise of its powers, and to complete, extend, add to,
alter, remove, repair, or otherwise improve any works, or
improvements, or property acquired by it as authorized by this act.
5. To store water in surface or underground reservoirs within or
outside of the district for the common benefit of the district or of
any zone or zones affected; to conserve, reclaim, recycle,
distribute, store, and manage water for present and future use within
the district; to appropriate and acquire water and water rights, and
import water into the district and to conserve within or outside the
district, water for any purpose useful to the district; and to do
any and every lawful act necessary to be done that sufficient water
may be available for any present or future beneficial use or uses of
the lands or inhabitants within the district, including, but not
limited to, the acquisition, storage, and distribution of water for
irrigation, domestic, fire protection, municipal, commercial,
industrial, environmental, and all other beneficial uses; to
distribute, sell, or otherwise dispose of, outside the district, any
waters not needed for beneficial uses within the district; to
commence, maintain, intervene in, defend, or compromise, in the name
of the district on behalf of the landowners therein, or otherwise,
and to assume the costs and expenses of any action or proceeding
involving or affecting the ownership or use of waters or water rights
within or outside the district, used or useful for any purpose of
the district or of common benefit to any land situated therein, or
involving the wasteful use of water therein; to commence, maintain,
intervene in, defend, and compromise and to assume the cost and
expenses of any and all actions and proceedings now or hereafter
begun; to prevent interference with or diminution of, or to declare
rights in the natural flow of any stream or surface or subterranean
supply of water used or useful for any purpose of the district or of
common benefit to the lands within the district or to its
inhabitants; to prevent unlawful exportation of water from the
district; to prevent contamination, pollution, or otherwise rendering
unfit for beneficial use the surface or subsurface water used or
useful in the district, and to commence, maintain, and defend actions
and proceedings to prevent any such interference with the described
waters as may endanger or damage the inhabitants, lands, or use of
water in, or flowing into, the district; provided, however, that the
district shall not have power to intervene or take part in, or to
pay the costs or expenses of, actions or controversies between the
owners of lands or water rights that do not affect the interests of
the district.
6. To control the flood and storm waters of the district and the
flood and storm waters of streams that have their sources outside of
the district, but which streams and the floodwaters thereof, flow
into said district, and to conserve such waters for beneficial and
useful purposes of the district by spreading, storing, retaining, and
causing to percolate into the soil within or without the district,
or to save or conserve in any manner all or any of those waters and
protect from damage from those flood or storm waters the
watercourses, watersheds, public highways, life, and property in the
district, and the watercourses outside of the district of streams
flowing into the district.
7. To enter upon any land, to make surveys and locate the
necessary works of improvement and the lines for channels, conduits,
canals, pipelines, roadways, and other rights-of-way; to acquire by
purchase, lease, contract, gift, devise, or other legal means all
lands and water and water rights and other property necessary or
convenient for the construction, use, supply, maintenance, repair,
and improvement of the works, including works constructed and being
constructed by private owners, lands for reservoirs for storage of
necessary water, and all necessary appurtenances, and also where
necessary or convenient to that end, and for those purposes and uses,
to acquire and to hold in the name of the state, the capital stock
of any mutual water company or corporation, domestic or foreign,
owning water or water rights, canals, waterworks, franchises,
concessions, or rights, when the ownership of such stock is necessary
to secure a water supply required by the district or any part
thereof, upon the condition that when holding such stock, the
district shall be entitled to all the rights, powers, and privileges,
and shall be subject to all the obligations and liabilities
conferred or imposed by law upon other holders of such stock in the
same company; to cooperate with, act in conjunction with, enter into
and to do any acts necessary for the proper performance of any
agreement with the State of California, or any of its engineers,
officers, boards, commissions, departments, or agencies, or with the
government of the United States, or any of its engineers, officers,
boards, commissions, departments, or agencies or with any state, city
and county, city, county, district of any kind, public or private
corporation, association, firm, or individual, or any number of them,
for the ownership, joint acquisition, leasing, disposition, use,
management, construction, installation, extension, maintenance,
repair, or operation of any rights, works, or other property of a
kind which might lawfully be acquired or owned by the district or for
the lawful performance of any power or purpose of the district
provided for in this act, including, but not limited to, the granting
of the right to the use of any water or the right to store that
water in any reservoir of the district or to carrying that water
through any tunnel, canal, ditch, or conduit of the district or for
the delivery, sale, or exchange of any water right, water supply, or
water pumped, stored, appropriated, or otherwise acquired or secured
for the use of the district, or for controlling drainage waters, or
flood or storm waters of streams in or running into the district, or
for the protection of life or property therein, or for the purpose of
conserving any waters for the beneficial use within the district, or
in any other works, uses, or purposes provided for in this act; and
to adopt and carry out any definite plan or system for accomplishing,
facilitating, or financing all work which may lawfully be
accomplished by the district and to enforce that plan or system by
resolution or ordinance.
8. To carry on technical and other necessary investigations, make
measurements, collect data, make analyses, studies, and inspections
pertaining to water supply, water rights, control of flood and storm
waters, and use of water both within and outside the district
relating to watercourses or streams flowing in or into the district.
For these purposes, the district shall have the right of access
through its authorized representatives to all properties within the
district and elsewhere relating to watercourses and streams flowing
in or into said district. The district, through its authorized
representatives, may enter upon such lands and make examinations,
surveys, and maps thereof.
9. To prescribe, revise, and collect fees and charges for
facilities furnished or to be furnished to any new building,
improvement, or structure by the use of any flood control or storm
drainage system constructed or to be constructed in a zone of the
district, and whenever a drainage or flood control problem is
referred to the district by the County of Santa Clara, or any
incorporated city therein, to require the installation of drainage or
flood control improvements necessary and/or convenient for needs of
the zone, including, but not limited to, residential, subdivision,
commercial, and industrial drainage and flood control needs, that
county and those cities being hereby authorized to refer all drainage
and flood control problems, arising under the Subdivision Map Act
(Division 2 (commencing with Section 66410) of Title 7 of the
Government Code) or otherwise, to the district for solution.
Revenues derived under this section shall be used for the
acquisition, construction, reconstruction, maintenance, and operation
of the flood control or storm drainage facilities of the zone, to
reduce the principal or interest of any bonded indebtedness thereof,
or to replace funds expended on behalf of that zone derived from the
fund created pursuant to subdivision 1 of Section 13.
10. To incur indebtedness, and to issue bonds in accordance with
this act.
11. To cause taxes or assessments to be levied and collected for
the purpose of paying any obligation of the district, and to carry
out any of the purposes of this act, in the manner hereinafter
provided.
12. To make contracts, and to employ labor, and to do all acts
necessary for the full exercise of all powers vested in the district
or any of the officers thereof, by this act.
13. To have the power and right to disseminate information
concerning the rights, properties, activities, plans, and proposals
of the district; provided, however, that expenditures during any
fiscal year for those purposes shall not exceed one-half cent
($0.005) for each one hundred dollars ($100) of assessed valuation of
the district.
14. To pay to any city, public agency, district, or educational
institution recognized under Chapter 3 (commencing with Section
94301) of Part 59 of the Education Code, a portion of the cost of
water imported by that city, public agency, district, or educational
institution into, for use within, and of benefit to the Santa Clara
Valley Water District.
15. To establish designated floodways in accordance with the
Cobey-Alquist Flood Plain Management Act (Chapter 4 (commencing with
Section 8400) of Part 2 of Division 5 of the Water Code).
16. To acquire, construct, maintain, operate, and install
landscaping or recreational facilities in connection with any dam,
reservoir, or other works owned or controlled by the district.
17. To acquire, construct, maintain, operate and install, lease,
and control facilities for the generation, transmission,
distribution, sale, exchange, and lease of electric power.
18. To require the sealing of abandoned or unused wells according
to standards adopted by the board by ordinance and designed to
protect the groundwater resources of the district from contamination.
Upon and following the effective date of the ordinance, the County
of Santa Clara or any incorporated city therein shall require all
persons applying for any land development permit or approval to show
the existence and location of any water well upon a map of the
property the subject of the application. When a well is shown, the
map shall be referred to the district immediately upon receipt for
review and investigation. If upon review and investigation the
district determines that the well or wells are to be sealed by the
applicant pursuant to the ordinance, the determination shall be
transmitted promptly to the applicant by the district as a
requirement in writing.
SEC. 240. The amendment and renumbering of the heading of Article
5 (commencing with Section 5096.652) of Chapter 1.696 of Division 2
of the Public Resources Code proposed by Section 182 of this act
shall only become operative if Proposition 40 is approved by the
voters at the March 5, 2002, statewide direct primary election.
SEC. 241. Any section of any act enacted by the Legislature during
the 2002 calendar year that takes effect on or before January 1,
2003, and that amends, amends and renumbers, adds, repeals and adds,
or repeals a section that is amended, amended and renumbered, added,
repealed and added, or repealed by this act, shall prevail over this
act, whether that act is enacted prior to, or subsequent to, the
enactment of this act. The repeal, or repeal and addition, of any
article, chapter, part, title, or division of any code by this act
shall not become operative if any section of any other act that is
enacted by the Legislature during the 2002 calendar year and takes
effect on or before January
1, 2003, amends, amends and renumbers, adds, repeals and adds, or
repeals any section contained in that article, chapter, part, title,
or division.